Hamlin v. Yazoo & Mississippi Valley Railroad , 72 Miss. 39 ( 1894 )

Cooper, C. J.,

delivered the opinion of the court.

This is a suit brought by appellant against the appellee to recover the value of two mules killed by a train of the appellee. The circumstances of the killing were fully testified to by eye witnesses for the plaintiff and by the servants of the company in charge of the train and other eye witnesses for the defendant. Of this evidence it is sufficient to say that, according to the testimony for the plaintiff, the injury was negligently inflicted, lint, according to that for the defendant, it was unavoidable. By the first instruction for the plaintiff, the court told the jury that proof of the killing was prima facie evidence of negligence on the part of the defendant, and to find for the plaintiff, ‘ ‘ unless it appears, by a clear preponderance of the evidence, that the killing of one or both of said mules was unavoidable by the exercise of necessary care and prudence. ’ ’

By the third instruction for the defendant, the jury was told that the fact being proved that the engine of the defendant struck and killed the mules, it was prima fade evidence under the statute of negligence, and, with no other evidence before it, the jury should find for the plaintiff; “but, in the case before the jury, the circumstances attending the injury are shown in evidence, and it will determine the case on the testimony, and not upon any presumption of negligence. ’ ’

It is contended by counsel for appellant that the instruction for the .defendant withdrew from the plaintiff the benefit of the presumption of the defendant’s negligence, created by statute, from the fact of the proved killing. of the mules, and it is insisted that this presumption, as a fact, should be considered by the jury throughout its deliberations.

We think the law was correctly given to the jury. It was told that the fact of the killing of the mules entitled the plaintiff to a recovery, unless, by a clear preponderance of the evidence, negligence was disproved, but, as all the circumstances of the killing were in evidence, the jury should determine the question from the facts, and not from presumption. The whole effect of the statute is to devolve upon the defendant the burden of proof of due care; it is not required to carry this burden, with the presumption of negligence again added as a rider. The precise question is decided in Railroad Co. v. Phillips, 64 Miss., 693.

Affirmed.