Kansas City, M. & B.R. Co. v. Hawkins

Decision Date20 April 1903
Citation34 So. 323,82 Miss. 209
PartiesKANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD COMPANY v. CALVIN S.D. HAWKINS
CourtMississippi Supreme Court

FROM the circuit court of Marshall county. HON. PERRIN H. LOWREY Judge.

Hawkins appellee, was plaintiff, and the railroad company, appellant was defendant in the court below. From a judgment in plaintiff's favor for $ 450 defendant appealed to the supreme court.

The evidence was, in substance, as follows: Plaintiff was employed by the sheriff of Marshall county, Miss., from whom some prisoners had escaped, to trail them up with his dog. At the time plaintiff's dog, a valuable, well-trained bloodhound, was killed, there were two men and two other dogs along with plaintiff and his dog. They had trailed the prisoners down the railroad track, going west nearly one thousand yards, and were in a cut, and there was also a curve in the railroad before it reached the curve extending through the cut. Just before the train that killed the dog passed which was a freight train, a passenger train passed them, and it blew its whistle, and the men all got off the track, and took the dogs off; but this freight train ran upon them very fast and gave no warning of any kind, no whistle was blown and the bell was not rung. The men were all walking along the track together, and one dog was on the track about ten feet ahead of them, and plaintiff's dog was nearly thirty feet ahead. The first thing that gave any warning of the approaching train was the flash of the headlight, when one of the men said, "Lookout, here comes a train," and all of the men at once got off the track, and the nearest dog was reached and gotten off the track, but there was not time enough to get to the dog that was killed. The engineer and fireman both testified that they did not know any dog was killed, and that the bell was not rung, and the whistle was not blown. The engineer testified he was keeping a strict lookout, and did not see the men or the dogs. The fireman did not recollect what he was doing.

Affirmed.

J. W. Buchanan, for appellant.

The court, in Mobile, etc., R. R. Co. v. Holliday, 79 Miss. 294, in discussing the liability of railroad companies for killing dogs, says:

"Of course these observations do not apply where a dog was purposely run down, or where he was seen in such a cut as prevented escape, or where the dog was seen and the negligence was so gross as to be tantamount to design."

In the case at bar, as the dog was not seen, there could not have been any purpose to run him down and kill him. From the width of the cut and the space on either side of the track to the embankment, there was nothing to prevent the dog from escaping the engine. It is undisputed that the dog was not seen, and it cannot be said that it was negligence in failing to see him, much less such gross negligence as to be tantamount to design.

Alexander & Alexander, for appellee.

The only defense set up is that the engineer and fireman did not see the crowd of men and dogs. We can safely rest this case on the testimony of the engineer and fireman themselves. They testified that the dog was killed in a cut 180 yards long, through which the track makes a very gradual curve. It is true they say they did not see the dog, but they do not testify that they were occupied with lubricating the engine or adjusting valves, etc.

The engineer very candidly admitted that he does not know whether or not he was on the train that killed the dog. If h...

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19 cases
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