Hines v. Thompson

• Decision Date: 01 October 1920
• Docket Number: 21345
• Citation: 86 So. 450,123 Miss. 634
• Court: Mississippi Supreme Court
• Parties: HINES, DIRECTOR GENERAL OF RAILROADS, v. THOMPSON

86 So. 450

123 Miss. 634

HINES, DIRECTOR GENERAL OF RAILROADS, v. THOMPSON

No. 21345

Supreme Court of Mississippi

October 1, 1920

APPEAL from circuit court of Monroe county, HON. C. P. LONG, Judge.

Action by Clabe Thompson against Walker D. Hines, Director General of Railroads, operating the Mobile & Ohio Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.

Reversed and dismissed.

J. M Boone, for appellant.

The engineer M. L. Dodd, who has had an experience of forty-seven years as locomotive engineer, is the only witness in the case who gave the facts as to the killing of the mule. No other witness knew anything about how the mule was killed, other than that it was evidently struck by the train.

Mr Dodd states that he was running passenger train No. 2 at the time he struck this mule; that he was in his seat looking ahead when he saw the male; that the mule was then standing about twenty or thirty feet from the track facing toward the engine, and therefore had the appearance simply of a man standing there, and that the mule continued to stand still until the engine was about forty yards from it and then he turned and ran towards the track, and the engineer for the first time discovered that it was an animal; and that he was then too close to the mule to stop his train or to make any substantial reduction of the speed of the train before it reached the mule, forty yards away only; that instead of blowing his whistle he opened the cylinder cocks, as that would sometime frighten them off; that the mule didn't pay any attention to that but instead ran up to the engine and ran into the side of the engine, that if he had thrown on his emergency brakes he would not have reduced the speed of the train enough to notice it.

This mule was standing on the engineer's side of the track and the fireman was breaking up coal, or putting coal in the engine. This engineer said the mule was so close to him that he opened the cylinder cocks to try to make him turn; that it would make seven out of ten under the same circumstances turn, that the headlight of the engine was beyond the mule and the mule was in a dark space below the light and he couldn't see whether the mule turned his head to the south or the north, and therefore could not say whether the mule was hit on its left side or its right side; that his left side was toward the engine and just as he got up to the engine he turned, but he did not know whether he turned facing north or facing south. He said instead of slowing the engine after the mule made his break to the track he would have gone faster if he could; that the right of way along there was practically level, a roadbed of not over ten or twelve inches.

Under this statement of facts it is perfectly clear that the mule was not killed as a result of negligence of the defendant but that defendant met the burden imposed by the prima-facie statute. This engineer was pulling a passenger train loaded with human beings. It sometimes happens that running over live stock will derail a train and endanger the lives of the passengers thereon. We find nothing in the testimony of other witnesses in the case, or physical facts, that in any way conflicts with the testimony of the engineer. "There is no obligation on the servants of the company to keep a lookout for trespassing stock." Y. & M. V. R. R. Co v. Jones, 71 So. 309.

This court, in the case of Railroad v. Wright, GR Miss. 127, said: "Surely a train load of human beings need not be jeopardized to avoid killing a mule. Only reasonable care is required in such case; such care as a discreet man would exercise to avoid injury. The engineer need not stop his trais or check his speed because animals appear on the side of the track, and under such circumstances to blow his whistle will often cause the very disaster sought to be avoided.

In the case of Y. & M. V. R. R. Co. v. Brumfield, 64 Miss. 637, this court speaking through CAMPBELL, J., said: "It is not the duty of an engineer to stop his train until there is an apparent necessity for it. Ordinarily, the discovery of animals or persons, near the road does not require the stopping of the train. That should occur only when it seems to be necessary to avoid collision."

In the case of N. O. R. R. Co. v. Bourgeois, 66 Miss. 3, this court, speaking through ARNOLD, C. J., said: "It cannot be said to be the duty of a railroad company to check the speed or stop its passing train every time an animal is seen near its track, unless there is something to indicate danger or the necessity of the animal going upon the track; and if an animal appears upon the track so near the engine that collision cannot be prevented, no liability is thereby incurred. Impossibilities are no more required by law of railroad companies than of other persons. Something must be confided to the discretion of the engineer or person in charge of the train, and infallibility on his part is not expected or required." The above case stated the law of Mississippi on the issue involved in this case, and I know of no case in Mississippi holding to the contrary.

As stated in the Wright case, supra, the engineer is allowed under the law to exercise discretion to avoid injury, and if blowing the whistle is thought to be the wrong thing to do then no whistle ought to be blown. In the case at bar, it is natural that the engineer would conclude that as long as the mule stood still off from the track it was advisable not to blow the whistle, as that would only have the effect, if any effect at all, to start the mule to running. As long as the mule stood still away from the track, prudence on the engineer's part necessarily directed that he do nothing that would have a tendency to start the mule to running, and it was an act of prudence in attempting to get by the mule while he stood still. When, however, the mule started towards the track only a hundred and twenty feet ahead of the engineer it being a passenger train running doubtless in the neighborhood of thirty miles an hour, it was evident to the engineer that blowing the whistle would do no good and that an effort to stop the train would be...