Yazoo & Mississippi Valley Railroad v. Brumfield

64 Miss. 637 | Miss. | 1887

Campbell, J.,

delivered the opinion of the court.

The first instruction for the plaintiffs should not have been given. There is no evidence tending to show that the jumping from the train by the engineer had any influence in producing the death of the mules or that his remaining at his post of duty could have had any influence to avert the collision. The testimony is that everything possible had been done by the engineer to stop the train, and it was after this, and when he could do no more, and saw that a collision was inevitable under circumstances threatening peril to his own life, that he leaped from the engine. Called on to choose between his own safety and that of two mules, he had the right to prefer his own, and if he stood at his post as long as he could do anything effectual toward stopping the’ train, and abandoned it only after having done all he could and when it appeared that his own safety required it, he was not culpable, and this should not be made a ground of recovery against the company. Valuable-as a mule is, a human being is more so in legal contemplation.

Another instruction for the plaintiffs is that if the mules ran along the track and road-bed three hundred and twenty-five yards, and that the engineer could and did see them at a distance of six or seven hundred yards, and that the train could have been stopped before it reached the point of collision with the mules, the finding should be for the plaintiffs. It is not clear what proposition this instruction contains. If it announces merely that the train should have been stopped, if it could be, after the mules got on the track and showed a disposition to keep on it, it is correct. If it contains the proposition that it was the duty of the engineer to stop the train or try to do it as soon as he saw the mules in the neighborhood of the road-bed, it is not correct, and this seems to be the intent of the instruction, for otherwise the distance at which the mules might have been seen was unimportant. It is not the duty of the engineer to stop his train until there is an apparent necessity for it. Ordinarily, the discovery of animals or persons near the road does not require the stopping of the train. That should occur only when it seems to be necessary to avoid collision. Unless appearances reasonably indicate danger of the object going upon the track, an effort to stop is not required, but when existing conditions suggest the danger regard should be had to them, and failure in this will constitute negligence, of all which a jury is to judge under proper directions, and should not be told that as matter of law a failure to stop in three hundred and twenty-five yards or after seeing the mules for six hundred or seven hundred yards was sufficient to carry the verdict.

Reversed and remanded for a new trial.