Mississippi Central R. v. Morrison

Reed, J., delivered the opinion of the court. Appellant assigns as an error the refusal of the trial court to give a peremptory instruction in its favor. On April 15, 1912, at seven p. m., one of appellant’s passenger trains ran into a herd of cattle and killed three. The engineer in charge of the train was the only person [304] who saw the accident. He testified that the train was running at a rate of speed which he estimated to be between twenty-five and thirty miles an hour when he first, saw the cattle; that they were then on the side of the track, which was on a fill, and down near a ditch, and that, he estimated they were about seventy-five or one hundred yards away; that the headlight on the engine appeared to blind them, and they got on the track; that he put on the brakes, sounded the whistle, and did everything he could to avoid striking the animals; that rain had fallen, it was then misting, the tracks were wet, and at the rate of speed he was traveling and the condition of the track he could not stop the train within less than four or five hundred feet; that the train was properly-equipped with all necessary appliances for safe use, and was under control, and that he was on the lookout and saw the cattle as soon as he got around a curve, so they could be seen; and that he did all he could to stop the? train, but could not do so in time to prevent the accident. The testimony of other witnesses was corroborative of that of the engineer, except that the witnesses for the-appellee estimated the distance to be about two hundred yards, rather than one hundred yards, from where the cattle were struck, to the curve. However, there was no-measurement of this .distance, and the testimony of all of the witnesses is based upon estimate only. It is undisputed that the engineer did what he could to prevent the killing of the stock. From the testimony, it appears that the accident was unavoidable. A railroad company, in operating its trains, is only required to use reasonable care to prevent injury to animals on its tracks'; such care “as a discreet man would exercise to avoid injury.” Railroad Co. v. Field, 46 Miss. 573; Railroad Co. v. Wright, 78 Miss. 125, 28 So. 806. From the facts presented in this record, we think the appellant was entitled to the peremptory instruction. We305 do not see in this case negligence on the part of the railroad company. A. & V. R. R. Co. v. Boyles, 37 So. 498; Railroad Co. v. Greaves, 75 Miss. 360, 22 So. 804; Y. & M. V. R. R. Co. v. Frazier, 61 So. 547. Reversed, and judgment here for appellant. Reversed.