Jackson Electric Ry., Light & Power Co. v. Waycaster

• Decision Date: 13 April 1908
• Docket Number: 13,222
• Citation: 46 So. 135,92 Miss. 816
• Parties: JACKSON ELECTRIC RAILWAY, LIGHT & POWER COMPANY v. ARTHUR N. WAYCASTER
• Court: Mississippi Supreme Court

46 So. 135

92 Miss. 816

JACKSON ELECTRIC RAILWAY, LIGHT & POWER COMPANY v. ARTHUR N. WAYCASTER

No. 13,222

Supreme Court of Mississippi

April 13, 1908

FROM the circuit court of, first district, Hinds county, HON WILEY H. POTTER, Judge.

Waycaster appellee, was plaintiff in the court below, and the electric railway company, appellant, defendant there. From a judgment for $ 125 in plaintiff's favor, defendant appealed to the supreme court.

Plaintiff sued the defendant for killing his dog. The evidence disclosed that the dog was seen by the defendant's motorman in charge of an electric car, when about seventy-five yards distant, the animal trotting along upon the railway track on a public street in the suburbs of Jackson; that the motorman sounded his gong, or bell, but the dog paid no attention thereto continuing to run along the track ahead of the moving car for about one hundred and fifty yards. The car was going down grade, the track being wet, on a damp morning, and the motorman, when within half a car's length of the dog, attempted for the first time to prevent running over the animal, but was then unable to prevent the accident. It was shown in evidence that a motorman could have stopped the car in one and a half or two cars' length, under ordinary conditions. The case was tried before the circuit judge, a jury being waived by the parties.

Affirmed.

Williamson Wells & Peyton, for appellant.

The only difference between the present case and that of Mobile, etc., R. R. Co. v. Holliday, 79 Miss. 294 30 So. 820, is that in that case the engineer of the railroad company before the accident, did not see the dog, being engaged in working his engine, while in this case the motorman saw the dog and did everything in his power to avoid the accident. And in this present case, it was shown in evidence that the dog was wandering along the railway track, unaccompanied by appellee, and fully half a mile from appellee's home, and had been frequently on the track before in this vicinity. There was no cut or embankment to prevent the animal from leaving the track. The motorman is shown to have constantly sounded his gong or bell as the car sped along. If the animal had turned just a few feet to the side, either way, the accident would not have happened.

In the Holliday case, supra, CALHOON, J., speaking for the court, said: "We think that this court, on the liability of railroad companies for killing dogs, went to the farthest limit, in Jones v. Railroad Company, 75 Miss. 970, 23 So. 358. We cannot hold a railroad company liable for running over a stray dog, under the facts in this record. The dog is one of the most intelligent of the inferior animals, alert, agile, quick, and might well be supposed to avoid such danger, which cannot be said of horses, mules, horned cattle or hogs." It is true that in the same opinion the learned justice said that the above observations would not apply where a dog was purposely run down, or where the animal could have been seen in time for prevention of the injury. But in the case at bar the dog was not purposely run down. The motorman had the right to presume that the animal would leave the track, and, on finding that it did not, he applied the car-brake promptly. But for the wet and slippery rails, the car would not have run over the animal.

The car was running in a very thinly settled suburb of the city, where there were no residences anywhere near, there being a travelled roadway on either side of the track. In fact, the car was running down grade, propelled only by its own momentum at the time and shortly before the injury. The court below should have rendered judgment against appellee. Kansas, etc., R. R. Co. v. Hawkins, 82 Miss. 209, 34 So. 323; Jones v. Railroad Co., 75 Miss. 970, 23 So. 358.

As to the amount of damages awarded there was no evidence to warrant a finding for $ 125. The appellee, owner of the dog testified that he had been offered $ 100 for the dog, and that he would not have sold the animal for $ 200, the sum demanded. There was some testimony to the effect that a registered dog had sold in the city for $ 85, and another for $ 150. Appellee's dog, however, was not registered.

Watkins & Watkins, for appellee.

It is well established that if a dog is killed by a locomotive or car on a railway track, the railroad company is liable in damages if its employes, at or just preceding the time of injury, failed to use the care which persons of ordinary prudence would ordinarily use under the circumstances. And whether or not the omission of various precautions will or will not amount to negligence, will depend upon the circumstances of the particular case. In the present case the court below decided that the failure of the appellant's motorman to decrease the speed of the rapidly moving car, until within half a car's length of the dog, was gross...