Johnson v. Alabama & Vicksburg Railway Co. , 69 Miss. 191 ( 1891 )

Woods, J.,

delivered the opinion of the court.

The second instruction given for the appellee was erroneous, in that it withdrew from the jury’s consideration any right to a recovery that the plaintiffs may have had under their contract of shipment, and under the evidence as to the condition of the cattle at Brandon, and their request to be laid out there for unloading. While it is undisputed that the conductor declined to lay out the car-load of stock at Brandon because the stock-pen at that station would not hold the hogs safely, yet this afforded no adequate excuse for the denial with which plaintiff’s request was met. From any thing that appears to the contrary, the conductor might have complied with the request, and have avoided all loss and damage to the shippers. The cattle might have been'unloaded into the pen at Brandon, .(and they were the suffering animals) and the hogs might have been retained in the ear. At any rate, the mere fact that the cattle-pen was not capable of holding hogs securely was not conclusive of the other fact that the condition of the pen at Brandon was such-as to justify the conductor’s refusal to lay out the car at plaintiffs’ request; nor was it conclusive of the assumption necessarily involved, to the effect that the railway company was under no duty of having a pen safe for hogs, as well as for cattle. These questions, which were important, were excluded from the jury by this instruction.

The third instruction given for the appellee is not sound. This instruction put upon the plaintiffs the burden of proving that the fraud or gross negligence of the carrier was the cause of the loss and damage. The instruction permits the railway company to avail itself of the provision in the special contract offered in evidence on the trial, exempting itself from liability for injuries resulting from its negligence. It will be observed that the instruction declares exemption from liability unless in cases occasioned by the gross negligence of the carrier. Whatever gross negligence may be, it was error to confine liability to eases arising out of that or fraud only. If the defendant was negligent at Brandon, or at Jackson, or elsewhere, in any particular, it was liable, if the loss was occasioned by such negligence.

The instruction was erroneous, furthermore, in putting the burden of proof upon the plaintiffs in every aspect of the case, even if the damage was caused by the fraud or negligence of the railway company. The true rule is that the burden is on the railway company claiming exemption from liability under a special contract, to prove that the loss or damage resulted from one or more of the excepted causes of the contract, and without fault of the railway’s servants. “ The carrier, in such case, must show at least prima fade that the injury did not result from neglect.” Chicago, etc., R. Co. v. Abels, 60 Miss., 1017. The instruction, as it appears to us, reverses this salutary rule, and puts the burden upon the plaintiffs of showing that, through fault of defendant— its gross negligence or fraud, as the instruction erroneously expresses it — the injury took place.

Beversed and remanded.