Mobile & Ohio Railroad v. Holt

Chalmers, J., delivered the opinion of the court. This was the usual controversy between the incorporators of a railroad company and the owner of a cow, followed, we may add, by the usual result of a verdict against the railroad. This verdict the railroad company asks us to reverse upon the ground laid down in Packwood’s Case, 59 Miss. 280, that by its testimony it has entirely rebutted all imputations of negligence and thus established its right to a reversal. In the case referred to, the facts were wholly unknown to the plaintiff, and we held that where [173] the statutory imputation of negligence was thoroughly rebutted by proof of the facts attending the killing and there was nothing to-suggest falsity in the statement, a verdict must follow for the defendant on the well-known ground that there had been a confession of the statutory imputation of negligence and a complete avoidance-by the facts. Here, on the contrary, the facts were patent to all and were completely proved by both sides. Conceding the truth of all the proof made by the plaintiff, no imputation of negligence was cast upon the railroad; but, turning to the facts as proved by the railroad,, a case was established from which the jury were authorized to infer negligence if they so believed. It is shown that a number of cattle-grazing upon the track were suddenly dispersed and scattered by the seasonable sounding of a whistle. When dispersed, the cattle-scattered in different directions, all save one going to the western and unobstructed side. The cow in dispute alone went to the eastern side, where, at a distance of eighteen feet, a wire fence presented an impassable barrier. She ran down the side of the track a considerable distance, but finally turned across it and was killed while attempting to get to the other side. The train took off its brakes, and thei’eafter pursued its course unobstructed without checking its speed, as soon as the cattle had left the track. Should it, under the circumstances, have foreseen that the natural instincts of the terrified brute would necessarily impel it to seek the other and unobstructed s;ide where all its companions were, and was its-whole duty done when it ran on without reference to the cow thus-closely pursued? W.e camot say that the law makes any rule on the-subject. It was peculiarly a question of common sense and common experience, and as such we are content to leave it to the jury, who-seem to have been correctly instructed. The jury have answered the question in favor of the plaintiff and we cannot interfere. Affirmed.