Canton, Aberdeen & Nashville Railroad v. McCoy , 1 Miss. Dec. 47 ( 1885 )

Opinion.

Arnold, J.,

delivered the opinion of the court:

Appellees sued appellant to recover the value of a horse alleged to have been killed by one of its trains. There was testimony to show that the horse was killed by the train, at or near the corporation line of the town of Kosciusko, and there was no explanation of the manner of the killing. There was some testimony in regard to a train or engine of appellant being run through or about the corporate limits of the town on the night the horse was killed, at a greater rate of speed than six miles an hour, and the court instructed the jury among other things, to the effect that if appellant’s train killed the horse at or near the corporate line of the town ■of Kosciusko, and the train was running at a greater rate of speed than six miles an hour, when it reached the corporation line, and that the horse would not have been killed but for the recklessness and negligence of the employees of appellant, they should find for appellee.

• The giving of this instruction is the principal error complained of. Our conclusion is, that as the testimony was sufficient to warrant the conclusion that the horse was killed by the train, and as there was no explanation of the manner of the killing, the presumption of negligence on the part of the employees of appellant prevailed, and it was immaterial at what rate of speed the train was running, and where the horse was killed.

Affirmed.