Bedford v. Louisville, New Orleans & Texas R. R.

Campbell, J., delivered the opinion of the Court. [387] It was wrong to instruct the jury to find for the defendant as to the gray mare, for as to that killing the evidence does not show that everything was done which could and should have been to avoid collision between the mare and the train. The only witness, the engineer, testified that when he saw her running to the railroad he sounded the cattle whistle, and that is all that he claimed to have done. He did not say that was all he could have done properly for the safety of the animal, and the court cannot affirm as matter of law that it was. It may have been, but that is not so apparent as to authorize a direction to find for the defendant. In all else the judgment is affirmed; but as to the action for killing the gray mare, the judgment is reversed and a new trial awarded.