Illinois Central Railroad v. Kerl

77 Miss. 736 | Miss. | 1900

Cai.hooN, J.,

delivered the opinion of the court.

Kerl and another, the appellees, had some cattle loaded on appellant’s cattle car in McComb City for shipment to New1 Orleans,, and.the company’s servants “kicked”1 that" car against another car standing on a switch track, and the collision caused the damage to -the cattle. ■ ’ ■■ •

There is no ground for the idea- that the animals were not properly loaded. It is true there was a bull and a stag in the car, but they were tied at one end of the car, and apart from the others. The jury properly found for the plaintiff on the facts.

The liability of the company was plain, as shippers, under the common law, but still the plaintiffs invoked code, § 3548, and got an .instruction from the court to the jury that: “If they believed from tho evidence that the injury to plaintiff’s cattle was caused by making a lacking switch’ by defendant’s servants in the city of McOomb, they will find for plaintiffs, although they may further believe that plaintiffs were negligent in loading the stock in the car.”

Counsel for appellee say this was error, because they say the statute was designed to ■ apply to persons or property on the track. We cannot subscribe to this. We cannot perceive the difference between injuries to persons or property out of a car and on the track, and injuries to persons or property in a car on the track.

We decline to engraft on the statute an exception in favor of the facts shown in this particular case. If the damage had occurred in the country the appellant would have been liable under the common law only. Since it occurred in town, the liability attached both under the common law and the'statute.

Affirmed.