Beery v. Cumberland Telephone & Telegraph Co.

Whiteield, C. J., delivered the opinion of the court. The demurrer of the Home Telephone Company to the amended declaration should manifestly have been overruled. The averments of that declaration, when the difficulty of locating the responsible party is held in mind in this tangled web of [738] facts, and especially when the death is due to the mysterious and still largely unknown .force of electricity, sufficiently stated a cause of action, so far as the declaration is concerned. The learned counsel for the appellants concede in their brief that they have made no case against the Cumberland Telephone & Telegraph Company. As to the two remaining defendants, the city of Hattiesburg and the Traction Company, we think the evidence was sufficient to take the case to the jury, looking at the whole evidence and giving the evidence its proper weight, especially the testimony of the witness Foster. It was peculiarly a case, under all the circumstances, for solution by the jury. It is perhaps fair to say that on this record a stronger case is made against the city of Hattiesburg than against the Traction Company; but whether one or the other is liable, or whether either is liable, should be left to the jury to say on the testimony. The action of the court below was correct on this record with regard to that ground of the motion for a new trial setting Tip the newly discovered evidence of the witness Coll. Due diligence was not shown in ascertaining this testimony. Since there must be a new trial, we forbear any further comment. The result is that the judgment of the court below, so far as the Cumberland Telephone & Telegraph Company is concerned, is' affirmed, the judgment of the court below in sustaining the demurrer of the Home Telephone Company to the amended declaration is reversed, and the action of the court in giving the peremptory charge to find for the defendants is also reversed, and the cause remanded for a new trial as' indicated. Reversed.