Mobile, Jackson & Kansas City Railroad v. Kea , 96 Miss. 195 ( 1909 )

Smith, J.,

delivered the opinion of the court.

From a judgment in the court below, awarding appellee damages for an injury to his mare, this appeal is taken. It will not be necessary to state the facts in this case; but it will be sufficient to say that this mare was not struck by the train, or injured by the running thereof, but became frightened thereat', and ran along the side of the track for some distance, then upon and down the track ahead of tbe train, and into ai trestle, thereby sustaining her injuries.

The court, at the request of appellee, charged the jury, under section 1985 of the Code of 1906, that proof of injury by the running of the locomotive or cars of the company was prima facie evidence of the want of reasonable skill and care on. the part of the servants of the company, etc. The court also refused the following instruction, requested by appellant: “The court instructs the jury that the burden of proof in this case is upon the plaintiff to establish liability upon defendant company by a preponderance of the evidence, and unless such liability has been so shown they will find a verdict for the defendant.”

The court was in error in both instances. Section 1985 of the Code has no application to this case, as the mare was not struck or injured by the running of the train. Lowe v. Alabama, etc., Ry. Co., 81 Miss. 9, 32 South. 907.

Judge Mayes concurs in the reversal, but is of the opinion that the facts show no liability on the part of the railroad company. Reversed and remanded.