Mississippi Central Railroad v. Miller, 40 Miss. 45

Mississippi Central Railroad v. Miller

40 Miss. 45 | Miss. | 1866

Ellett, J.,

delivered tlie opinion of the court.

Miller sued the railroad company in an action of trespass to recover the value of a mule alleged to have been killed by coming in collision with a train of cars. The pleading- on both sides is remarkably loose and untechnical, but no question was raised upon it in the court below. The declaration claims damages, “ which the plaintiff alleges he has sustained by reason of the killing of a certain mule belonging to the plaintiff, through the negligent misconduct of the agent or agents of the defendant in running their engine and cars over or against said mule, and thereby causing its death.” The first plea of the defendant says “ that it is true that the locomotive ran against the mule of plaintiff, but without negligent misconduct upon the part of the agent or agents; and that said collision could have been avoided by ordinary care upon the part of plaintiff.” The second plea “ denies each and every allegation of the plaintiff’s complaint.”

'Without pausing to remark on the unskilfulness of such pleadings, it is apparent that the gist of the action is the alleged negligent misconduct of the defendant’s agents, and this negligence or misconduct it was incumbent upon the plaintiff to establish by competent proof. It appears by the bill of excep-’ tions that the fact of the mule having been killed by coming in contact with the train was shown by circumstantial evidence only, no witness on the part of the plaintiff having bflfcfepresent at the occurrence. No proof was offered of any nflOTpice or misconduct, or of any want of reasonable care, on the part of the officers or agents in charge of the particular train; but, to make out this part of the case, the plaintiff’s counsel asked the witness, Adams, “ if he had frequently on other occasions seen the cars pass the public road near his house without whistling or ringing the bell.” The defendants’ counsel objected to this question, but the objection was overruled, and an exception reserved. The witness their proceeded to state that he had often known the cars of defendant to pass over the public road near his house without ringing their bell or blowing their whistle, and that they sometimes went down about dusk without head-lights. *48Kelly, another witness for plaintiff, was also permitted, after like objection, to testify that be bad known trains sometimes to run in tbe nigbt without head-lights, but did not know as to this particular train.

This evidence was inadmissible. Tbe question at issue was whether tbe death of tbe mule resulted from the want of reasonable and proper care at that particular time, and by tbe agents in charge of that train. Tbe affirmative of that proposition would not be established by showing that other agents of tbe defendant, at other times and places, bad been guilty of misconduct, or bad violated tbe law regulating tbe running of their trains.

Some of tbe instructions given to tbe jury, on behalf of tbe plaintiff, are complained of. It is only necessary to notice tbe fifth, which is to tbe effect that “persons having charge of engines and locomotives on railroads, are bound to manage them with the utmost care, and a failure to do so is negligence, in tbe law, for which tbe railroad company is responsible, if damage ensue to tbe property of another from such neglect so to manage their engines.” As applicable to tbe liability of railroad companies as common carriers, for injuries to persons or property carried upon their roads, this instruction was entirely within tbe rules of law. But in reference to tbe case before tbe commits language is too broad. Tbe true rule on tbe subject oJ^Auies to third persons, towards whom tbe railroad compiMBpis not incurred tbe liabilities of a common carrier, was laicfclown by tbe judge in tbe second instruction, given on behalf of tbe defendants, as follows: “ Tbe railroad company, in order to prevent injury and destruction to stock on their track, are only bound to use such reasonable care and prudence in running, as a prudent man,* engaged in tbe same business, ■would use to prevent such injury or destruction.” Such is substantially the language of tbe court in the Vicksburg and Jackson Railroad Company v. Patton, 31 Miss. 156. Tbe instruction given for tbe plaintiff is not reconcilable with that given for tbe defendant, and tbe jury were left without any certain rule to guide them.

*49Tbe jury having found for tbe plaintiff, tbe defendant moved for a new trial, on tbe ground tbat improper evidence was admitted; tbat tbe court erred in tbe instructions on bebalf of tbe plaintiff, and that tbe verdict of the jury was contrary to evidence. A new trial ought to have been granted on all these grounds. Tbe first two'have been already discussed. As to the third, even admitting tbe testimony of Adams and Kelly, there was no proof tbat tbe injury complained of was occasioned by any want of proper care and prudence on tbe part of tbe employees of the defendant. This is true, even if tbe jury wholly discredited tbe testimony of the engineer and conductor of tbe train, who were examined as witnesses for the defendant, and whose evidence, if believed, wholly negatived any such suggestion, and showed such a, degree of care, prudence, and skill as to exonerate tbe defendant from liability to damages on account of the accident, which is the subject of the suit.

Tbe judgment of tbe coijrt below will therefore be reversed, a new trial granted, and tbe cause remanded for further proceedings.

Judge Handy, being a stockholder in tbe railroad company, did not sit in this case.