Yazoo & Miss. Valley Railroad Co. v. Williams

• Decision Date: 03 February 1890
• Citation: 67 Miss. 18,7 So. 279
• Parties: YAZOO & MISS. VALLEY RAILROAD CO. v. JEFF. WILLIAMS
• Court: Mississippi Supreme Court

7 So. 279

67 Miss. 18

YAZOO & MISS. VALLEY RAILROAD CO. v. JEFF. WILLIAMS

Supreme Court of Mississippi

February 3, 1890

October 1889

FROM the circuit court of Leflore county, HON. J. B. CHRISMAN Judge.

Appellee recovered a judgment against appellant in the court below for one hundred and twenty-five dollars, damages for a mare killed and injury to a mule, struck by a running train. No point is made in this court as to the amount of the recovery. The only controversy is as to the liability of the company for the injury to the stock. On this point the evidence is set out at, length, that for the plaintiff being given in full as it appears in the bill of exceptions.

Bonner Lee testified:

"That the track was straight where the stock were struck, and nothing on the track or on either side to obstruct the view of the engineer for half a mile before striking the horses that witness was going to the Alliance meeting--was travelling from the train as it approached and about two hundred yards from the track; heard the train coming and was looking toward it; when the engineer got near the stock-guard he saw it, and then saw the animals in question on the track fifty or one hundred yards in front of the engine and at that instant he passed behind the body of a tree which intervened between him and the horses, and when he passed from behind said tree they were knocked off, but he did not see them struck; that he did not see the horses on the track until the engine blew the whistle; that the train stopped at the cross-road below the cattle-guard, and that he has stepped the distance from the cattle-guard to said crossing, and found it to be three hundred yards; that the engine stopped on said crossing; that there were other horses on the track but made their escape. The horses ran about thirty yards before they were struck, and there was a rail fence which came up to the cattle-guard above where the horses were struck. It was, I suppose, eight or nine rails high. The whistle was not sounded till they were right on the stock and the train did not slow up till it struck the stock.

"John Johnson testified:

"That the train which struck the stock in question was going south that he was on west side of the railroad travelling southeast and nearly parallel with the train as it approached the stock; that when the train was at or near the stock-guard he saw for the first time the animals in question on the track about fifty or sixty yards below the engine; but he was looking at the train and not for the stock--that he heard the train coming and was looking out for it, and when he saw the stock he thought to himself that the train would get them, and they did not run down the track more than fifty yards before they were hit; that there is a field north of the cattle-guard and nothing to obstruct the view on the track for half mile or more--that south of said cattle-guard on both sides of the railroad outside of the right of way is woods and cane; that if the whistle blew he did not know it. The train did not slow up till it struck the stock, and it appeared to him to be a wilful killing;"

Redmond, for defendant, testified substantially as follows: I was engineer of the train. While in the field, some distance above the cattle-guard, I blew the whistle for the crossing below. Saw three horses or mules on the right-of-way, south of the cattle-guard; they were slightly frightened by the whistle, but began grazing again. While keeping watch on these animals two others sprang upon the track, about thirty feet in front of the engine; they were concealed from view by the fence which came up to the track. I immediately reversed the engine, threw open the throttle, blew for brakes, sanded the tracks, and did everything in my power to stop the train before striking the animals, but this was impossible. Did not see the animals until in the act of going upon the track; was watching the others. Did not sound the whistle for the reason that it is characteristic of mules when frightened thereby to run toward the track. This was a freight train of eight or nine cars, running about eighteen miles an hour. Everything was in good working order. Without air-brakes no engineer on earth could have stopped that train in time to prevent the injury after the animals were seen. It was impossible to stop the train short of two hundred and fifty or three hundred yards. The others ran upon the track, but they were far enough ahead to escape.

The conductor testified, on behalf of defendants, that he was on the train, and when the whistle sounded he rushed to the top; that the brakes were promptly applied, and that he knew the engine was reversed, for he felt the sudden jar.

At the instance of plaintiff the court, in accordance with the statute, instructed the jury that proof of the injury was prima facie evidence of negligence on the part of the servants of the company, and that the burden of proof was upon the defendant to show that the injury was unavoidable.

Other instructions were given for the plaintiff to the effect that defendant was liable if the injury could have been avoided by the exercise of reasonable skill and care; that it was incumbent on the defendant to have skillful and prudent servants; that defendant was liable if the injury was caused by the negligence of its servants; and that the jury was the judge of the credibility of witnesses.

For defendant, the following instructions were given: --

"1. The court instructs the jury...