59 Miss. 280 | Miss. | 1881
delivered the opinion of the court.
The plaintiff brings suit against the railroad company upon a demand for damages for killing a horse, which demand has •been assigned to him, since the killing, by the then owner of the animal killed. The ancient doctrine was that a demand arising out of a tort was not assignable, but the modern cases restrict the principle to torts against the person, or to such as did not survive to the personal representative after death, such, for instance, as slander, assault and battery, seduction, and the like. Torts to property, on the other hand, whereby the estate of a party is destroyed or diminished, are now held assignable either by the act of the party, or by general assignments by operation of law, and the doctrine is recognized both
Section 1059 of the Code of 1880 provides that where satisfactory proof has been made of injury to person or property by the running of the locomotives of a railroad company, it .shall be prima facie evidence of negligence on the part of a railroad company. This, of course, throws on the company when sued, and when such evidence has been adduced, the burden of rebutting this presumption and of establishing by evidence that there has been no negligence on the part of its employees. In the present case the defendant by its engineer and firemen showed the actual facts attending the killing, which it was admitted had been done by the defendant’s locomotive, and rebutted, as we think, the presumption of negligence, by affirmatively showing the exercise of all necessary care and caution on its part. The accident, according to the testimony of these witnesses, was unavoidable. The jury, notwithstanding, found a verdict for the plaintiff. There was nothing improbable in the story told by the witnesses for the defendant, nor was there anything at all inconsistent with it in any fact proved in the case on either side. There is nothing in the record to suggest that the witnesses were unworthy of credit, or that the jury in fact disbelieved them. The plaintiff sufficiently established the killing of the animal by the locomotive of the defendant corporation. Though no witness was brought forward who saw the killing, the position of the carcass when found and all the surroundings plainly indicated that the horse had been killed by the train of the company. Having made this proof, the plaintiff rested, without making any proof whatever other than that relating'to the finding of the body and the marks of the animal upon the track of the railroad.
It seems to be, so far as we can see, a case where each side has met the burden imposed by law upon it, and in which there is no conflict in the testimony of the witnesses. Where