Greenwald v. Yazoo & Mississippi Valley Railroad

Cook, P. J., delivered the opinion of the court. Appellant sued the appellee for the value of a pointer dog killed by one of the locomotives of appelleenear the depot at Pattison, in Claiborne county. The-facts as disclosed by the record, are that the dog got. on the ■ track from one hundred to one hundred fifty yards in front of the approaching locomotive, and then ran slowly down the track until it was overtaken by the locomotive and killed. It is evident that the engineer did not see the dog at all, and that he has no-recollection as to what he was doing at the time; he,, manifestly, was testifying about his custom, and had no independent recollection of this occasion. Some-effort was made to have the engineer testify that he-did not see the dog because he had his eyes on the-semaphore, but this was without results. All of the pertinent evidence fixed the value of the dog at from two hundred dollars to two hundred and fifty dollars — that is to say, the witnesses who knew the qualities and breeding of the dog testified that way.. The evidence shows that there was no market for dogs, of this kind in Pattison, and the court by instructions limited the finding to the market value of dogs in Pattison, and excluded evidence offered of the value of’ dogs of this kind in adjoining states. It being that Pattison was not a dog market, and that pointer dogs, had no market there, the jury followed the instructions, of the court by fixing the value of the dog at the nominal sum of $5. There are, perhaps, towns even in this-state wherein there is no market for cotton, and in a suit involving the value of a bale of cotton, would the-court be justified in instructing the jury that in determining the value of a bale of cotton the jury were confined to the market value in a town where there was no market for cotton? We think the court may judicially know that blue-blooded hunting dogs have a market, and in this case602 the court should have instructed the jury to fix the value of the dog in question at such sum as the evidence shows that a man who wanted to buy a dog like this one would be willing to pay for same; and to aid the jury in arriving at the value of the dog in this case, the court should have permitted the jury to consider the testimony as to the value of such dogs in other places, yherein the owner might find a purchaser. Reversed and remanded.