Fore v. Illinois Cent. R. Co

• Decision Date: 22 April 1935
• Docket Number: 31593
• Citation: 159 So. 557,160 So. 903,172 Miss. 451
• Court: Mississippi Supreme Court
• Parties: FORE v. ILLINOIS CENT. R. CO

159 So. 557

160 So. 903, 172 Miss. 451

FORE v. ILLINOIS CENT. R. CO

No. 31593

Supreme Court of Mississippi

April 22, 1935

Division B

February 25, 1935

APPEAL from the circuit court of Madison county HON. J. P ALEXANDER, Judge.

Action by Dr. O. R. Fore against the Illinois Central Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

On suggestion of error. Suggestion of error overruled.

Reversed and remanded. Suggestion of error overruled.

White &amp McCool, of Canton, for appellant.

This accident is no different to thousands of other ones, where the servants of the railroad simply trust to luck and indulge the hope that animals seen upon the right of way will flee the track before being killed.

No attempt was made on the day the mule was killed to reduce the speed of the train as required by law; nor could it have been done at the speed testified to (fifty-five or sixty miles per hour) at that proximity to the corporate limits of Canton, Mississippi.

The law imposes the duty on the railroad company in such a case: "the exercise of reasonable care and prudence; such as a man of ordinary prudence engaged in the same business would exercise, to prevent injury to cattle."

Miss. Central Railroad Co. v. Patton, 31 Miss. 156; Tyler v. Illinois Central R. Co. , 61 Miss. 445; Newman v. Vicksburg R. Co., 64 Miss. 115; Mobile R. R. Co. v. Hold, 62 Miss. 170; New Orleans R. R. Co. v. Thornton, 65 Miss. 256.

W. H. & Robert H. Powell, of Canton, for appellee.

If stock when first discerned on the track are so near to the engine that collision cannot be prevented by the prompt use of all appliances and they are killed, no liability for damages is incurred by the company.

I. C. R. R. Co. v. Walker, 63 Miss. 19; N. O. & N. E. R. R. Co. v. Bourgois, 66. Miss. 3; Railroad v. Whittington, 74 Miss. 412; A. & V. R. R. Co. v. Sterling, 35 So. 137; Alabama & V. R. R. Co. v. Boyles, 37 So. 498.

When the engineer's testimony shows that the accident was unavoidable, and it is not disputed or unreasonable, a peremptory instruction should be given for the railroad company.

M. & O. R. R. Co. v. Weems, 74 Miss. 513; Southern Railroad Co. v. Murray, 39 So. 478; Louisville, New Orleans & Texas Railroad Co. v. Smith, 67 Miss. 15; Y. & M. V. R. R. Co. v. Smith, 68 Miss. 359; I. C. R. R. Co. v. Ash, 128 Miss. 410; Murray v. L. & N. R. R. Co., 168 Miss. 518; Louisville, New Orleans & Texas Railroad Co. v. Tate, 70 Miss. 348; Kansas City, M. & B. R. R. Co. v. Deaton, 9 So. 828.

The engineer and fireman have other duties to perform than looking out for stock on the track and they are not required to keep their eyes glued on the track.

Howard v. Louisville & New Orleans Railroad Co., 67 Miss. 247; M. & O. R. R. Co. v. Holliday, 79 Miss. 294; Railroad Co. v. Morrison, 107 Miss. 304.

A railroad company, in operating its trains, is only required to use reasonable care to prevent injury to animals on its tracks; such care "as a discreet man would exercise to avoid injury."

Railroad Co. v. Field, 46 Miss. 573; Railroad Co. v. Wright, 78 Miss. 125, 28 So. 806; Y. & M. V. R. Co. v. Jones, 111 Miss. 159; Railroad Co. v. French, 75 Miss. 944; Hines v. Andrews, 124 Miss. 292.

The six mile statute can only be invoked when the accident occurs within the limits of the municipality.

Miss. Central Railroad Co. v. Butler, 93 Miss. 654; Hines v. Moore, 124 Miss. 516; Payne v. Hamblin, 126 Miss. 756; New Orleans & Northeastern Railroad Co. v. Martin, 126 Miss. 765; Section 4043, Code of 1906, Hemingway's Code, section 6667.

The statement made by one of the witnesses for appellant, that the train began to sound the stock alarm about one-fourth of a mile before the mule was struck, was a mere guess, pure and simple, and of no evidential value that could be submitted to a jury.

Hancock v. Illinois Central R. R. Co., 158 Miss. 668; 22 R. C. L. 988; R. R. v. Martin, 126 Miss. 765.

Ethridge, P. J., Griffith, J., delivered the opinion of the court on suggestion of error.

OPINION

Ethridge, P. J.

The appellant, Dr. O. R. Fore, sued the Illinois Central Railroad Company for the killing of a mule upon its tracks.

Appellant's proof showed that the mule had gotten out during the night previous to the killing in the morning, and strayed upon the railroad track through an opening in the fence which the railroad had built to fence its track in. This opening seems to have been a wire gate at a place where some private roadway or crossing passed over the railroad tracks. The track from where the mule was killed, in the direction from which the train approached, was one-fourth of a mile or more and was straight, and the view was unobstructed.

The proof for the appellant shows that the mule went upon the track and then down the track in a southerly direction for perhaps one hundred eighty to two hundred twenty-five feet, and then turned and came up the center of the track to the point where it was killed. The appellant's proof also showed that the whistle, or stock alarm, was sounded about one-fourth of a mile from where the mule was struck, and continued to blow from then until the mule was struck, and that the speed was not slacked or slowed down during this period. The mule was struck and dragged along for some distance, and there was blood, hair, and hide along the cross-ties and rails. Shortly after it was struck, a witness went to where the mule was, and, although it was dead, warm blood was flowing from the wounds.

The proof for the railroad company was by the engineer and fireman, who said that the mule was seen a short distance before it was struck, and that the alarm was sounded, and everything done that...