58 So. 595 | Miss. | 1912
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 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.
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.
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.