N. O. & N. E. R. v. Jones

Opinion. Per Curiam. The verdict was manifestly wrong. The testimony does not show that the horse was struck and injured by any locomotive or train of appellant, or that he was, or had been, in a position in which he could have been so struck or injured. Shortly after the horse was injured, examination was made, under favorable conditions, to ascertain if there were any tracks of the horse on or about the railroad bed, or signs of his having been struck or thrown from the railroad track, and the witnesses all concur in the statement that no such tracks or signs could be found. If, as some of the witnesses testified, there were signs of the horse having been on the sawdust pile thirty or thirty-five feet from the track, this alone did not warrant the verdict. The judgment is reversed, and a new trial awarded. Footnotes [1] The burden of proof in such cases is on the plaintiff to show negligence. Miss. Cent. R. Co. v. Miller, 40 Miss. 45; N. O., J. & G. N. R. Co. v. Enochs, 42 Miss. 603; Memphis & C. R. Co. v. Blakeney, 43 Miss. 218; Raiford v. Miss. Cent. R. Co., 43 Miss. 233; Memphis & Charleston R. Co. v. Orr, 43 Miss. 279. In the absence of eye-witnesses, marks of an animal on the track and the position of its remains may make satisfactory proof that it was killed by the running of the train, which, under the statute, is prima facie evidence of negligence on the part of the company. Railroad Co. v. Packwood, 59 Miss. 280. Section 1059, Code of 1880, and section 1808, Code of 1892, making proof of injury inflicted by the running of locomotives or cars prima facie evidence of negligence on the part of the company, do not help the case if the plaintiff’s own evidence shows that the defendant was not guilty of negligence. Mobile R. Co. v. Holt, 62 Miss. 170. Section 1059, Code of 1880, has no application to a case where a horse, being off the track, left a safe path through- fright and falls or jumps into [207] a ditch. The injury is not inflicted by the running of the cars. Lowe v. A. & V. R. Co., 81 Miss. 9, 32 So. 907. A peremptory instruction is proper only where all the facts in evidence taken as true, with every just inference from them, fail to maintain the issue. Whitney v. Cook, 53 Miss. 551; Railroad Co. v. Boehms, 70 Miss. 11, 12 So. 23. And if there is any conflict in the evidence, the view Avhich is most favorable to the party against whom the instruction is asked must be taken as true. Carson v. Leathers, 57 Miss. 650. Where there is a material conflict in the evidence, a peremptory instruction should not be given. Richardson v. Tolliver, 71 Miss. 966, 16 So. 213; Thrasher v. Gillespie, 52 Miss. 840; Cantrell v. Railroad Co., 69 Miss. 435, 10 So. 580; Timberlake v. Compress Co., 72 Miss. 323; 16 So. 530. Peremptory instruction to find a certain way is improper unless the court, on the evidence, would set aside a contrary verdict. Bernheim v. Dibrell, 66 Miss. 199, 5 So. 693; Holmes v. Simon, 71 Miss. 246, 15 So. 70; Railroad Co. v. Doyle, 60 Miss. 977.