
    John W. Wooten v. Mobile & Ohio Railroad Company.
    1. Evidence. Private records.
    
    Private records are not admissible in evidence in the absence of all showing that they were fairly and honestly kept and the entries therein made contemporaneously, or nearly so, with the matters of fact which they purport to record.
    2. Trials. Peremptory instruction, when proper.
    
    Where the court would set aside a verdict for a- party because of the insufficiency of the evidence, a peremptory instruction for the adverse party is proper.
    From the circuit court of Noxubee county.
    IIon. Robert F. Cochran, Judge.
    Wooten, the appellant, was plaintiff in the court below; the railroad company, the appellee, was defendant there. From a judgment in defendant’s favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court.
    The suit, begun in the court of a justice of the peace,, was for damages alleged to have resulted from unnecessary delay in the transportation of cattle, the mistreatment of the animals, and overcharges for grain fed to them while in transit.
    The case having been appealed to the circuit court, on the trial there it was shown that the appellee company accepted from the appellant, at Brooksville, Mississippi, on its line of railway, a carload of cattle for shipment, via Meridian, Mississippi, to New Orleans, Louisiana. The appellee, as initial carrier, in compliance with the contract of shipment, delivered the car of cattle, at Meridian, to.a connecting carrier, the New Orleans & Northeastern Railroad Company, which transported the cattle from Meridian to New Orleans, and delivered them to the New Orleans Belt Line Railroad Company, and the Belt Line Company carried them to destination, the city stock yards.
    
      Appellant testified that he loaded the cattle at Brooksville at eleven o’clock p. m. on October 14, tying them securely in the car for safety in transportation, but did not see them from tbe time they were placed in tbe car at Brooksville until eight o’clock a.m. on October 16th, when in tbe possession of tbe Belt Line Railroad Company at the stock yards in New Orleans; be then discovered that some of tbe cattle bad been injured since be saw them at Brooksville, and they died shortly afterwards. Appellant further testified, from bis experience with former shipments over tbe same route, that tbe car' should have reached New Orleans in thirty hours after leaving Brooksville; but tbe one in question was delayed a few hours beyond that time and because thereof be bad been forced to pay unnecessary stock feed bills which, however, were presented, not by appellee, but by tbe New Orleans & Northeastern Railroad Company, and were voluntarily paid by plaintiff.
    Tbe appellee showed that there was no delay in tbe transportation of tbe cattle from Brooksville to Meridian or in their delivery to tbe connecting carrier. Over tbe objection of appellant, appellee was allowed to introduce in evidence tbe interchange records kept by it in its Meridian office which showed that tbe car was, upon its arrival at Meridian, promptly placed on appellee’s interchange track and billing therefor delivered to tbe connecting carrier. Appellee’s chief clerk at its Meridian office, as a witness over objections of appellant, testified that if anything wrong existed at the time tbe car was interchanged tbe appellee’s records would have shown it; that tbe entries on tbe record in regard to tbe car were made at tbe time of tbe transaction by another, appellee’s interchange clerk, who was not at tbe time of tbe trial in tbe service of appellee, but was absent from tbe state; and that witness knew nothing about tbe car save what be learned from tbe records; and tbe records bad always been accepted by both carriers as correct. Appellee, over objection of appellant, also introduced as a witness in its behalf tbe yardmaster of tbe New Orleans & Northeastern Railroad Company, wbo, from the interchange records of his company, testified that the cattle were received on schedule time and in good condition from appellee at Meridian and promptly shipped to New Orleans. This witness did not keep the books, and had no personal knowledge of the facts disclosed by their entries; nevertheless, the entries were read to the jury.
    
      J. E. Rives, for appellant.
    It was error for the trial court to allow the appellee to introduce in evidence its interchange records showing its interchange of cars with the New Orleans & Northeastern Railroad Company at Meridian. And it was error to allow the head clerk of appellee’s Meridian office to testify about the contents of the records. He did not make the entries thereon nor see them made. His only testimony to establish their accuracy was to say that he had never heard their correctness disputed by either appellee or the connecting carrier.
    This court has never allowed a witness to testify to the. contents of his own books if they are in existence. The books must speak for themselves; and even then not until after proof that they were correctly kept and the entries made in usual course of business at the time the recorded facts transpired. Boolcout v. Shannon, 59 Miss., 318; Chicago, etc., Railroad Company v„ Provine, 61 Miss., 288. Tet, in this case, the lower court permitted a clerk of appellee, upon the introduction of records kept by another clerk, to testify therefrom about things of which the witness was in total ignorance.
    Even if, by some reasoning or authority unknown to us, it be held that the records were admissible because kejit by the appellee, certainly they should not have been admitted in evidence until their authenticity was supported by the testimony of the absent interchange clerk, who had made the entries and who kept the books. Briggs v. Rafferty, II Gray (Mass.), 525. It will be noted that appellee never attempted to account for the absence of this interchange clerk.
    
      The trial court further erred in allowing the appellee to introduce in evidence through its witness, the yardmaster of the New Orleans & Northeastern Railroad Company, the interchange records of that company. These were independent records of transactions with appellee, made in the absence of appellant. The witness was unable, of his personal knowledge, to say what was the actual condition of the cattle at any time while in Meridian; nor could he say of his knowledge whether the records were correctly kept, for he had nothing to do with their keeping.
    The trial court should not have granted the peremptory instruction in appellee’s favor. The records alone controverted plaintiff’s testimony. It was not for the court to pass upon the sufficiency of the records, even if held competent as evidence. This court has decided that while the competency of books of account is for the court, their weight as evidence is for the jury Boohout v. Shannon, supra.
    
    Even if appellee were not liable for damages for the injuries to the cattle, the granting of the peremptory instruction was error, because it was not denied by appellee that appellant paid the extra feed bill incurred at Meridian, and caused by appellee’s failure to have the cattle promptly transferred to the connecting-carrier in time for prompt transportation to New Orleans. The feed bill in evidence shows that the cattle were not turned over to the connecting carrier promptly, for it shows on its face that they remained in Meridian long enough to be fed, when appellee should have delivered them at once to the connecting carrier. The court had no right to give peremptory charge upon this, item in appellant’s claim against appellee.
    
      J. M. Boone, for appellee.
    Upon the appellant’s own slmwing,. the appellee was entitled to the peremptory instruction. Plaintiff testified that the cattle were found in damaged condition while in the hands of the Belt Line Railroad Company in Newr Orleans, being the third carrier which, handled the car of cattle since appellant last saw his animals at Brooksville. The presumption is that they were damaged by the delivering carrier. Railroad Company v. Jones, 100 Ala., 263; Mobile & Ohio Railroad Company v. Tupelo Furniture Company, 67 Miss., 35 (s.o., 7 South. Rep., 279).
    Had appellant sued the delivering carrier, he would have been entitled to the presumption that the New Orleans & Northeastern Railroad Company damaged the property. But as he sued the initial carrier, he assumed the burden of proving that the damage was the result of the initial carrier’s negligence, and is not aided by any presumption of law in this respect.
    As the evidence is silent as to where the damage actually occurred, the appellee was entitled to the peremptory instruction. Even if the trial court erred in admitting the records of the two railroads as to the transactions at Meridian, the rights of appellant were not prejudiced thereby. If appellant had made out a prima facie case, the rest of appellee’s evidence was sufficient to bar his right to a recovery. But appellant had not made out a prima facie case, because there was no evidence to show that the cattle were damaged while in the possession of appellee. Plaintiff never saw the cattle from the time he left them at Brooksville until they were in the possession of the Belt Line Company in New Orleans, and he could not tell how or when they were damaged.
    As regards the question of delay, the cattle left Brooksville about eleven o’clock p.m., October 14th, and reached New Orleans some time during the night of October 15 or the morning of October 16 before eight o’clock. Plaintiff says the usual time for transportation is about thirty hours. It is evident, since the cattle had reached New Orleans, been unloaded, watered and fed, reloaded on the car and transported by the Belt Line Company to the stock yards all before eight o’clock a . m. of October 16th, that the limit of thirty hours had been but slightly exceeded, and that there was no delay in the transportation or'handling of the shipment. If there was no delay, no claim can be made by appellant for repayment of tbe feed bills paid by him.
    Tbe only other question in tbe case is whether tbe court erred in allowing tbe witnesses for appellee to testify in regard to tbe entries made on the records of tbe two carriers at Meridian. While this question is immaterial in view of tbe correct ruling of tbe court in granting tbe peremptory charge against appellant because of insufficiency of evidence, yet it was not reversible error to admit in evidence tbe entries. It is held in Boohout v. Shannon, 59 Miss., 384, tbe case cited by appellant, that when tbe party in interest introduces evidence as to tbe authenticity and correctness of tbe books of account, sought to be introduced, satisfactory to tbe presiding judge, and tbe books are unobjectionable and apparently fair, they may be admitted as evidence of tbe account. And tbe language of tbe court in Chicago, etc., Railroad Co. v. Provine, 61 Miss., at p. 292 of tbe opinion, also cited by appellant, states practically tbe same language.
    As regards appellant’s contention that tbe stock feed bill ought to have carried tbe case to tbe jury, we say tbe feed bill was presented to appellant, not by appellee, but by tbe connecting carrier, tbe New Orleans & Northeastern Railroad Company; and appellee bad nothing to do with it. WThile tbe feed bill is for cattle feed at Meridian, and is signed by tbe agent of tbe connecting carrier, whose yardmaster testified that tbe cattle were neither fed nor unloaded at Meridian. If errors were made by tbe New Orleans & Northeastern Railroad Company in presenting appellant with tbe feed bill and collecting payment thereof, appellee was not responsible for it.
   Whitfield, C. J.,

delivered tbe opinion of tbe court.

Tbe action of tbe court in admitting tbe interchange of records, tbe private records kept by a private corporation, was manifestly erroneous. Chicago R. R. Co. v. Provine, 61 Miss., 288. But, with this evidence excluded, there remains nothing to support a verdict for plaintiff. It would have been tbe duty of tbe court, if it had submitted this case to a jury on the evidence offered by the plaintiff, and the jury had rendered a verdict for the plaintiff, to have set that verdict aside, and this is the best test as to whether a peremptory instruction could have been given for the defendant.

Affirmed.  