Lowe v. Alabama & Vicksburg Railway Co.

81 Miss. 9 | Miss. | 1902

Calhoon, I.,

delivered the opinion of the court.

This case does not fall within the provisions of code, 1892, § 1808, in reference to injuries “inflicted by the running of locomotives or cars.” The horse was not killed by such running, but was off the track, and, from fright, left its path of safety, fell in a ditch, and broke its neck — a curious result, which no one could have foreseen or reasonably apprehended. Illinois, etc., R. R. Co. v. Weathersby, 63 Miss., 581; New Orleans, etc., R. R. Co. v. Thornton, 65 Miss., 256; Mobile, etc., R. R. Co. v. Holt, 62 Miss., 170.

Since code, § 1808, cannot be invoked by the plaintiff, the burden of'proof was on her to show willfulness, wantonness, or lack of such reasonable care on the part of the engineer as the. position of the horse apparently demanded to prevent obvious danger. This, we think, she has not done. The horse was at the foot of an embankment, ten or twelve feet below the moving engine, and in a perfectly safe pathway, with a safe egress, when the steam was emitted. It cannot be assumed, and especially in the face of evidence to the contrary, that the emission had reference to the animal. It is not even shown that the ditch was of such dimensions as to indicate danger. The cul de sac cases have no Bearing, because here there was a plain-mode of escape, and the killing was not done on the track. Surely a railroad cannot be held liable fox emitting steam in the usual management of an engine Because it frightened a horse ten feet below, from which fright it jumped in a ditch and broke its neck.

Affirmed.