74 Miss. 334 | Miss. | 1896
delivered the opinion of the court.
It is assigned as error in this cause that the court below gave a peremptory instruction to the jury to find for defendant. Counsel for appellee, to sustain that action, present three propositions: (1) The mule was killed in the stock law district of Monroe county, while running at large, and hence a trespasser; and the owner is barred of recovery by contributory negligence. (2) Gross and wilful negligence is not shown. (3) Appellee is not liable, under the proof, in any event. Many authorities are cited to show that before the passage of the stock law, where the court held railroad companies liable for killing stock, stress was laid on the fact that stock was rightfully allowed to run at large, and were not trespassers when on the track. Admitting that the mule was trespassing by being at large, that does not absolve a railroad company from the obligation to exercise reasonable care to avoid injury to it when it is seen by
The judgment of the court below is reversed, and the ca/use remanded.