Yazoo & Mississippi Valley Railroad Co. v. Wright

• Decision Date: 29 October 1900
• Citation: 28 So. 806,78 Miss. 125
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. ABEL P. WRIGHT
• Court: Mississippi Supreme Court

28 So. 806

78 Miss. 125

YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. ABEL P. WRIGHT

Supreme Court of Mississippi

October 29, 1900

October 1900

FROM the circuit court of Washington county HON. FRANK A MONTGOMERY, Judge.

Wright the appellee, was the plaintiff in the court below; the railroad company, appellant, was defendant there. The plaintiff obtained judgment in the court below, and defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

Mayes & Harris, for appellant.

It has been settled by this court beyond any sort of controversy that it is not the duty of those operating a train to stop it or to check its speed for animals seen grazing on the side of the track, unless something indicates that the animals will go on the track. Railroad Co. v. Whittington, 74 Miss. 410; Railroad Co. v. Brumfield, 64 Miss. 637; Railroad Co. v. Thornton, 65 Miss. 256.

Defendant asked a peremptory instruction, and it was refused. It should have been given. There is no need for the indulgence of any presumptions of negligence in this case, because the facts are before the court, and the plaintiff's own witness has testified, in direct examination, that it was absolutely impossible for the engineer to stop the train, and on cross-examination he shows that these animals were on the side of the track, grazing, thirty or forty feet from the track, and they were running down the track, parallel with the track. The engineer says he did not see them until they ran up on the track almost immediately in front of the engine, and that, at the rate of speed at which he was going, it was impossible to stop the train.

But if we are mistaken in the foregoing, this suit must certainly be reversed for the error of the court in giving the instructions asked for the plaintiff. There is certainly no law in this state to support such an instruction. The jury is instructed to find for the plaintiff, unless they believe from the evidence that the collision with the mules was unavoidable. It is hardly necessary for us to cite authorities to this court to the point that all that is required of a railroad company in regard to stock on the track is to exercise ordinary care to avoid injury. To hold that the company is liable unless the injury is unavoidable, would be to require a degree of care which is not imposed upon the company even in the case of passengers. The statute in reference to injuries inflicted by the running of trains only requires reasonable care.

No counsel appeared for the appellee.

Argued orally by J. B. Harris, for the appellant.

OPINION

CALHOON, J.

Wright sued for damages for the killing of two mules. Only two witnesses testified in the case. Miller, the...