Yazoo & Mississippi Valley Railroad Co. v. Frazier

• Citation: 104 Miss. 372,61 So. 547
• Decision Date: 14 April 1913
• Docket Number: 15,936
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. FRAZIER
• Court: United States State Supreme Court of Mississippi

61 So. 547

104 Miss. 372

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. FRAZIER

No. 15,936

Supreme Court of Mississippi

April 14, 1913

APPEAL from the circuit court of Holmes county, HON. E. V. HUGHSTON Special Judge.

Suit by J. E. Frazier against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed.

Mayes &amp Longstreet, for appellant.

The first reversible error committed by the trial court was the failure of the court to grant the peremptory instruction in favor of the defendant.

When in an action against a railroad company for killing stock on the track, plaintiff's case rests solely on the statutory presumption of negligence, arising on mere proof of accident and the testimony of defendant's engineer conclusively shows that the acicdent was unavoidable, and it appears that this testimony of the engineer is neither disputed nor unreasonable in itself, the railroad company is entitled to a peremptory instruction in its favor. 75 Miss. 360; 59 Miss. 280; 66 Miss. 3; 67 Miss. 15; 68 Miss. 359; 70 Miss. 348; 74 Miss. 513; 7 So. 321; 9 So. 828; 35 So. 137; 37 So. 498; 39 So. 478.

In the case at bar, the appellee bases his case solely on the statutory presumption of negligence, arising from mere proof of the accident.

The only witness examined on behalf of appellee was the appellee himself, who testified that on the morning of December 9, 1910, he found his mule lying on appellant's right of way, dead, with its back touching the end of the crossties, and with cuts on its hips and with blood in its nostrils; that he examined the railroad track and found mule tracks between the rails, extending for a distance of thirty yards. Further than this, the appellee does not attempt to recount any of the circumstances of the killing.

The engineer then took the stand, as a witness for appellant, and testified that the mule was killed at about eight o'clock at night; that at the time of the accident he was riding in his proper place on the engine, and on the lookout for danger. That this engine was pulling a baggage car, and two passenger coaches and was running about twenty miles an hour when the mule was first seen; that the engine and train were first-class in every respect, and were equipped througout with air brakes and all other safety appliances; that the air brakes and all other appliances were in good condition, and in good working order, and that they worked properly on this occasion; that at the place where this accident occurred, the railroad tracks run through a deep cut; that when he first saw the mule, it was in the act of jumping out onto the track from behind one of the banks of this cut, and about forty feet ahead of the engine; that immediately upon seeing the mule, he did everything that could be done to prevent the accident; he applied the air brakes and blew the whistle three or four times; that that was all that could be done; that after the mule jumped onto the track, it got over to the left-hand side of the tracks, out of his range of vision and he did not see the mule when the blow was struck; that immediately, upon applying the air brakes, the train began to reduce its speed, but that it could not be stopped within less than three hundred feet. This testimony of the engineer is most reasonable, and is not contradicted by the testimony of appellee in a single particular.

The testimony of appellee corroborates the engineer's testimony in a measure, for appellee also testifies that the accident occurred at the cut, and it is appellee's own testimony which furnishes us the information that the north bank of the cut is ten feet high, and the south bank six feet high; that one of the banks is perpendicular, and the other almost perpendicular.

This case is, therefore, brought within the well-understood and firmly established rule which is laid down by this court in the cases cited above, and the peremptory charge should have been granted to the railroad company, since this action was shown to be clearly unavoidable. Because of the failure of the trial court to grant the peremptory instruction in favor of the appellant, this case should be reversed and remanded.

H. H. Elmore for appellee.

The conflict as to the grade of the track is a conflict about a material fact. The mule was forty feet ahead of the engine when first seen and ran ninety feet before being overtaken. The mule was running ninety feet while the train was running one hundred thirty feet. The train by the testimony of the engineer was running twenty miles an hour. The mule was clipping along at about fourteen miles an hour; therefore it will be seen then that with a little more than twenty-five per cent. reduction of the speed, the train could not have caught the mule and surely with that reduction, and the mule going that gait, it could have kept clear of the train long enough for the engineer to stop the train. The plaintiff made out a case of a mule being killed by a train going "up grade. " The defendant defended on a case of a mule being killed by a train going "down grade." When the question arises as to ability to reduce the speed of a moving body over a surface, the fact of the grade is a big fact. Plaintiff had no means of showing what efforts were made by the engineer to stop the train but his land adjoins the railroad where the killing occurred and he could testify as to the grade. The testimony of the plaintiff was accepted by the jury. The defendant should have shown that with this short, light train, it could not have been stopped going "up grade" within one hundred and thirty feet. The defendant should have gone further and should have shown that the speed of the train could not have been reduced going "up grade" to less than fourteen miles an hour. Had it been so reduced it would not have caught the mule where it did. The defendant did not show within what distance this train could have been stopped or slackened while going "up grade."

In R. R. Co. v. Greaves, 75 Miss. 360, there was but one fact in dispute in the case and that was as to the grade of the track. The case was reversed because of erroneous instructions; because, "with this incorrect charge before it, the jury must have felt constrained to find against the railroad," and because, "we fear this charge so far misled the jury as that the evidence was disregarded." In that case a passenger train was running fifty miles an hour when the horses were seen about one hundred and fifty feet in front of the engine and "everything was done that could have been done" to stop. The case was not reversed because the plaintiff was not entitled to go to the jury.

In the Packwood case, 59 Miss. 283: "There was nothing improbable in the story told by the witnesses for the defendant nor was there anything at all inconsistent with it in any fact proved in the case on either side. There was (is) nothing in the record to suggest that the witnesses were unworthy of credit or that the jury in fact disbelieved them."

In such cases as this to entitle the defendant to a peremptory instruction there should be "nothing to suggest a doubt of the accuracy of the testimony of the engineer that he could not have so slackened his speed that the mule could have escaped. R. R. Co. v. Gunn, 68 Miss. 366.

The engineer does not explain why he did not shut off steam. This could have been done in the twinkling of an eye and to ordinary mind would seem to have been the proper thing to do. It is very doubtful if the engineer sounded the whistle at all. If it took him as long to sound it as it took defendant's attorney to make the witness whistle, the engineer was at best a slow operator. The train was being negligently run. That is certain...