Mississippi Central Railroad v. Walden

Cook, J.,

delivered the opinion of the court. ..

Appellee recovered judgment against appellant for the sum of seventy-five dollars the value of a cow killed by appellant’s locomotive. Liability is confessed; but complaint is made at the value of the cow, fixed by the jury. It is claimed that this error was brought about by the action of the court in misdirecting the jury as to the law. The court, in effect, instructed the jury that they were limited to one of two values, thirty dollars or seventy-five dollars. It is further insisted that there was evidence warranting the jury to fix the value of the cow at twenty-five dollars.

In our opinion, the evidence fully justified the verdict of the jury; in fact, there was no other verdict the jury could have rendered. "Qnly one witness, qualified to testify, fixed the value of the cbw,,he being the only witness who knew the cow before she was killed, and he fixed, her value at seventy-five dollars. The other witnesses whom -the court permitted to testify bad never seen tbe cow before sbe was killed, and not until after sbe bad been mutilated; consequently they knew nothing about tbe qualities of tbe animal.

Members of the jury, sworn as witnesses for defendant, were not permitted to testify, and tbe rejection of their testimony is assigned as error. They were asked: “What would be tbe value of a cow two and one-half .years old, light red in color, and .giving milk?” This question afforded no data upon which tbe witnesses could have based an intelligent opinion as to value, and tbe court was right in sustaining an objection to this testimony.

If there was error at all, it consisted in tbe court im structing tbe jury that they could find either thirty dollars or'seventy-five dollars. In our opinion, tbe court ought to have peremptorily instructed tbe jury to find for tbe plaintiff, and assess the damages at seventy-five dollars. Affirmed.