Yazoo & Mississippi Valley Railroad Co. v. Brumfield & Brumfield

• Decision Date: 18 April 1887
• Parties: YAZOO AND MISSISSIPPI VALLEY RAILROAD COMPANY v. BRUMFIELD & BRUMFIELD
• Court: Mississippi Supreme Court

1 So. 905

64 Miss. 637

YAZOO AND MISSISSIPPI VALLEY RAILROAD COMPANY v. BRUMFIELD & BRUMFIELD

Supreme Court of Mississippi

April 18, 1887

APPEAL from the Circuit Court of Yazoo County, HON. T. J. WHARTON Judge.

Brumfield & Brumfield brought this action against the Yazoo and Mississippi Valley Railroad Company to recover the value of two mules killed by the running of its train.

The train was running at a speed of twelve or fifteen miles per hour. It emerged from a deep cut on a down-grade, and, when it had gone a short distance, two mules were seen by the engineer to run toward the track, and, having reached it they began to run down the side of the track in a frightened manner. He immediately reversed his engine, blew the stock alarm, and the brakes were put on. Just before the train reached a trestle the mules got on the track, and one of them was struck and thrown under the wheels of the car and killed and the other ran ahead in the middle of the track and fell through the trestle and was killed. The engineer apprehending danger from the situation, jumped from the engine. The evidence as to the distance the mules ran by the side of the track and then on the track before being struck and the distance from which the mules could have been seen by the engineer was conflicting.

The court instructed the jury for the plaintiffs as follows:

"1. The court instructs the jury that, if they believe from the evidence that at the time the engineer jumped from the train if he had remained at his post of duty the killing of the mules would have been averted by the stopping of the train they will find for the plaintiffs."

Another instruction for the plaintiffs was as follows:

"The court instructs the jury that if the mules ran along the track and on the road-bed for a distance of three hundred and twenty-five yards, and the engineer could and did see the mules at a distance of six hundred or seven hundred yards and the train could have been stopped at any point short of the place where the killing occurred, then the law is for the plaintiffs."

The verdict and the judgment were for the plaintiffs, and the defendant appealed.

Reversed and remanded.

W. P. & J. B. Harris, for the appellant.

1. The first instruction should not have been given. It had relation to a circumstance the effect of which could not even be conjectured. There was no evidence that the engineer at the time he abandoned his engine had left anything undone which would stop the train. The evidence is all the other way, and without a fact or circumstance tending in any degree to support the idea that he had not. The opinion of Wilson is not evidence, it is worse than haphazard. The act of jumping from the engine is immaterial unless it appears that something more could have been done effectually. There was no evidence that the engine went back from its reverse or that the brakes were relaxed, yet the court gravely left it to the jury to decide whether or not they believed it had any effect, a thing impossible for them to decide, there being not a tittle of evidence on which to base a finding on the point, with every reliable fact against the supposition. A court cannot properly deal with such a subject in this mischievous, slipshod way--giving a fact of no value at all the importance which it does not possess.

2. The other objectionable instruction for the plaintiffs lays down the law that if the mules continued by the side of the track for three hundred and twenty-five yards, and were seen from a point six hundred yards from where they were struck, and the train could have been stopped short of the place of killing, the company is liable.

This without regard to the...