Opinion
No. 36315.
January 27, 1947. Suggestion of Error Overruled March 17, 1947.
1. RAILROADS.
Where there were no eye-witnesses, evidence which was of doubtful sufficiency to establish that killing of plaintiff's livestock was caused by the running of defendant's train and which without contradiction disclosed that there was no negligence of defendant, required a peremptory instruction for defendant (Code 1942, sec. 1741).
2. RAILROADS.
In action against railroad for value of livestock allegedly killed by train, testimony of witness that whistle of only southbound train then operating indicated a warning to stock upon the track could not import knowledge by train crew of animals' presence, in light of uncontradicted proof that there was no southbound train operating at the time specified by witness.
APPEAL from the circuit court of Forrest county. HON. F.B. COLLINS, J.
Welch Cooper, of Laurel, and Hannah, Simrall Foote, of Hattiesurg, for appellant.
The prima facie statute is not applicable here.
New Orleans Great Northern R. Co. v. Walden, 160 Miss. 102, 133 So. 241; Johnson v. Illinois Cent. R. Co. (Miss.), 39 So. 780; Code of 1942, Sec. 1741.
The appellee was unfortunate in the loss of his animals, but we submit most earnestly that the facts do not show that the appellant in the operation of any train or in any other way brought about their deaths.
New Orleans N.E.R. Co. v. Jones (Miss.), 3 So. 653.
See also Yazoo M.V.R. Co. v. Whittington, 74 Miss. 410, 21 So. 249 New Orleans N.E.R. Co. v. Martin, 126 Miss. 765, 89 So. 621.
E.C. Fishel, of Hattiesburg, for appellee.
Section 1741, Code of 1942, was devised to meet just such cases as the one here presented. The testimony on behalf of the appellee, with the legitimate inferences reasonably and logically deducible therefrom, entitled him to the submission of the issue to the decision of the jury.
New Orleans Great Northern R. Co. v. Walden, 160 Miss. 102, 133 So. 241; New Orleans, M. C.R. Co. v. Harrison, 105 Miss. 18, 61 So. 655; Gulf, M. N.R. Co. v. Seymour, 148 Miss. 456, 114 So. 35; Mobile O.R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; Yazoo M.R. Co. v. Pittman, 169 Miss. 667, 153 So. 382; Johnson v. Illinois Cent R. Co. (Miss.), 39 So. 780.
Appellee filed suit for the value of two animals alleged to have been killed by the negligent running of a train by appellant.
There were no eye-witnesses, and the plaintiff availed of Code 1942, Section 1741, to make a prima facie case. The defendant showed, without contradiction, its complete train schedule affecting the situs of the injuries and death, and disclosed no trains passing the point at the time testified to by plaintiff's witnesses. It is true that two of such witnesses were indefinite as to the time they heard a northbound train pass, but the scope of such uncertainty could hardly encompass the time at which it was claimed the animals were struck. Moreover, the declaration alleged that the animals were struck by a southbound train, and the circumstance would indicate that this theory alone was the only plausible one.
The physical signs, nature of the wounds, and location of the body of the horse indicate rather conclusively that some injury had been sustained before the animals reached the track or right-of-way. It is very doubtful that plaintiff established that the killing was caused by the running of the train.
Conceding for discussion only that the animals were struck by the train, the evidence is without contradiction that there was no negligence on the part of the defendant. The engineers and firemen of the only three trains passing the point during the limits of the period sought to be covered by the plaintiff, each testified that they did not see the animals and did not strike them. The case is governed by Taylor v. Illinois Cent. R. Co., 200 Miss. 571, 27 So.2d 894, in which case this Court assumed that the deceased was killed by the train. In addition to the authorities cited therein, see also Columbus G.R. Co. v. Nye, 139 Miss. 295, 104 So. 90 (reversed on other grounds.)
The testimony of the plaintiff's nephew, undermined no little by inherent improbability and impeachment, asserting that the whistle of the only southbound train then operating, indicated a warning to stock upon the track, could not import knowledge by the train crew of the animals' presence (as in Fore v. Illinois Cent. R. Co., 172 Miss. 451, 159 So. 557, 160 So. 903), since the uncontradicted proof is that there was no southbound train operating at the time.
The peremptory instruction requested by the defendant ought to have been given.
Reversed and judgment for appellant.