| Miss. | Oct 15, 1907
delivered the opinion of the court.
The first writ of certiorari in this case was based on the ground that a judgment by default had been taken in the justice’s court before five days from service of process had elapsed before the trial. It was perfectly competent to amend the petition in the circuit court by adding the ground for the issuance of the writ that the judgment in the justice’s court had been taken for a sum in gross for the killing of the cattle, without taking testimony to show value. Evans v. Railway Co., 74 Miss., 230" court="Miss." date_filed="1896-10-15" href="https://app.midpage.ai/document/evans-v-southern-railway-co-7987926?utm_source=webapp" opinion_id="7987926">74 Miss., 230, 21 South., 15; Miss. Central R. R. Co. v. Fort, 44 Miss., 423" court="Miss." date_filed="1870-10-15" href="https://app.midpage.ai/document/mississippi-central-r-r-v-fort-7983971?utm_source=webapp" opinion_id="7983971">44 Miss., 423. Tinder the statute amendments are liberally awarded in the circuit court on appeals from justices’ courts, and in the particular instance it is not possible that any harm could have resulted.
On this record nothing can be predicated of the insecure wire fence of the railroad company on the right of way, through which fence the cattle got that were killed, because no law requires such fepce. We look in vain in the record for any proof showing, with any sort of satisfaction, that the killing was done in any incorporated town. The facts are that Beasley had bought about seventy head of cattle, which he put in a pasture belonging to one Ellis on the side of the railroad track. On the side of the railroad company’s right of way there was no inclosure to the pasture other than that of the railroad company’s right of way wire fence. During the night, it seems, some of the cattle got through this wire fence and went upon the railroad track, where some of them were lying down and some standing up. At that point there was a curve and a downgrade. A freight train, running at a lawful rate, came upon the curve, on which curve, of course, the headlight was shed straight ahead. This action is to recover damages for killing some of that stock, on the idea that the killing by the locomotive made a prima facie case of negligence on the part of the railroad company. Granting this, it is none the less true that the railway company may exonerate itself by showing that there was
Affirmed.