46 So. 558 | Miss. | 1908
delivered the opinion of the court.
The animal in this case was killed outside the limits of the town of Prentiss. The declaration in the case is broad enough,, if the evidence supported it, to warrant recovery upon negligence on other grounds than the excessive rate of speed through the town of Prentiss. ,"We say, if the evidence warranted it, because we do not intimate any opinion as to whether the plaintiff was or was not entitled to recovery on any other ground.
The counsel for appellee, however, on this appeal, rests his right to recover exclusively on the fact that the appellant was running its train through the town of Prentiss at more than six miles an hour, and that hence he was entitled to recover on that ground alone, under Code 1906, § 4043. Acting upon that theory, they obtained from the court an instruction in these words: “The court instructs, .for plaintiff, that if you believe from the evidence that the train was running at a greater rate of speed than six miles an hour within and as it crossed the corporate limits of the town of Prentiss, and killed the mare within seventy-five yards of the said corporate line, and that this rate of speed in the corporate limits and with which the train crossed the corporate line was the proximate cause of the killing, your verdict must be for the plaintiff.”
Code 1906, § 4043 is in the following words: “Any railroad company having the right of way may run locomotives and cars by steam through cities, towns and villages, at the rate of six miles an hour and no more; and the company shall be liable for any damages or injury which may be sustained by any one from such locomotive or cars whilst they are running at a greater speed than six miles an hour through any city, town or village. The railroad commission shall have power to fix and prescribe limits in cities, towns and villages in which railroad companies may run locomotives and cars by steam at a greater rate than six miles an hour, and whenever it shall have fixed and prescribed such limits in any city, town or village, this section
Manifestly this statute applies alone to those cases in which the injury is inflicted within the corporate limits, or, to use the language of the statute, whilst a train is running at a greater rate of speed than six miles an hour through a town. The injury cannot be inflicted by a train whilst it is running through a town, if the animal on which the injury is inflicted be struck and killed outside the town. For this reason the instruction is fatally erroneous.
The judgment is reversed, and the case remanded.
Reversed.
