Cantrell v. Kansas City, Memphis & Birmingham Railroad

Woods, J., delivered the opinion of the court. The judgment must be reversed, because the instructions— especially two and three — given for the plaintiff below, held the defendant corporation and its servants to a higher degree of accountability than is required by law. If the first instruction was designed to inform the jury that the use of air-brakes, or the employment of a large corps of brakemen on the freight-train in question, would have averted the killing of the mare, perhaps, and that the failure of the defendant to provide air-brakes or a larger corps of brakemen was a failure to do all in the power of the defendant, in the ordinary discharge of its duty, to avert the killing, then it was clearly erroneous. Its language is not free from ambiguity, and, in view of the evidence offered as to the non-use of air-brakes and of numerous brakemen on the train, the jury may have been misled. The second instruction declares that it was the duty of the engineer to ring the bell, and blow the whistle, and reverse the engine, and to do every thing in his power, in the ordinary aud diligent discharge of his duty, to save the life of the animal. This does not state the correct measure of defendant’s accountability in cases where recoveries are sought for injuries done to animals running at large. The rule of diligence for fixing responsibility is said, in Railroad Co. v. Miller, 40 Miss., 45, to impose upon the railroad the exercise, not of the utmost care, in such cases as we are considering, but only such reasonable care, in running its train, as a prudent man, engaged in the same business, would use to prevent injury to, or destruction of, animals. To ring a bell, or blow a whistle, or reverse an engine, or to do any other particular act, may not be required of the railroad company in every case and under all circumstances. The ringing of the bell, in one case, may afford timely warning, and, in another case, it may be an idle, or even mischievous, employment; and this is equally true when applied to the other acts referred to in the instructions, the failure to do [439] which by the defendant is supposed, in the instruction, to be negligence. The court properly refused the peremptory instruction prayed by defendant. There were sharp, and not immaterial, •conflicts in the evidence, and the issue was rightfully held by the court as belonging to the domain of a jury’s determination. Reversed and remanded.