Mobile, Jackson & Kansas City Railroad v. Kea

Reed, J., delivered the opinion of the court. Appellee recovered judgment against appellant for the value of a mare. The animal was not struck by a train of appellant, but was injured by running into and falling from a trestle on the roadway. This case was before the court on a former appeal. Railroad Co. v. Kea, 96 Miss. 195, 50 So. 628. It was then decided that section 1985 of the Code of 1906, which raises the presumption of negligence, has no application to the case, ‘ ‘ as the mare was not struck or injured by the running of a train.” On this appeal it is again contended that the peremptory instruction to find for appellant should have been given. . It was necessary for appellee to prove that the injury to the animal resulted from some negligence by the appellant. Reasonable care and prudence only is required of a railroad company in the running of its trains so as to avoid injury to animals on its track. The mare, accompanied by her colt, was seen, immediately before the injury, feeding just outside the right of way. When they were seen by the engineer, they were near the track and about four hundred yards distant from the trestle. The track was downgrade, and the engineer got his train under control and blew the cattle alarm whistle. The animals began running on the right of way and along the track, at first going through borrow pits. These borrow pits — that is, depressions formed by the taking or borrowing, of earth to build the railroad embankment — were from eight to fifteen feet in width, and were at the point where the animals were first seen shallow, but became deeper as they neared the trestle and the embankment was higher. After running in the pits or depressions for a distance, the animals got upon level ground and continued to run. Then they went on the track, and ran on down to the trestle, which the mare attempted to cross, [393] and jumped or fell therefrom. The train was about two hundred yards from the animals when first noticed by the witnesses. The train slowed up, and was. brought to a stand some thirty or forty yards — say at least one hundred feet — from the trestle, and at least one hundred and twenty-five feet from where the mare went off the trestle. The right of way was not fenced. It appears from, the evidence that brush and logs from the clearing of the right of way several years prior were piled along the right of way. There was an opening about where the animals entered the right of way, and one or more openings along the way to the trestle. It is not shown that an'impassable obstruction was caused by the accumulation of the logs and brush. The borrow pits were separated one from the other by a strip of earth left level with the general surface over which the animals could have gone. The right of way was fifty feet wide on the side where the animals were running, and they could have gone out of the borrow pits on the side opposite to the roadway. From the right of way outside of the embankment it was only five feet to the water, or bottom of the creek or slough over which the trestle extended, and the bank was not entirely perpendicular. The recovery in this case is based upon the theory that the injury resulted from the animal’s being frightened at the approaching train. But in order to recover it was incumbent up'on appellee to show that the injury was caused by the negligence of the company’s servants. Appellant has failed in this. The engineer was not'required to stop merely because he saw the animals near the track and running along it. He is only required to do what is reasonable and prudent under the circumstances. It is in evidence that the train was properly equipped and that the employees were competent. The train was brought under control, and actually brought to a stop, quite a distance from where the animal was injured. Considering all the facts and circumstances of this case, we do not see [394] that the servant of appellant, the engineer, failed to do all that was required of him as a man of ordinary prudence. The peremptory instruction to find .for appellant should have been given. Reversed, and judgment here for.appellant. Reversed.