Windham v. Mobile & O. R. Co.
| Decision Date | 29 November 1926 |
| Docket Number | 25995 |
| Parties | WINDHAM v. MOBILE & O. R. CO. [*] |
| Court | Mississippi Supreme Court |
. (Division A.)
RAILROADS. Instruction authorizing recovery only on showing animal was struck by train held erroneous under evidence.
Instruction authorizing recovery against railroad for death of horse only on showing that animal was actually struck by train held erroneous under evidence tending to show that negligent operation of train caused frightened animal to meet its death by jumping from trestle into ditch.
APPEAL from circuit court of Prentiss county, HON. C. P. LONG Judge.
Suit by Leonard Windham, by next friend, Ed Windham, against the Mobile & Ohio Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
Reversed and remanded.
Friday & Windham, for appellant.
The instruction, the refusal of which is complained of was drawn under section 1895, Code of 1906. Under this statute and the holdings of this court, appellant was clearly entitled to this instruction. See The Thornhill case, 106 Miss. 387. The law required the engineer to exercise reasonable skill and care to prevent the injury after he discovered the position and peril of the horse. On the contrary, the record shows that he did neither, but wilfully butchered the horse while it was entrapped. Under the law and the facts as shown by appellee's own witness, it cannot escape liability.
Ely B. Mitchell, for appellee.
This horse was not on the railroad tracks at a crossing, but was on the railroad track where he had no right to be and was a trespassing animal. The only duty the agents of the railroad company owed this horse was not to kill him wilfully or recklessly. The assumption is that when an animal is running along the railroad track and not between the rails that the animal will turn off the railroad track and escape to a place of safety. As long as this horse was running down the path to the right of the track he was in an absolutely safe place, and it was not necessary for the engineer to do anything until he saw this trespassing animal in a perilous position or place of danger.
The jury by its verdict accepted the testimony of the eye-witness for the defendant and refused the testimony of the eye-witness for the plaintiff. In addition thereto, they held that the horse was not killed through any negligence or carelessness on the part of the agents of the defendant. "A verdict based upon conflicting evidence is conclusive." Thompson v. Poe, 104 Miss. 586; Estes v. Jones, 119 Miss. 142; L. & N. R. R. Co. v. Jones, 98 So. 320; City of Hattiesburg v. Beverley, 123 Miss. 759; N. O. & N. E. R. R. Co. v. Ward, 132 Miss. 462; Ayers v. Tonkel et al., 103 So. 361.
The appellant claims that the court committed error in refusing instruction number one for the plaintiff based upon the prima-facie statute, but see Nichols v. G. & S. I. R. R. Co., 83 Miss. 139; Lowe v. Ala., etc., Ry. Co., 81 Miss. 9, 32 So. 907; M. J. & K. S. R. R. Co. v. Kea, 96 Miss. 197; So. Ry. Co. v. Daniels, 108 Miss. 370.
The appellant instituted this suit against the Mobile & Ohio Railroad Company for damages for the death of a horse, alleged to have been caused by the running of one of defendant's trains, and from a verdict in favor of the defendant this appeal was prosecuted.
For the appellant, there was testimony to the effect that the horse became frightened at the approach of the train, and started running ahead of the train, and between the railroad track and a high embankment; that there was no avenue of escape for the horse, and it ran ahead of the train for about one hundred fifty yards, and until it came to a trestle over a ditch about twenty-five feet deep, and thereupon whirled back in front of the train, and was struck and knocked into this ditch or creek.
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