Roberds v. Mobile & Ohio Railroad

Stockdale, J., delivered the opinion of the court. It is assigned as error in this cause that the court below gave a peremptory instruction to the jury to find for defendant. Counsel for appellee, to sustain that action, present three propositions: (1) The mule was killed in the stock law district of Monroe county, while running at large, and hence a trespasser; and the owner is barred of recovery by contributory negligence. (2) Gross and wilful negligence is not shown. (3) Appellee is not liable, under the proof, in any event. Many authorities are cited to show that before the passage of the stock law, where the court held railroad companies liable for killing stock, stress was laid on the fact that stock was rightfully allowed to run at large, and were not trespassers when on the track. Admitting that the mule was trespassing by being at large, that does not absolve a railroad company from the obligation to exercise reasonable care to avoid injury to it when it is seen by [341] the servants of the company. It was held by this court in Railroad Co. v. Phillips, 64 Miss., 693, that the railroad company was prima facie liable for injuries to Joseph Brantley, inflicted by the running of its cars, whether he was rightfully on the train or not, and that for an injury so inflicted, § 1059, code 1880, was applicable; that a precedent wrong would not excuse the injury. In this case it is admitted that appellee killed the mule by the running of its locomotive and cars, and therefore § 1808, code 1892, makes it prima facie liable for the injury, notwithstanding a precedent wrong. To remove that pri/ma facie liability, defendant, in the court below, introduced witnesses, and plaintiffs below introduced witnesses to sustain the liability. There was, in that trial, evidence tending to show that the injury might have been avoided by the exercise of reasonable care after the animal was seen by the servants of the company; and there were such contradictory statements made by witnesses, and important conflict in the testimony, as required the case, as we think, to be submitted to the jury for its consideration and finding. We think, therefore, that the court erred in granting the peremptory instruction asked by defendant. The judgment of the court below is reversed, and the ca/use remanded.