Yazoo & Mississippi Valley Railroad v. Pope

61 So. 450 | Miss. | 1913

Reed, J.,

delivered the opinion of the court.

This is a suit for the recovery of the value of one mule, missing from a shipment of mules and horses from East St. Louis, Ill., to Lexington, Miss. Appellee showed that the shipment of the animals was delivered to appellant, the Illinois Central Railroad Company, in good condition, and rested his case solely on the proof of the failure to deliver the mule at Lexington.

The railroad company showed that the animals were shipped in a stock car of the best class, and that the car was carefully handled; that the train was properly equipped and handled, and in charge of experienced men; that there was no accident during the transportation, and no unnecessary jarring or jolting of the ear. After the train reached Mounds, 111., it was discovered that the mule sued for was dead in the car. A careful examination failed to show any marks or cuts upon the animal or any other thing to indicate the cause of its death. In fact, the cause of the mule’s death is not'shown in any of the testimony. All of the other animals in the car reached Lexington in good condition. The court refused to grant appellants a peremptory instruction.

It was decided in the case of Railway Co. v. Teams, 75 Miss. 147, 21 South. 706, that where mules are injured while being carried by a railroad company a recovery therefor cannot be had, if it appear that the train met with no accident, was properly handled, and the ear suitably and properly equipped, and that when these facts are shown a peremptory instruction for the carrier should be given. It will be seen that the railroad company in this case proved all necessary facts to bring this case within the rule announced in the Teams case. Therefore the peremptory instruction asked by appellants should have been given.

We deem it our duty in this case to render the judgment here which should have been rendered in the court below. Section 4919 of the Code of 1906' provides: “In case the judgment, sentence or decree of the court below be reversed, the suprme court shall render such judgment, sentence, or decree as the court below should have rendered, unless it be necessary, in consequence of its decision, that some matter of fact be ascertained, or damages be assessed by a jury, or where the matter to be determined is uncertain.” In the case of Hairston v. Montgomery, 59 South. 793, upon rendering the judgment in this court which should have been rendered in the court below, and in referring to the statute authorizing the same, Smith, C. J., said: “Had the peremptory instruction requested by appellants been granted, it would not have been necessary for the court to have gone through the useless formality of having the jury to retire and actually find the verdict directed; but the court should simply have rendered judgment as if upon verdict found. ’ ’

The judgment of the court is therefore reversed and .judgment is rendered here for appellants, the defendants in the court below.