New Orleans, Mobile & Texas Railroad v. Toulmé

| Miss. | Oct 15, 1881

Chaemees, C. J.,

delivered the opinion of the court.

If the animal killed in this case was stricken by the train of the railroad company at all (a question to be presently considered), it is admitted that it took place within the incorporated limits of the city of Bay St. Louis, and that instantly before the collision the train was moving at a greater rate of speed than six miles per hour. It is contended, however, that inasmuch as when the animal was observed the speed was instantly checked, so that at the moment of collision the rate of speed was less than six miles per hour, section 1047 of the Code of 1880, which makes railroad companies liable for all injuries to persons or property done by their trains “ whilst they are running at a greater rate of speed than six miles an hour through any city or town,” does not apply. The argument is that the rate of speed at the actual moment of collision was less than six miles, and that therefore the case does not fall within the statute. This position is not maintainable.

The object of the statute is to compel the companies to confine themselves to such speed within towns and cities that they can readily check their engines upon the sudden appearance of any obstruction. This object would be wholly defeated if the narrow construction contended for were placed upon the law. Railroad companies, in running their trains through incorporated towns, act at their peril in exceeding the speed prescribed, and are liable for all damage resulting from such excess of speed, whether it be done while such speed is maintained or by reason of it having been maintained it has become impossible to check the train in time to avoid collisions.

The defendant’s witnesses testified that the horse injured was not struck by the locomotive at all, but received his injuries by running across the track in front of the engine and hanging his foot in a water-gap, by which his leg was broken without any collision with the engine. Though no eye-witness to the transaction was produced by the plaintiff, the jury were warranted in disbelieving the defendant’s witnesses by the proof made that there were marks of the horse having been dragged along the track by the locomotive for twenty yards or more before the water-gap was reached. Herein the case of Chicago Railroad Co. v. Packwood, ante, 280, differs from this.

Affirmed.