Hines v. Andrews
124 Miss. 292
Miss.
1920
Check Treatment
W. H. Cook, J.,

delivered the opinion of the court.

Appellee, J. B. Andrews, sued Walker D. Hines, Director General of Bailroads, and the Illinois Central Bail-road Company for the value of a coav killed within'the corporate limits of the town of Courtland by a passenger train of said railroad company, and from a judgment in favor of appellee, defendants appeal.

The facts of the killing of this coav are fully detailed by Leonard ITerron, a Avituess for plaintiff, and by the engineer of the train. Herron testified that the coav was grazing on the east side of the track, and as the train approached she crossed over to the- Avest side, and then turned and ran back onto the track about fifty yards ahead of the train, and ran one hundred and ten yards down the track before she Avas struck by the train; that the cow ivas killed about five hundred yards north of the depot; that the train was running more than thirty miles per hour, and that, after she turned to come on the tra'ck, it was impossible for the engineer to have stopped the train.

*297The engineer testified that he first saw two- cows on the east side of the track, and that they crossed over to the Avest side and passed ont of his sight, and were in a place of safety when they passed out of his sight; that he was keeping a lookout, and did not see the cow any more until she fell off of the pilot of the engine; that she was struck about four hundred yards north of the depot; that the train was running about forty-five miles per hour, and at the time he last saw the cow in a place of safety on the west side of the track he Avas so close to her that there Avas nothing he could have done to prevent striking her Avhen she turned and came back on the track.

The defendants introduced in evidence an order of the Railroad Commission regulating the speed of trains Avithin the corporate limits of the various .municipalities on the line of the Illinois Central Railroad Company in Misssissippi, and especially that portion of the order applicable to the town of Courtland, the said order being as follows:

“It is ordered, in pursuance of the authority conferred on this commission by paragraph' 4043i of the Mississippi Code of 1906, that the Illinois Central Railroad Company and the Yazoo & Mississippi Valley Railroad Company may run their trains at a rate of speed exceeding six miles per hour within the limits of all municipalities hereinafter mentioned, except Avithin the limits hereinafter particularly set forth Avith reference to each of the municipalities :
“Illinois- Central Railroad Company
“ (Louisiana Division)
“Courtland: Over street north of depot.”

It appears from the evidence that the principal business street of the town of Courtland runs just north of and contiguous to the depot, and that this street is the main street of the town and is traveled a great deal, and that several hundred yards further north, and near where the *298cow was killed, there is another street, hut this street is used very little.

At the conclusion of the testimony both sides requested, peremptory instructions, and the court granted the peremptory instruction for plaintiff, and the defendants, appellants, assign as error the granting of plaintiff’s instruction and the refusal of the instruction requested by defendants.

We assume, as stated in the briefs of counsel, that the court granted the peremptory instruction for appellee upon the theory that the order of the Railroad Commission fixing the limits in the town of Courtland within which the railroad company might run its train at a greater rate of speed than six miles per hour is void for uncertainty, and therefore that the train .was running at an unlawful speed at the place where the animal was struck. Counsel for appellee states that—

“The only question in this case is whether the order of the Railroad Commission fixing the limits of the town of Courtland, Mississippi, as ‘across the street north of' depot,’ which is shown by the evidence to be twenty feet wide, is a valid order.”

The street immediately north of the depot is the main thoroughfare of the town and connects the stores on the east and west side of the railroad track; it is a public road leading east and west through the town, and there is a great deal of travel over this street, and it is perfectly manifest that the exception in the order of the Railroad Commission refers to this main thoroughfare, and has no reference to the street which is several hundred yards north of the depot and which is traveled very little. This order of the Railroad Commission is not so uncertain or ambiguous as to render it void, and it follows, therefore, that the six-mile statute had no application at the place where this animal was killed, and it was error to grant the peremptory instruction for plaintff. Under the facts hereinbefore fully detailed we think the peremptory *299instruction requested by tbe defendants should have been granted, and therefore this cause is reversed, and judgment entered here for defendants.

Reversed, and judgment here for defendants.

.... Reversed.