Chicago, St. Louis & New Orleans Railroad v. Packwood

Chalmers, C. J., delivered the opinion of the court. The plaintiff brings suit against the railroad company upon a demand for damages for killing a horse, which demand has •been assigned to him, since the killing, by the then owner of the animal killed. The ancient doctrine was that a demand arising out of a tort was not assignable, but the modern cases restrict the principle to torts against the person, or to such as did not survive to the personal representative after death, such, for instance, as slander, assault and battery, seduction, and the like. Torts to property, on the other hand, whereby the estate of a party is destroyed or diminished, are now held assignable either by the act of the party, or by general assignments by operation of law, and the doctrine is recognized both [283] in England and America. The claim being assignable, and the transfer having been made in writing, the assignee had the right to bring the suit in his own name. Code of 1880, § 1507; Butler v. Railroad Co., 22 Barb. 110; Jordan v. Gillen, 44 N. H. 424; Whitaker v. Gavit, 18 Conn. 522; Pomeroy on Remedies, § 148 et seq. Section 1059 of the Code of 1880 provides that where satisfactory proof has been made of injury to person or property by the running of the locomotives of a railroad company, it .shall be prima facie evidence of negligence on the part of a railroad company. This, of course, throws on the company when sued, and when such evidence has been adduced, the burden of rebutting this presumption and of establishing by evidence that there has been no negligence on the part of its employees. In the present case the defendant by its engineer and firemen showed the actual facts attending the killing, which it was admitted had been done by the defendant’s locomotive, and rebutted, as we think, the presumption of negligence, by affirmatively showing the exercise of all necessary care and caution on its part. The accident, according to the testimony of these witnesses, was unavoidable. The jury, notwithstanding, found a verdict for the plaintiff. There was nothing improbable in the story told by the witnesses for the defendant, nor was there anything at all inconsistent with it in any fact proved in the case on either side. There is nothing in the record to suggest that the witnesses were unworthy of credit, or that the jury in fact disbelieved them. The plaintiff sufficiently established the killing of the animal by the locomotive of the defendant corporation. Though no witness was brought forward who saw the killing, the position of the carcass when found and all the surroundings plainly indicated that the horse had been killed by the train of the company. Having made this proof, the plaintiff rested, without making any proof whatever other than that relating'to the finding of the body and the marks of the animal upon the track of the railroad. It seems to be, so far as we can see, a case where each side has met the burden imposed by law upon it, and in which there is no conflict in the testimony of the witnesses. Where [284] this is so, the verdict should be for the defendant, and a contrary one will be set aside by the court. The exact question is met and decided in Young v. Wilson, 24 Miss. 694, in which a verdict for the plaintiff was set aside under similar circumstances. The court say that it is not a question of credibility of witnesses nor of conflict of testimony, but one in which the plaintiff having made out his case is met by proof on the other side, not in denial of his, but which, admitting the absolute truth of everything proved by him, goes further and nullifies its effect by proof of other facts which demonstrate that he has no right to recover. The plaintiff closes when he has made out his case. The defendant responds, not by denials or conflicting evidence, but by proving something additional which negatives his right to recover. This is equivalent to a confession and avoidance in pleading. If not met by further proof, and if there is nothing to suggest its falsity or the unworthiness of the witnesses, it must compel a verdict for the defendant. Reversed and remanded.