delivered the following dissenting opinion.
In this case the testimony would support a verdict for either party, and the court has not yet held that in such a case erroneous instructions, calculated to mislead the jury, would not cause a reversal. Indeed, in the case of Brister v. Railroad Company, 84 Miss. 33, 36 South. 142, the court expressly held that it would cause a reversal. If, on the facts of the case, it is manifest that no other verdict could or should be rendered than the one complained of, this court has held, in a line of decisions too numerous to be cited, that the cause would not be reversed for any mere error in the instructions, when it is manifest that the verdict is as it should be, and that tire errors in the instructions were not potent in procuring the verdict. But the sustaining of the verdict in those cases was based by the court entirely upon facts contained in the record, making it impossible for any other verdict to be reached, and upon facts so conclusive in their nature that, if a different verdict had been reached, the court would not have allowed it to stand. This, I think, has been the consistent and correct holding of this court. The case under discussion was' not a case where a peremptory instruction should have been given for the plaintiff. Indeed, after a protracted and most careful examination of this record, the facts and circumstances are far from making a case of clear liability on the part of the defendant company, but leave its liability in such doubt as could only be settled by the verdict of the jury. In this state of the proof the instruction complained of was given. I shall not quote the instruction, since it is set out in full in the main opinion. That opin'ion concedes that this instruction is “manifestly erroneous/’ but still holds that the giving of the instruction is not reversible error.
*51Without this vital error in giving this instruction, a verdict in favor of tbe plaintiff was possible; but on tbe giving of this instruction, a verdict against tbe plaintiff was impossible. Can it ever be said, under sucb circumstances, that sucb an error in law is not reversible ? In tbe first place, tbe instruction gives a false probative effect to certain proven facts in tbe case, raising tbe comparatively insignificant fact of mere injury by tbe running of the car to a degree of proof sufficient to warrant the jury in finding a verdict for plaintiff. In other words, the instruction creates a false quantum of proof on which to rest liability and then tells tbe jury, if they have any doubt as to how tbe injury occurred, they must find a verdict for plaintiff, resting their verdict on tbe mere fact of injury by tbe running of tbe car. It was tbe duty of tbe plaintiff to prove negligence in order to entitle him to recover, and, if be failed to do this be failed to make out his case. If, when all tbe testimony was in, tbe jury were in doubt as to bow tbe accident occurred, it was tbeir duty to find for defendant. This instruction subverts tbe whole law applicable to tbe case, and its effect is just as though the court bad given a peremptory instruction for plaintiff. Tbe rule is general that negligence is not to be presumed from tbe mere fact of injury, but must be established by the evidence; and yet tbe court tells tbe jury by this instruction that, when tbe plaintiff has shown that tbe death was caused by the running of the car, this fact alone was prima facie evidence of liability, and warranted a recovery against tbe defendant company, unless tbe testimony of tbe company ■overcame this presumption. By this portion of the instruction a presumption of liability is created where none exists as a matter of law, and tbe instruction further requires proof on the part of tbe company to overcome this false presumption. But tbe ‘instruction does not stop at this, but goes further and •directs tbe jury that this false presumption of liability cannot be overthrown by conjecture, but can only be overcome by clear proof of such facts and circumstances as would show exoneration from blame on the part of the defendant company. Tbe *52instruction does not stop' here; but, growing more stringent as it proceeds, ’further tells the jury that if, after the production by the defendant company of all its facts and circumstances introduced to overcome this presumption raised by this instruction, the circumstances of the accident remain doubtful, it is the jury’s duty to find for the plaintiff. It was impossible, under this instruction, for the jury to return any verdict savp one for the plaintiff, though the testimony in the cáse fully warranted a verdict for either party. If this instruction was not the potent cause of the verdict in favor of plaintiff, it is certain that it barred the jury from rendering a verdict in favor of defendant. It may be that the jury would have rendered the same verdict without this instruction; but it is possible that, if this instruction had not been given, the verdict would have been in favor of defendant, and in either case, on the facts, the verdict would not have been disturbed.
I have not set out the facts, but request that the reporter make a full statement of same: