Illinois Central Railroad Co. v. Person

• Decision Date: 16 January 1888
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. P. C. PERSON

3 So. 375

65 Miss. 319

ILLINOIS CENTRAL RAILROAD COMPANY v. P. C. PERSON

Supreme Court of Mississippi

January 16, 1888

APPEAL from the Circuit Court of Yalobusha County, HON. W. S FEATHERSON, Judge.

This is an action brought by P. C. Person against the Illinois Central Railroad Company to recover damages for the killing of a mule of the former by a train of the latter.

It appears that defendants' train, it being a pay train consisting of engine, tender and two light cars, was running at about twenty-five miles per hour, and when it was approaching a "country neighborhood" railroad crossing the engineer first saw the mule in question running toward the crossing, and some thirty or forty feet therefrom. He made no effort to stop his train, nor sounded any alarm nor made any attempt to frighten the mule or avert the collision. The mule rushed ahead, there was a collision, and the mule was so injured therefrom that it afterwards died.

On the trial the plaintiff testified as follows: "Witness and F. C. Cornelius, supervisor of defendants' road, agreed that witness should furnish posts and Cornelius would furnish wire, and put up a wire fence along either side of the railroad track, leaving an opening in the fence on either side where a neighborhood road running east and west crosses the railroad track. And Cornelius agreed that he would put up and keep up gates or good bars at the opening on either side of the railroad track; and the witness furnished the posts and the fence was built, but no gates or bars were furnished. All that was done at the opening was to drive large railroad nails in the posts at the opening in the fence, the nails being on the outside from the railroad track, and on these as many as three or four poles were laid. These poles had settled and broken down, and for some two years before the mule was killed the openings were exposed so that stock could pass through on to the railroad track."

The defendant objected to the introduction of the above testimony, but the objection was overruled.

There was judgment for the plaintiff, and the defendant appealed.

Affirmed.

W. P. &amp J. B. Harris, for the appellant.

1. It is perfectly obvious, from what the witnesses said, that the company was not liable on account of any negligence in moving or running the train, or in having proper appliances of all sorts. For once at least the sudden running upon the track at the approach of a train at full speed is conceded.

2. The defendant, on the trial, objected to the evidence touching the contract of servitude by the supervisor for the time as to the gate at the crossing, because the suit was not for a breach or neglect of duty under a contract as to fence and gate.

It will at once occur to the court that a liability for a breach of contract by which it is claimed that the railroad company is bound to pay for all stock killed which enter by the opening without regard to the question of the management of the train and the circumstances attending the killing, is a very different thing from the ordinary liability for killing animals at large and coming upon the track; and that while, as to the one case (the last mentioned), the statutory presumption arises...