Tyler v. Illinois Central R. R.

| Miss. | Apr 15, 1884

Chalmers, J.,

delivered the opinion of the court.

The railroad company erected a fence on either side of its track for several miles in the neighborhood of Jackson. • For its own convenience it then opened a gap in its fence for the benefit of its employees, and this was well known to all its engineers and conductors, who, nevertheless, continued to' use it as before. The cow of appellant was attracted upon the roadbed by this opening in the fence, and while attempting to get back to the opening was run over and killed by the engine and cars of the appellees. Appellees having proved by the engineer and brakemen the observance of every care and caution practiced by it with regard to cattle generally, sought and obtained from the circuit court an instruction directing the jury to find against the owner of the cow, which was accordingly done. The charge, of course, was based on Paolcwood v. Railroad Co., 59 Miss. 280" court="Miss." date_filed="1881-10-15" href="https://app.midpage.ai/document/chicago-st-louis--new-orleans-railroad-v-packwood-7985663?utm_source=webapp" opinion_id="7985663">59 Miss. 280, in which it was held that when the railroad company has successfully met every presumption of law by proof of the actual occurrences at the time of killing, it was the duty of the jury to find for the defendant. The authority was not applicable in this case. It only applies where the appellant, accepting the responsibility of the law, shows by proof that it has met every requirement which the facts of the case devolved upon it. We cannot say that this was done in the present case. It would seem that the responsibility must be different when the railroad company itself has, by the construction and subsequent opening of its fence, invited the animal into its inclosure and then killed it while attempting to escape. We prefer in all such cases that the jury be allowed to say whether there was or was not negligence in its dealing with the animal, and should they decide that it owed some other and further duty to an animal so confined than to one which had a right of egress unobstructed by any act of the railroad company, we could not say as a matter of law that its decision was wrong.

For the error in granting the instructions mentioned, we reverse the judgment and grant a new trial.