Barnes v. Mobile & O. R.

Sykes, P. J., delivered, the opinion of the court. This is a suit instituted in the circuit court by appellant (plaintiff) for the value of a horse and mule alleged .to have been negligently killed by a running train of the appellee (defendant) railroad company; At the conclusion of all of the testimony a peremptory instruction was given the appellee (defendant), from which judgment of the court this appeal is prosecuted. The testimony for the appellant is, in effect, as follows: One Sunday' afternoon in April he discovered that his stock, about twelve head in number, had gotten out of his pasture, probably through an open gate. This pasture adjoins the railroad right of way, Avhich is fenced. He failed to find his stock before dark, went home, procured a lantern, and started again in search of them. While near the railroad track, he saw a freight train coming. He heard this train sound a stock alarm for probably tAventy or thirty seconds; that the train made no effort to check its speed. After the train passed he found ten head of his stock not injured and a horse and mule killed. He found at a crossing a lot of stock tracks. From this point he traced the tracks made by a horse and a mule which indicated that they were running to the places where the animals were killed. It was nine and one-half steel rails to Avhere the mule was killed and fourteen rails to where the mare was killed. These rails are thirty-three feet long. He did not go above the crossing. Another witness for the plaintiff testified that he, at his home, also heard the engine sound the cattle alarm and also saw the train; that it made no effort to check its speed; that the next day he examined the railroad track and found the tracks where the animals first began to run, and this place was at the south end .of a trestle; that from this point the evidence indicated that the mule ran eighteen steel rails and. the mare twenty-four. All witnesses testified that the track is straight for at least a mile. [319] The engineer testified that his- train was running twenty-five or thirty miles an hour; that he was on the lookout; that by his headlight that night he could have seen stock on the track one hundred or two hundred feet before he reached them; that his attention was called to a bunch of stock near the track at that crossing by the brakeman; that the stock were then coming toward the track from the east side; that he did not have time to do anything except apply his stock alarm; that the stock scattered — some went on one side of the track, and some on the other; that he thought his engine hit the horse and mule about the same time; that he could have stopped his train within five hundred or eight hundred feet. We think the learned circuit judge was in error in granting the peremptory instruction. The testimony of the engineer and the physical facts are contradictory. The engineer testified that he could have discovered the stock on the track one hundred or two hundred feet away; that they all approached the track at that crossing. The testimony of a witness for the plaintiff is that two animals started running at the trestle, which is about two hundred fifty or three hundred feet north of the crossing. The track was perfectly straight. If the engineer was on the lookout, as he testified he was, and the stock started to running at the trestle, it was a question for the jury to say whether he saw them before this crossing was reached. Again, the engineer testified that they came on the track at the crossing about sixty feet in front of the engine and were struck almost immediately. The tracks, however, show that the mule ran about three hundred feet from the crossing to the place where it was killed, and the mare over four hundred fifty feet. The engineer testified he could have stopped the train within five hundred or eight hundred feet, but that he could have checked his train much sooner. In short, from the plaintiff’s testimony the jury could have believed that the mule ran five hundred ninety-four feet in front of the train and the horse seven hundred [320] ninety-four; that the engineer was on the lookout and saw this stock running on the track, but did nothing except sound the stock alarm; that he made no effort whatever to stop or check his train; that by applying his brakes he could have either stopped the train before hitting the stock or checked it to such an extent that both the horse and mule ivould have escaped; and that he failed to exercise reasonable care in trying to stop the train when he discovered the animals on the track. The facts in this case are quite similar to those in the cases of Scott v. Railroad Co., 72 Miss. 39, 16 So. 205, and Dickerson v. Railroad Co., 110 Miss. 898, 71 So. 312. ' In the operation of its trains, the employees of a railroad company are required to exercise reasonable care to avoid injury to stock upon its track when their position of peril is discovered. These employees- are not required to do everything possible to avoid the injury, but only to exercise reasonable care; and in this case the question of whether or not, under these conflicting circumstances, this reasonable care was exercised, is a question of fact to- be decided .by the jury. Reversed and remanded.