Howard v. Louisville, New Orleans & Texas Ry. Co

• Decision Date: 03 February 1890
• Citation: 7 So. 216,67 Miss. 247
• Parties: W. E. HOWARD v. LOUISVILLE, NEW ORLEANS & TEXAS RY. CO
• Court: Mississippi Supreme Court

7 So. 216

67 Miss. 247

W. E. HOWARD v. LOUISVILLE, NEW ORLEANS & TEXAS RY. CO

Supreme Court of Mississippi

February 3, 1890

October 1889

FROM the circuit court of De Soto county, HON. W. M. ROGERS Judge.

The appellant, W. E. Howard, brought this suit against the Louisville, New Orleans & Texas Railway Company, to recover the value of a mare killed by one of its trains.

There is no material conflict in the evidence. The witnesses for the plaintiff testified that the tracks of the animal came upon the railroad at a point nine hundred and seventy-five yards from the cattle-guard where it was overtaken and run over by the train; that these tracks showed that the mare was running with rapid and constantly accelerated speed, and that the railroad was straight, and the view unobstructed.

The engineer testified that the accident occurred at night; that the train stopped at a water-tank about four hundred yards from the place where the tracks came upon the railroad, and after starting he discovered that the lubricator of his engine was not working properly, and he left his seat in order to regulate it; that this was necessary to be done and required him to leave his post of observation, that he was thus engaged for two or three minutes, the train continuing to run at the same rate of speed as when he began to work on the engine, viz., about ten or twelve miles an hour; that while occupied in this manner he felt the engine go over an obstruction as it passed the cattle-gap; that he afterwards learned that it had run over a mare.

The fireman testified that he was engaged at the time in shoveling coal into the engine. His testimony in all respects corroborated that of the engineer. Neither of them saw the animal, and nothing was done to check the speed of the train.

The court granted a peremptory instruction in favor of the defendant, and from a judgment in accordance therewith, after motion for new trial overruled, the plaintiff appeals.

Affirmed.

Buchanan & McKay, for the appellant.

The burden of overcoming the presumption of negligence was on the defendant. Code 1880, § 1059; 59 Miss. 283. It is not denied that no care was exercised to prevent the accident after the animal came on the track. The engineer could have seen it, but did not. It is not shown that after doing all they could, the injury was unavoidable. The question was one of fact, even on the defendant's own evidence, and it was error to withdraw the case from the jury. R. R. Co. v Jones, 95 U.S. 441. It is only when the facts are undisputed, and the conclusions to be drawn therefrom indisputable, that the question of negligence is for the court. Such cases are very rare. Whittaker & Smith on Neg 40.

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