Mobile, J. & K.C.R. Co. v. Kea

Decision Date14 December 1914
Docket Number16840
PartiesMOBILE, JACKSON & KANSAS CITY RAILROAD CO. v. KEA
CourtMississippi Supreme Court

APPEAL from the circuit court of Neshoba county. HON. C. L. DOBBS Judge.

Suit by J. J. Kea against the Mobile, Jackson & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

Flowers Brown & Davis, for appellant.

1. The injury complained of not having been inflicted by the running of the locomotives or cars of appellant, as in section 1985 of the Code, raising the presumption of negligence, does not apply. M. J. & K. C. R. Co. v. Kea, 50 So. 628; Lowe v. A. & V. R. Co., 51 Miss. 9.

2. Before recovery can be had for injury to an animal which has strayed upon the tracks of a railroad company, it must be shown that such injury resulted from some negligence, or mismanagement on the part of the servants of the railroad company. Raiford v. Railroad Co., 43 Miss. 233; M. J. & K. C. R. R. Co. v. Kea, 50 So. 628; Railroad Co. v. Enochs, 42 Miss. 603; Railroad Co. v. Blakeney, 43 Miss. 218; Railroad Co. v Miller, 40 Miss. 45; Lowe v. Railroad Co., 32 So. 907; Beasley v. Railroad Co., So. 864.

3. It was not necessary to stop or check the train because the horse was near the road and ran along it, therefore no negligence whatever has been shown. N. O. N.E. R. R. Co. v. Thornton, 3 So. 654; R. R. Co. v. Money, 8 So. 646; Railroad Co. v. Wright, 28 So. 806; Railroad Co. v. Lowe, 32 So. 907; Railroad Co. v. Hudson, 50 Miss. 572.

G. E. Wilson, for appellee.

Our court in a case where the question of negligence was not nearly so strong as the case at bar, held that the determination of the question was for the jury. Quinn v. Southern Ry. Co., 21 So. 6. In reversing the case and announcing the opinion that the same should have been submitted to the jury, the court cited Scott v. Railroad Co., 72 Miss. 37; Holmes v. Simon, 71 Miss. 245. Also, in the case of Roberts v. Mobile & Ohio R. R. Co., 21 So. 10, it is held that notwithstanding an animal was trespassing on the railroad track, that it does not preclude a recovery by the owner for its being killed by a train through the negligence of those in charge of it, or prevent the application to the case of Code of 1892, section 1808, providing that the killing shall be prima facie evidence of negligence, also where the evidence as to the killing of stock by a railroad train is conflicting, the case should be submitted to the jury.

In the case of the Yazoo & Mississippi Valley R. R. Co. v. Lambreth, it is held that a horse grazing near a railroad track, being frightened at the whistle of the engine, ran into an opening between the embankment on which the track was laid and the wire fence, erected on the right-of-way with the company's consent, until he came to a point where the fence and the bank met, and terrified at the approaching engine, attempted to leap the fence and was injured, and the engineer testified that he did not see the animal, that the jury was warranted in finding that the company's servants were negligent. (21 So. 801.) In this case the animal was not struck by the train at all but was killed in a similar manner to the animal in the case now in question. How can this case be reversed without the court reversing absolutely this decision?

On the question of negligence, we further call the attention of the court to Young v. Ill. Central R. R. Co., 40 So. 870; McMillan v. Southern Ry. Co., 23 So. 182. As to a satisfactory solution of the principles involved in this case, we call the court's special attention to the case of Kansas City, Memphis & Birmingham R. R. Co. v. Doggett, 67 Miss. 250.

In the case of the Mobile & Ohio R. R. Co. v. Holt, in which a cow was killed, the court of our state in its opinion, speaking with reference to the duty of the railroad company, said: "Should it, under the circumstances, have foreseen that the natural instinct of a terrified brute would necessarily impel it to seek the other and obstructed side, where all its companions were, and was its whole duty done when it run on without reference to the cow to close pursuit? We cannot say that the law makes any rule on the subject. It was particularly a question of common sense and common experience, and as ever, we are contented to leave it to the jury, who seem to have been correctly instructed."

All of the foregoing authorities are from our own state court. In addition thereto, on the question as to whether or not the court should have granted the peremptory instruction asked by appellant in the case, we submit the following. 6 Rapelje & Mack's Digest of Railway Law, 802.

REED, J. SMITH, C. J. dissenting.

OPINION

REED, J.

Appellee recovered judgment against appellant for the value of a mare. The animal was not struck by a train of appellant, but was injured by running into and falling from a trestle on the roadway. This case was before the court on a former appeal. Railroad Co. v. Kea, 96 Miss. 195, 50 So. 628. It was then decided that section 1985 of the Code of 1906, which raises the presumption of negligence, has no application to the case, "as the mare was not struck or injured by the running of a train." On this appeal it is again contended that the peremptory instruction to find for appellant should have been given.

It was necessary for appellee to prove that the injury to the animal resulted from some negligence by the appellant. Reasonable care and prudence only is required of a railroad company in the running of its trains so as to avoid injury to animals on its track. The mare, accompanied by her colt, was seen immediately before the injury, feeding just outside the right of way. When they were seen by the engineer, they were near the track and about four hundred yards distant from the trestle. The track was downgrade, and the engineer got his train under control and blew the cattle alarm whistle. The animals began running on the right of way and along the track, at first going through borrow pits. These borrow pits--that is, depressions formed by the taking or borrowing, of earth to build the railroad embankment--were from eight to fifteen feet in width, and were at the point where the animals were first seen shallow, but became deeper as they neared the trestle and the embankment was higher. After running in the pits or depressions for a distance, the animals got upon level ground and continued to run. Then they went on the track, and ran on down to the trestle, which the mare attempted to cross, and jumped or fell therefrom. The train was about two hundred yards from the animals when first noticed by the witnesses. The train slowed up, and was brought to a stand some thirty or forty yards--say at least one hundred feet--from the trestle, and at least one hundred and twenty-five feet from where the mare went off the trestle. The right of way was not fenced. It appears from the evidence that brush and logs from the clearing of the right of way several years prior were piled along the right of way. There was an opening...

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