Searles v. Alabama & Vicksburg Railway Co.

69 Miss. 186

Opinion

Woods, J.,

delivered the opinion of the court.

On all the evidence submitted in the trial court, it cannot be safely affirmed that there was no disputed question of fact for a jury. The inquiry as to the railway company’s alleged negligence in shipping the grain in unsafe and unsuitable cars was met by the evidence of the car-inspector of appellee as to his universal habit, and the rules of the company touching the examination and sending out of all cars. This evidence, we agree with the court below, raised a presumption of the sufficiency of the cars used in making this particular shipment, and if no other evidence were to be found in the record the peremptory instruction might be maintained. But the presumption of .the sufficiency of the cars employed was met by another presumption, arising out of the evidence, showing the condition of the cars and their loads upon reaching the point of destination. The three cars, so far as the record shows, were then in the condition in which they were when started from Vicksburg, each one sealed and untouched and undisturbed, and the entire load of each was seriously damaged by water. In the absence of any countervailing evidence, the reasonable presumption must be indulged that the damage was occasioned by rain-fall penetrating and striking through inadequate and unsuitable cars. And so, on all the evidence, the question of fact as to the railway’s negligence in furnishing insufficient and insecure cars originally, was one for the jury’s determination.

The presumption created by the car-inspector’s evidence in favor of the sufficiency of the cars was a reasonable,- but not a conclusive, one. The presumption of insufficiency, growing out of damage to the grain, on the facts proven was reasonable also, but not conclusive, and the jury should have been permitted to pass upon the question of fact raised by this conflicting evidence.

Reversed and remanded for a new trial.