Roberds v. Mobile & Ohio Railroad Co

• Citation: 74 Miss. 334,21 So. 10
• Parties: W. B. ROBERDS v. MOBILE & OHIO RAILROAD Co
• Decision Date: 21 December 1896
• Court: Mississippi Supreme Court

21 So. 10

74 Miss. 334

W. B. ROBERDS v. MOBILE & OHIO RAILROAD Co

Supreme Court of Mississippi

December 21, 1896

October 1896

FROM the circuit court of Monroe county HON. NEWNAN CAYCE, Judge.

Roberds the appellant, sued the Mobile & Ohio Railroad Company before a justice of the peace for the value of a mule which had been killed by a locomotive of the company in a stock law district, a portion of the county in which it was unlawful to allow live stock to roam at large, and recovered in the justice's court a judgment for one hundred dollars; the defendant appealed to the circuit court, where a trial de novo was had before a jury. Under a peremptory instruction from the court, the verdict was for defendant, and plaintiff appealed u from the judgment entered thereon. The state of the evidence, as adjudicated by the court, will be seen from the opinion.

Judgment reversed and cause remanded.

George C. Paine, for appellant.

We submit that the fact that the killing of the mule occurred in the stock law district of the county, under the facts in the case, will not require the appellant to show that the killing was the result of gross or wanton or cruel negligence on the part of the appellee. Especially is this so under the testimony of the appellant, when he shows that the mule was not running at large by his consent or knowledge, but that it had effected its escape from his lot while he was from home. See 3 Ohio St. Rep., p. 172; 8 Am. & Eng. R. R. Cas., p. 314; 38 Am. Rep., 67; 5 Cal. 513; 62 Conn. 503. Before the appellee can invoke this doctrine, it must appear that the appellant turned his mule out in violation of the statute and even then the appellee will not be relieved unless the act of the appellant was the proximate cause of the killing. 42 Am. & Eng. R. R. Cas., 555; 71 Ala. 545; 85 Ill. 379.

The case in 71 Alabama is a fine case and is directly in point as the statute there and the one here are almost the same. We ask the special attention of the court to this case. The appellee has only such rights as the landlord has under the law; he must do no unnecessary hurt to the trespassing animal. See 66 Am. Dec., 552; 71 Ala. 545. It is decided in 4 Ohio St. Rep., 474, that when there is negligence on the part of the owner in turning out his stock contrary to the law, and negligence on the part of the trainmen in killing the stock, the latter is said to be the proximate cause, and the former the remote cause, and hence, the owner can recover. Although the owner knowingly permits his stock to run at large contrary to the law, he may recover for the killing, whether it was due to gross or wanton negligence, or consisted merely of want of ordinary or reasonable care. See 95 Mo. 232; 45 Mo. App., 123; 19 Ga., 437; 20 Am. & Eng. R. R. Cas., 481.

Under the testimony in this case, we earnestly submit that the trial judge committed error in not permitting the case to go to the jury.

Sykes & Bristow, for appellee.

It being admitted that the mule sued for was killed running at large unlawfully in a "stock law" district of Monroe county, the plaintiff was guilty of contributory negligence, and cannot recover for the killing. At any rate, the defendant railroad company is not held to as high a degree of diligence as in other sections; and it devolves on the plaintiff to prove wanton or wilful or gross misconduct on the part of the defendant, or such a degree of negligence as would amount to wantonness or wilfulness. By the provisions of the act of the legislature of Mississippi, of March 9, 1882 (Laws of 1882, p. 237), it is made unlawful for live stock to run at large in the district in Monroe county where the mule was killed; and the owner of such live stock is made liable for all injuries and trespasses committed on all crops and lands in the district, the claim for which is made a prior lien on the trespassing stock.

The question then recurs, does the unlawful act of the owner of stock, in allowing them to run at large on and about the railroad track, in violation of an express prohibition, constitute contributory negligence on his part, so as to defeat his recovery of damages for injury to said stock while so unlawfully upon the track? And while we must admit that there are a few authorities to the contrary, yet we submit that reason and the overwhelming weight of authority in the United States, and the unanimous concurrence of the courts in England, sustain the doctrine contended for by us, that such an unlawful act is contributory negligence. All these authorities hold that "in those states of the union in which the common law rule requiring the owner of domestic animals to keep them from straying, at his peril, is recognized, " and a fortiori where it is forbidden by statute, "it is generally the rule, where there is no statute prescribing a different liability, that a railroad company is not liable for injury to such animals straying upon its track." 7 Am. & Eng. Enc. L., 922, and cases cited in note 2.

In the states of Maine, New Hampshire, Maryland and Pennsylvania, it is broadly held that even for a wanton injury to stock unlawfully straying on the track, the railroad company is not liable. Railroad Co. v. Skinner, 19 Penn. St., 298; Railroad Co. v. Lamborn, 12 Md., 257; Perkins v. Eastern Railroad Co., 29 Maine, 307; Railroad Co. v. Rehman, 49 Penn. St., 101; Woolson v. Railroad Co., 19 N. H., 267.

And in Clark v. Railroad Company, 11 Barbour, 112, it is held that there can be no recovery against a railroad company for any injury to animals by gross negligence, in case where the cattle injured were straying upon the track. The principle which defeats a recovery in such case is that the owner of the cattle permitting them to be at large, unlawfully, upon the track, is thereby guilty of contributory negligence, and it is therefore negligence against negligence; and the courts will not weigh the precise degrees of the negligence on both sides. But in several cases in Mississippi the appellate court has held, by the plainest and absolutely unavoidable implication, that where the running at large of stock is made unlawful by local or general laws, such straying constitutes contributory negligence on the part of the owner.

In Railroad Company v. Field, 46 Miss. 578, Judge Simrail says: "The common law principle which required the owner to confine his stock on his own premises, and made him a wrongdoer if they escaped into the lands of his neighbor never obtained in this state, " and held further, that uninclosed lands, although private property, are quasi common, or, as expressed in local parlance, a "range, " in which the owners of domestic animals generally may permit them to go at large and depasture without...