Jordon v. Gulp & Ship Island Railroad , 102 Miss. 21 ( 1912 )

Whitfield, C.

It was clearly error to allow McSwain to testify that Jordan had not paid him for the oxen. The ownership of the oxen was plainly in Jordan; and whether he had paid McSwain, or not, was entirely immaterial to the issue.

The third instruction for the appellee was erroneous in telling the jury that the plaintiff could not recover for the death of any ox, unless they believe that ox died solely from the fault of the Illinois Central Railroad Company. The true rule on this subject is thus stated in Thompson on Negligence (2 Ed.), vol. 1, sec. 56, p. 60: “ The true course of reasoning is to consider whether the negligence of the defendant was the efficient cause of the injury; if so, the court will not speculate as to whether or not some other cause might also have produced it. On the other hand, the view that the injury must be solely caused by the defendant’s negligence, and that it is not enough that it should be essentially so caused, is a plain mistake.” And in the American & English Ency. of Law (2 Ed.), vol. 21, p. 495, it is said: “There is indeed no rule better settled in the present .action than that the defendant’s negligence, in order to render him liable, need not be the sole cause of plaintiff’s injury.” Under the evidence.in this case, had the jury believed that the appellee was negligent in not watering the oxen in Jackson during their stay there, of five hours, or at any point until they reached Durant, or that the appellee was negligent in not tying the oxen properly when reloaded at Durant, and had been satisfied that this negligence in these two respects contributed proximately to the death and injury of the oxen, but had yet believed that this was not the sole cause of the death or injury, but that this negligence, to produce the result shown by the testimony, had to be reinforced by the physical condition of the oxen when received, then, under this instruction, they were bound to find for the •defendant. The error is manifest.

The fourth instruction is also erroneous, in telling the .jury that they could not assess damages for the death •of any ox, after it was sold and delivered by the plaintiff. The sale of the ox did^not carry with it a sale of the plaintiff’s right of action for damages to the ox.

Instruction No. 8 is eroneous in its third paragraph, in which the jury are told that the plaintiff cannot recover, unless he .was the owner of the ox.

The tenth instruction for the appellee is erroneous in telling the jury that if they believed from the evidence that one or more of the oxen were injured, etc. The instruction' doubtless did not intend to convey the idea that if the jury believed only one or two of the oxen were injured, and the said injury was caused by the physical condition of the oxen when received by the railroad, they should find against the plaintiff for all the other oxen; hut that is what the language of the instruction means, and it is erroneous and misleading in that regard.

The twelfth Instruction for the appellee is erroneous in not making the transit cover the whole distance from Hattiesburg to McAdams, instead of from Jackson to McAdams.-

The fourteenth instruction for the appellee is also erroneous in stating that the burden of proof was on the plaintiff to satisfy the jury, by preponderance of the evidence, that the injuries sustained by the oxen were received between the time they were received for shipment at Jackson and the time that they were delivered at McAdams. The evidence showed without dispute, that both railroads receipted for the oxen as received in good condition, the Gulf & Ship Island Railroad Company from Hattiesburg, and the Illinois Central Railroad Company from Jackson on. It was therefore incumbent upon the defendant, with bills of lading acknowledging receipt of the oxen in good condition outstanding, to exculpate itself by showing that the injuries were not due to negligence on the part of the defendant. Chicago R. R. Co. v. Abels, 60 Miss. 1023; Railroad v. Tupelo Furniture Co., 67 Miss. 35, 7 South. 279, 19 Am. St. Rep. 262; Boehl v. Chicago, Mil. & St. Paul R. R. Co., 44 Minn. 191, 46 N. W. 333; Paramore v. Western R. R. Co., 53 Ga. 383; Western R. R. Co. v. Harwell, 97 Ala. 341, 11 South. 781.

In Gulf, C. & S. F. R. R. Co. v. Jones, 1 Ind. T. 354, 37 S. W. 208, the court said: ‘‘Proof is proof, whether by direct evidence or force of presumption. In other words,, the fact that the goods were delivered to the initial carrier in good condition, raising the presumption equivalent to positive proof, so long as it is not rebutted, that the goods were in like condition when received by the terminal carrier, coupled with the evidence of damage when the property was delivered to the owner, proves-the injury during the transit over the terminal carrier’s-line.” This is a correct announcement of the rule, and fits in perfectly here.

Per Curiam.

The above opinion is ' adopted as the opinion of the court; and, for the reasons therein indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.