Vicksburg & Meridian Railroad v. Hart

61 Miss. 468 | Miss. | 1884

Campbell, C. J.,

delivered the opinion of’ the court.

It wa& error to instruct the jury for the plaintiff that the absence of the brakemen from their posts when the whistle sounded was negligence, and that any negligence entitled the plaintiff to recover, without embracing the idea of a causal connection between their negligence and the destruction of the mule. If brakemen were not at their post of duty, but the killing of the mule could not have been avoided if they had been, their absence would not have made any difference as to the result, and should not have affected it. The third and fourth instructions for the plaintiff were wrong for the reason stated. The evidence strongly suggests the insufficiency of an immediate application of brakes to have prevented the catastrophe. The evidence leaves but little doubt that the train was running at a greater speed than six miles an hour within the corporate limits of Jackson when the mule was killed. If so, the recovery was right, notwithstanding the erroneous instructions on another view of the case. There is the usual conflict between the employees of the appellant and other witnesses as to this, but that the train overtook the mule running from it is conclusive that the speed of the train was greater than six "miles an hour, and sufficient to determine the case in favor of the appellee. We think it improbable that a different result would occur on a new trial, and as the case is before us on appeal from a judgment overruling a motion for a new trial, the

Judgment is affirmed.