No. 21904 | Miss. | Oct 15, 1921
delivered the opinion of the court.
The appellee, Hamblin, recovered a judgment for one hundred and seventy-five dollars for a mule killed by the running of one of the appellant’s passenger trains at night, in the country. The mule appeared upon the track with a sack over its head and was struck by the train running at the rate of forty-five miles per hour. The engineer and fireman were the only witnesses who saw the striking of the mule by the train, and their testimony was undisputed at the trial. They both testified to seeing the mule upon the track with the sack over his head, and that the sack had two holes cut in it for the ears of the mule to come through; that they afterwards found the sack on the front part of the engine with blood upon it. The engineer testified that the equipment and appliances of the train were in good order, that the headlight was the standard electric headlight and was in good order, but that by it he could not distinguish as small an object as a mule on the track farther than two hundred and fifty feet ahead of the engine. In other words, the testimony of the engineer is to the effect that the headlight was not sufficient for him to distinguish a mule on the track more.than two hundred and fifty feet away, and that he could not stop his train in that
He testified that as soon as he saw the mule upon the track he made every ¡reasonable effort to prevent the injury, but that it was impossible to avoid the killing of the mule because the train could not be stopped in the short distance after seeing the animal upon the track.
At the conclusion of the testimony the defendant railroad company requested a peremptory instruction to find for it, which was refused by the court, and the case was submitted to the jury, which resulted in a verdict for xhe appellee, and hence this appeal by the railroad company.
The appellant assigns several errors for reversal, but we shall notice only one, and that is whéther the court erred in refusing the peremptory instruction asked by the defendant railroad company.
The record conclusively shows that the mule was upon the track in the country, not in a municipality, when struck, and that the engineer did everything reasonably required of him to prevent the injury after he discovered the animal upon the track. It is also undisputed in the record that the equipment, appliances, and headlight of the train were in good condition and of the proper and standard character. This being true, it seems obvious to us that the railroad company was guilty of no negligence; and therefore the peremptory instruction should have been granted.
But it is contended here by the appellee that the railroad company was guilty of negligence in running its train at the rate of forty-five miles per hour at night with a headlight that was incapable of showing a mule, or any object, on the track at such distance as would enable the engineer to stop his train after seeing the object on the track. And we apprehend that the case below was submitted to
But we think the case before us does not come within the rule announced in the Moore and Nixon Cases, but comes within the rule announced in Y. & M. V. R. R. Co. v. Frazier, 104 Miss. 372" court="Miss." date_filed="1913-03-15" href="https://app.midpage.ai/document/yazoo--mississippi-valley-railroad-v-frazier-7991473?utm_source=webapp" opinion_id="7991473">104 Miss. 372, 60 So. 547" court="Ala. Ct. App." date_filed="1912-11-12" href="https://app.midpage.ai/document/pilcher-v-dothan-mule-co-6521521?utm_source=webapp" opinion_id="6521521">60 So. 547. In the latter case the Moore and Nixon Cases were discussed by the court and a clear differentiation upon the facts was noted, and we do not feel that much can be added by a further discussion of the question in the present case.
It is clear to us that in the Moore Case which was followed by the Nixon Case, the court predicated negligence of the railroad upon the particular facts there involved, namely, that the train was running at an unlawful and dangerous rate of speed within a municipality, through a populous section of the country, on a dark and foggy night. But in the Frazier Case, supra, and the case before us now, the facts are quite different, in that the injury occurred out in the country, at a place where it was not unlawful, nor negligence per se, to run more than six miles per hour. At such a place, night or day, it is not, ordinarily, negligence per se to run at a speed of forty-five miles per hour with proper and standard equipment. We are therefore convinced that the lower court erred in refusing the peremptory instruction asked by the railroad company.
While it is not material to a decision of this case, we have not overlooked, the undisputed testimony of the engineer and fireman with reference to1 the sack that was oil the mule’s head at the time he was struck. It does not appear who it was that cut the ear holes in the sack and fit it over the mule’s head, but it was done evidently for the purpose of blinding the mule for an unworthy motive. It endangers the lives of the persons on the train to strike a large animal on the track, as it sometimes results in derailment of the train. If the animal in this case had been
The judgment of the lower court is reversed and judgment entered here for appellant. '
Reversed, and judgment here for appellant.