L. R. & F. S. Railway Co. v. Trotter

Harrison, J. There was no evidence tending to prove that the train was not stopped in a reasonable time after the horses ran upon the track, or that the engineer wilfully ran the horse down, as was assumed in the fifth instruction given for the plaintiff. The great public interests subserved by railroads require and demand dispatch in their business, and that trains be run on time, and prompt and punctual connections made; and to stop or delay a train unnecessarily, would be to fail in the company’s duty to the public. It cannot for a moment be supposed that a train- should always be stopped, or its speed slackened, so soon as stock are discovered to be upon the track. Ordinary prudence and caution require the engineer to promptly endeavor, by blowing the whistle, to drive them •off, but do not require that the train should be stopped, or its speed slackened, where he may reasonably believe that they will leave , the track in time, and there is no cause or reason to suppose there is any risk or danger. 1 Thomp. on Neg., 505, 507; Hot Springs Railroad Company v. Newman, 36 Ark., 607; Cen. Ohio R. R. Co v. Lawrence, 13 Ohio St., 66; Chicago & Miss. R. R. Co. v. Patchin, 16 Ill., 198; T. W. & W. Ry. Co. v. Barlow, 71 Ill., 610; Brother v. Railroad Co., 5 Rich., 55. Had such facts been shown as that the track, between where the horses got on it’ and the culvert, runs on an embankment, or through a cut, from which it might have appeared they could not safely or easily, or would not likely have left the track, the evidence in connection therewith would have tended to prove negligence in the engineer; but alone and without such proof there was nothing to show that the conduct of the engineer was not consistent with the exercise of due and proper care. Though abstract, the instruction was calculated to mislead the jury, by leading them to infer that the evidence tended to establish the facts it hypothetically stated, and should not have given. It was, as stated in the sixth instruction, to sustain the action, not necessary to prove that the engine or cars actually struck the horse ; but this instruction, for the same reason as the other, was also abstract and misleading. The verdict was, we think, not only without evidence to warrant it, but clearly and manifestly against the evidence. The judgment is reversed, and the cause remanded.