Lowe v. Alabama & Vicksburg Railway Company

• Decision Date: 20 October 1902
• Parties: AMANDA C. LOWE v. ALABAMA & VICKSBURG RAILWAY COMPANY
• Court: Mississippi Supreme Court

32 So. 907

81 Miss. 9

AMANDA C. LOWE v. ALABAMA & VICKSBURG RAILWAY COMPANY

Supreme Court of Mississippi

October 20, 1902

October 1902

FROM the circuit court of Lauderdale county HON. GUION Q. HALL Judge.

Mrs Lowe, appellant, was plaintiff in the court below; the railway company, appellee, was defendant there.

A train of railway cars was passing along appellee's track upon a fill, or dump, at least ten or twelve feet high, when a horse belonging to the plaintiff, being frightened thereby, ran at the foot of the dump, and, of course, below the train parallel with the railroad. A ditch extended diagonally to the railroad, coming nearer to the dump as it approached the point where it passed under the track. There was a ford, or path, across the ditch quite near the foot of the railroad embankment. The horse, apparently, intended to cross the ditch at this ford, or path, which it could have done with safety, but when it reached a point near the ford, and between the railroad embankment and the ditch, suddenly wheeled and fell, or jumped into the ditch and broke its neck. The locomotive or cars of defendant did not strike it but appellant showed that the engineer opened the cocks on his engine, allowing steam to escape, and thereby startled the animal and caused it to jump into the ditch to its destruction. The court below gave a peremptory instruction for the defendant, and the plaintiff appealed to the supreme court.

Affirmed.

F. V. Brahan, for appellant.

The court erred in granting the peremptory instruction, as asked by defendant, and in refusing the instruction as asked by plaintiff. I rely on the case of New Orleans, etc., R. R. Co. v. Thornton, 65 Miss. 256, for a reversal of this case. Undoubtedly a railroad company may incur responsibility for injuries to a horse not struck by the train, where some wrong is done by its servants.

The testimony in this case is quite different from the Thornton case, and I submit that from the testimony of Hughey, the wrongful and apparent willful act of the engineer in enveloping the horse with steam, was the cause of his death, and the defendant is liable. At any rate, in view of the conflicting testimony of plaintiff's and defendant's witnesses, saying nothing about the irreconcilable statements of defendant's own witnesses, the case should have gone to the jury on the theory of plaintiff's refused instruction.

Hughey testified that the steam completely enveloped the horse, and caused him to jump and break his neck, and the defendant's witnesses denied that the steam ever reached the horse, but stated the engine was three hundred and fifty to five hundred feet from, and past the horse, when the steam was discharged.

The engineer in charge of the train admitted seeing the horse running before he came up with it and passed it, and it was his duty to have kept a lookout for the horse, and the horse was in a few feet of the ford, where he was proceeding to cross the ditch and escape danger, when the engineer "opened the cocks" on him and made him leap to his destruction.

As against this view, we have the defendant's absurd view, that the horse, though within a few feet of the crossing, waited until the train had passed him three hundred and fifty to five hundred feet, and seeing the steam discharged, committed suicide without any provocation whatever.

McWillie & Thompson, for appellee.

This case does not fall within the provisions of code, 1892, § 1808, making the infliction of injury to persons or property by the running of railroad locomotives or cars prima facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury. The case is clearly without the terms of the statute, and the burden of proof is on the plaintiff to make out her case and to show that defendant's servants did not exercise reasonable care, etc. Illinois, etc., R. R. Co. v. Weatherby, 63 Miss. 581.

Hughey the witness upon whose testimony the appellant relies, was one hundred yards away from the scene of the accident. He says that when the engine "got up" with the horse they (meaning the engineer) let the steam on him from the engine, "and it whirled, " and he guessed the horse turned and jumped into the ditch. The witness' view was obstructed by steam; nevertheless, he claims that the horse was covered by it. Aside from the...