Louisville, New Orleans & Texas Railway Co. v. Tate

Campbell, C. J., delivered the opinion of the court. Reluctant as we are to set aside a verdict approved by the-circuit judge, we are so dissatisfied with this one as to feel constrained to do it. There is no real conflict.between the witnesses as to material facts. Doubtless, each told the truth as he understood it, and, if so, the defendant was entitled to a verdict. The plaintiff’s witness testified that the numerous tracks indicated that the mule had “fed along” the road-bed for nearly or quite an hour (which must have been the merest guess, for how many tracks a mule grazing-would make in a given time must be very uncertain, because depending on so many things), and had run down the track from near a trestle to near where it appeared to have been caught and killed. This may be true in all respects, and it does not follow that the testimony of the engineer is not true. The running of the mule may have been some time before the train came near enough for it to be seen. It may have-heard and seen the train in the distance, and run and stopped to gaze, and have been thus engaged when seen by the engineer ; or the running may have been quite independent of the train, and the mule may have come onto the road near where it was caught, which is suggested by the testimony for the plaintiff, to the effect that it came on near where it was struck. It is not improbable that it ran, and got off the road, and went on, and was standing across, as stated by the engineer. No one knows how it was except the engineer, and he testifies as above, and he is uncontradicted, and there-is nothing improbable or unreasonable in his evidence. [351] There is nothing in the testimony to warrant the fourth instruction for the plaintiff, which was aimed at the engineer. In our opinion a new trial should have been granted. Reversed, and remanded.