The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1869-06-03
The Responsibility of Railroad
Corporations for StOclG-EAiIIins by
the Cars.


I.V. Enochs.
This is an action of trespass against the
plaintiff in error, instituted in the 1st Dis
trict Court OF Kinds county, by defendant
in error.
1t is alleged in the declaration that the
defendant in error, was the owner ola Jack
ASS" and that the plaintiff in error
Through their agents and employees, whose
names are unknown to plaintiff, and while
said agents aer. employees were engaged in
runnfI The -Is-Sf said company on the
Rail R1s 'Ae Atk of the company, and en-
gagesh inon8e business and employment of
said defendant, did, on the 10th day of June
1861, hegligently, and carelessly, and with
out necessity, run the engine of the said
company and cas- against and upon said
Jack Ass, and did then and there kill and
destroy the same, whereby and on account
of the said trespass, the plaintiff has been
damaged in the sum of one thousand dol
lars"
filed the plea of not guilty, and upon this
issue there was jury and verdict for the
defendant in error, for the sum of five hun
dred dollars, and judgment thereupon.
A motion was made for new trial, which
was overruled by the court, and the case is
brought here to reverse this judgment.
The bill of exceptions em6odies the mo-
ton for a new trial, and all the evidence in
the case.
There are four assignments of error. We
shall only consider the first, the disposition
of which will determine the case: 1t is that
the court erred in refusing to grant plaintiff
in error, a new trial.
The substance of the evidence having any
relevancy to the merits of the case, is sub
stantially, that the defendant in error. was
the owner OF Jack Ass, aged about Is or
70 months-that he was found dead on the
side of the track of the Rail Road of
plaintiffs in error, about two miles from Terry
Depot-that the Jack with Jenet, was living
about seventy yards from the place where
apparently the cOw-catcher of the engine
had caught him-that there were marks on
the road where the engine appeared to have
caught hun; he appeared to have been dead
about day before he was found.
None of the witnesses, as is shown by the
testimony, saw the animal killed, or did
they know who killed or what killed him.
Where the dead body was found was one
and three quarters of mile from the resi-
dence of defendant in error, at whose place
the Jack was kept-that where the body was
found the road was straight, and person
could see mile either way.
There were two instructions given to the
jury without objection from either side.
The one for the defendant in error, is en-
braced in the instruction for the plaintiff in
error, which is as follows:
I'm order to enable the plaihtiff to recover
on the pleadings in this case, the plaintiff
must prove all the essential averments OF
the declaration, tO-wit: That the defendants
were running their cars on their road at the
time and place charged, and that the defend
ants by the negligence and carelessness OF
the road, killed the plaintiffs Jack Ass, and
in the absence of such proof, the jury will
find for the defendants
The only question is, whether the court
should have granted the new trial asked by
plaintiff in error. We think the Court
should have done so.
The testimony as to the killing of the
Jack was entirely circumstantial. No per-
son saw the killing if any was done. There
was no evidence before the jury that the
engine of the plaintiff in error, caused the
death of the Jack. The only proof on that
point was that the Jack was found dead on
the side of the track of the road some
seventy yards from the spot on the road
where it appeared" that the cow-catcher
struck him. No proof was offered of any
negligence or misconduct, or of any want
of reasonable care on the part of the officers
or employees of the road and in charge OF
any particular train running at that time,
whether it was done in the night or the day.
The jury, it seems, drew an inference from
the appearance of the dead body OF the ami
NAL. aud the marks on the track of the road.
that the death of the Jack was caused by
the carelessness and negligence of the en-
ployees of said company, and upon that
presumption, found their verdict for the de-
PENDANT in error. We consider the testimony
wholly insufficient 70 support the verdict
1t should have been demurred to by the
plaintiff in error, at the trial. The verdict
is contrary to the instruction of the court
given for the plaintiff in error, which an
nounced the law correctly. Mississippi
Central Rail Road Company VS.. Miller, 40
Mss, p. 40.
The question at issue was whether the
death of the Jack was the result of careless
ness or negligence on the part of the
plaintiff In error, and this had to be estab-
lished in the language Of the instruction.
before the jury could find verdict for the
defendant in error. The proof neg 4tiyed
any such facts. The verdict was manifestly
wrong. and contrary to tf e law and the evi-
dence, and the court should have set IL aside
for the first ground assigned in the motion
for a new trial.
Let the judgment be reversed. the verdict
set aside, and new trial awarded.
SHACkELFORD.