Mobile & O.R. Co. v. Holiday

• Citation: 79 Miss. 294,30 So. 820
• Parties: MOBILE & OHIO R. R. CO. v. WILLIAM R. HOLLIDAY
• Decision Date: 19 December 1901
• Court: United States State Supreme Court of Mississippi

30 So. 820

79 Miss. 294

MOBILE & OHIO R. R. CO. v. WILLIAM R. HOLLIDAY

Supreme Court of Mississippi

December 19, 1901

FROM the circuit court of Monroe county. HON. EUGENE O. SYKES Judge.

Holliday the appellee, was the plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in plaintiff's favor, the defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

Charles M. Wright, for appellant.

A dog is an animal that rarely attracts the attention of persons while, on the other hand, such an animal as a horse or a cow is almost sure to do so. There are a thousand cows and horses killed on railroad tracks where one dog is killed. Engineers know this, and hence they rely upon a dog to take care of itself, and do not pay the same strict attention to them that they do to ordinary domestic animals. This is reasonable care exercised by them, and all reasonable men and all reasonable engineers would do likewise. Reasonable care is only such care as ordinarily prudent men usually exercise in their every-day vocations. What is reasonable care as to a dog must not be reasonable care as to a horse or a cow, or other domestic animals. Jones v. Bonds, 40 F. 281.

In the case at bar the testimony shows that engineer Tatum kept a lookout whenever it was possible for him to do so, consistent with his other duties required in properly operating his engine; that these duties were necessary to be discharged to secure the proper operation of his engine, which he was required to properly operate under the law and under his instruction from his superior officers. The engineer testified that he did not see the dog; that he was in the discharge of his duties; that he could not have seen the dog while discharging his duties; that these duties are necessary in properly operating his engine. This testimony is uncontradicted, and entitled defendant to a judgment.

E. O Sykes, Jr., on the same side.

The court below erred in refusing the peremptory instruction asked by appellant. Howard v. Louisville, etc., Ry. Co., 67 Miss. 247. Reasonable care is all that was required of the railroad company or its employees, and such care was duly exercised in the instance involved. The nature of dogs, the circumstances and surroundings, all contribute to establish that the engineer did his full duty. Jennison v. Railway, 75 Ga. 444.

Baxter McFarland, for appellee.

The killing of appellee's dog was manifestly the direct result of a flagrant disregard by appellant's employees of an imperative duty. The idea that railroad companies are absolved by the law from all duty to keep a lookout for three-fourths of a mile after starting their trains from their numberless stations, where animals and dangers are thickest, because engineers and firemen are under a paramount duty to keep attention fixed upon work about the engines--virtually what is here claimed--is a non sequiter as well as monstrous. In that case it would be the duty of the companies to have some one who could keep a lookout; not that the companies would be absolved. The duty to so use their own as not to injure others would require this. If the primary duty of the engineers and firemen is, as contended, the paramount duty to the public would bind them to this much. It is, therefore, no excuse that these employees were too much occupied with these so-called "primary duties" to keep a lookout and see the dog; for that is what the contention virtually amounts to, since they obviously could have seen the dog had they tried. In...