Wright v. Illinois Cent. R. Co.

*153 Anderson, J., delivered the opinion of the court. Appellants brought this action, in the circuit court of Grenada County against the appellee, the Illinois Central Railroad Company, to recover damages for the death of six head of cattle, owned by them, alleged to have been negligently killed by means of poison put out by the railroad company. There were two trials. On the first the court directed a verdict and judgment against the railroad company. From that judgment the railroad company appealed, resulting in a judgment of reversal by this court, and a remand of the case for another trial. The court held that it was not a case for a directed verdict, but an issue of fact for the jury. Illinois Cent. R. Co. v. W. N. Wright and D. D. Smith (Miss.), 11 So. (2d) 312. Counsel for the respective parties agree that the evidence on the second trial was substantially the same as that on the first trial. The only error assigned and argued was the giving of four instructions for the railroad company, each so emphasizing the requirement that the case should be made out by “witnesses” as to unduly exclude from the consideration of the jury reasonable inferences to be drawn from the testimony of witnesses. The testimony was without any substantial conflict. The appellants were engaged in the cattle business. In *154 connection therewith they owned an enclosed pasture of about 300 acres of land. The enclosure was by means of a fence, and on the railroad side of the pasture this fence was on the line between it and the railroad right of way. The railroad company destroyed the -grass, weeds and other growth on its right of way, by spraying a poison on it. This was done on Friday of one week. On Wednesday of the next week six of appellants’ cattle were found dead in their pasture. It had rained on Sunday before they were found. They were poisoned with arsenic. There was no evidence as to what poison the railroad company used in spraying its right of way. Three of the cattle were found “near a puddle of water close to the fence on the railroad right of way.” Three were found about 300' yards out in the pasture, away from the puddle of water.' Appellants’ case is that arsenic was used in spraying the right of way, which was washed into the puddle by Sunday’s rain, from which the six head of cattle drank, resulting in their death. The giving of the four instructions complained of simply told the jury that the appellants had to make out their case by the testimony of witnesses, and that the word “witnesses” was thereby so emphasized as to exclude from the jury the consideration of reasonable inferences from their testimony. Along with those instructions the appellants got one in which this language was used: ‘ ‘ The Court instructs the jury for the plaintiffs that if you believe from the preponderance of the evidence, direct or circumstantial evidence, and the reasonable inference to be drawn therefrom, that the defendant acting through its servants, ’ ’ etc. Considering that instruction along with the four in question, the jury could not have been misled. As reasonable men, they knew the court did not confine them to the testimony of eyewitnesses as to every material effect. . Appellants made a motion for a new trial, which was overruled. One of the grounds was that “the verdict of the jury was contrary to the evidence produced in the *155 case.” That ground is neither assigned nor argued as error. But if it had been, it is without merit. The question before the jury was whether or not the railroad company, in poisoning the growth on its right of way, should have reasonably anticipated injury to the appellants’ property. That principle is supported by numerous decisions of our court. We deem it only necessary to quote from the recent ease of Mauney v. Gulf Refining Co., 193 Miss. 421, 8 So. (2d) 249, 9 So. (2d) 780, 781; “The settled law in this state may be summarized in the form of a diagram, as follows: The area in which liability is imposed is that which is within the circle of reasonable foreseeability using the original point at which the negligent act was committed or became operative, and thence looking in every direction as the semidiameters of the circle, and those injuries from which this point could or should have been reasonably foreseen as something likely to happen, are within the field of liability, while those which, although foreseeable, were foreseeable only as remote possibilities, those only slightly probable, are beyond and not within the circle — in all of which time, place and circumstance play their respective and important parts. ’ ’ Ordinarily this court would not raise a question not assigned and argued as error. We depart from that rule in this case because two members of the court think it ought to be done. It is permissible under Rule 6 of the Court (161 Miss. 903, 904, Revised Rules of the Supreme Court of Mississippi), which provides, among other things, that the court “may at its option notice a plain error not assigned or distinctly specified.” From what has been written it is apparent to the majority of the court that there is ample evidence to justify the jury in finding that the railroad company could not have reasonably foreseen injury to appellants’ property, including their cattle. Affirmed.