New Orleans & Northeastern R. R. Co. v. Bourgeois

• Decision Date: 04 March 1889
• Citation: 66 Miss. 3,5 So. 629
• Court: Mississippi Supreme Court
• Parties: NEW ORLEANS AND NORTHEASTERN R. R. Co. v. F. A. BOURGEOIS

5 So. 629

66 Miss. 3

NEW ORLEANS AND NORTHEASTERN R. R. Co. v. F. A. BOURGEOIS

Supreme Court of Mississippi

March 4, 1889

APPEAL from the circuit court of Hancock county, HON. S. H. TERRAL Judge.

The facts are stated in the opinion. After the evidence was all introduced the defendant asked for a peremptory instruction in its favor, which was refused.

Judgment reversed and new trial awarded.

Fewell & Brahan, for appellant.

The main question here is, was it the duty of the engineer to stop the train until the cow got upon the track, or was there apparent necessity for stopping? This question has been answered in the negative by this court in Y. & M. V. R R. Co. v. Brumfield, 64 Miss. 637.

There was no material conflict of testimony in the case, and considering the undisputed testimony of the engineer, the court should have granted the peremptory instruction to find for the appellant.

Ford &amp Ellis, for appellee.

It was, under the circumstances, the duty of the engineer to stop the train when he saw the animals near the track. The facts show that the engineer was running the "cannon-ball" train, and when within three hundred or four hundred yards of the station, Nicholson, and in plain view thereof, he saw a bunch of cattle, fifteen or twenty in number, among them one of the animals in question, standing out near the track. Some of these cattle were actually on the track. They could be seen a distance of a quarter of a mile. Instead of checking the speed of the train, the engineer blew one or two long whistles, but did not slacken the speed.

It is hardly necessary to argue the proposition that when the engineer saw the cattle on the track it was his duty to slacken speed. Had he done so the accident would not have occurred.

According to the engineer's own testimony, he was negligent, for he admits that he could have seen the animals in each instance in ample time to stop, and it was therefore his duty to have stopped or slackened speed and avoided the injury.

OPINION

ARNOLD, C. J.

This action was brought by appellee to recover damages for the killing of three head of cattle by appellant's trains. The cattle were killed at different times and places. The testimony shows, without conflict, that the animals were not on the track until the train came near them, when they got on, or attempted to cross the track, within a few yards of the engine running at the rate of from twenty to thirty miles an hour.

It appears from the testimony for appellee, that at the places where two of these cattle were struck, the view along the track for several hundred yards was unobstructed, and that stock on or near the track might have been seen that distance. This is not denied, but the engineer who was on the train, testified, and he is not contradicted on this point, that he did not see either of the cattle, until they were so near the engine that he could not check or stop the train in time to save them, and that he sounded the whistle or stock alarm and did all he could, under the circumstances, to prevent the collision, but was unable to do so.

It is not shown or suggested, that the engineer could or should have done anything that was not done, after the cattle got on the track; but the contention is, that he might have seen them near the track, and should have reduced the speed of the train or stopped it, before they came upon the track.

We need not consider what degree of care, consistent with his other duties, was required of the engineer in keeping on the lookout for obstructions on the track, for if it be admitted that he saw the cattle near the track, before they came upon it, the view contended for cannot be sustained. If adopted...