Yazoo & Mississippi Valley Railroad v. Frazier

61 So. 547 | Miss. | 1913

Reed, J.,

delivered the opinion of the conrt.

J. E. Frazier brought suit against the Yazoo & Mississippi Valley Railroad Company to recover the value of a mule hilled by a locomotive on the company’s railroad line, and obtained judgment for the full amount claimed, one hundred and seventy-five dollars. Mr. Frazier made out his prima facie case by showing that the mule was hilled by the running of the railroad company’s locomotive. The railroad company then showed by the testimony of the engineer that at the time the mule was struck the engine was pulling a baggage car and two passenger coaches, and was running at the rate of about twenty miles an hour; that the engineer was in his proper place on the engine, and on the lookout; that the train was properly equipped with all necessary appliances, and was in good working order; that the mule jumped on the track from behind a bank at the end of a cut, between thirty and forty feet ahead of the engine; that immediately upon seeing the mule the engineer applied the air brakes, blew the whistle, and did all that could be done to stop the train and prevent the mule being struck; and that the mule was overtaken by the engine after running ninety feet. It is also shown that the headlight only threw a light for seventy-five yards, and that in going downgrade three hundred feet were required within which to stop the train. The only conflict suggested in the case is that the plaintiff, Mr. Frazier, testified “the train was running up grade when it struck the mule. ’ ’

Appellant assigns as error the refusal of the trial court to grant a peremptory instruction to find for defendant. The question before us is: Did the killing of the mule result from the negligence of the railroad company, or was it an unavoidable accident? There is no real conflict in the testimony in this case. The difference in the testimony relative to the train going up grade or down grade at the time is- not material. The uncontradicted testimony shows that the mule jumped on the track only a short distance, between thirty and forty feet, ahead of the engine, and it is apparent that, no matter whether the train was going down grade or up grade, it was impossible to stop the train within the short distance traveled on the track by the mule. At the outside, this distance was only one hundred and thirty feet. It is proved that the engineer immediately applied the brakes and did all he could to stop the train. There is no testimony in this case to show that there was a want of reasonable skill and care on the part of the engineer, or any other person connected with the company’s train, at the time the mule was killed. On the other hand, it is shown that the train was properly equipped with all necessary appliances for its safe operation, that the engineer was on the lookout and saw the mule as soon as it reached the track, that he promptly used all the means in his power to avoid striking the mule, and that there was no carelessness or negligence on his part.

It seems to us that the killing of the mule was clearly unavoidable. The present case is very similar to that of Railroad Company v. Greaves, 75 Miss. 360, 22 South. 804. In that case it was shown by the testimony of the engineer, in order to meet the prima facie case made by plaintiff, that all the appliances of the train were in proper order, and that it was running at the rate of fifty miles an hour, at night, down a slight grade, when the horses which were killed were seen, about one hundred and fifty feet in front of the engine; that everything which could have been done was done by the servants of the company to prevent the injury. Evidence was also introduced in that case to show that the train was running on an up grade rather than a down grade track at the time of the accident, but this apparent conflict was considered immaterial. The judgment of the court in favor of plaintiff was reversed. Chief Justice Woods, who delivered the opinion of the court, in deciding that a certain instruction stating that it was the duty of the agents of the company to drive animals off the track when they were found thereon, should not have been given, said: “The third instruction for the plaintiff was inapplicable to the developed facts of the case, and was erroneous. Under the •circumstances attendant upon the killing of the horses, as shown by the evidence, it was not the duty of the agents of the company to drive the animals from the track — a feat palpably impossible of accomplishment. In proper cases, where the facts proven show that the danger was seen in time to have avoided doing injury, if reasonable skill and care had been exercised by the railroad’s servants operating and controlling the train, the charge would "be correct; but it was wholly erroneous, and doubtless misleading to the jury, in this case, where the uncontroverted evidence is that the train was running about fifty miles an hour, on a dark night, and the animals only seen about one hundred and fifty feet in front of the locomotive by the engineer, who was on his seat and on the lookout for obstructions on the track. ’ ’

Counsel for appellee contends that the train was being negligently run, because the headlight only threw a light for seventy-five yards, and that it required three hundred feet within which to stop the train, and cites to sustain his contention the case of St. Louis & S. F. R. R. Co. v. Moore, 58 South. 472, 39 L. R. A. (N. S.) 978. We do not ihink the rule stated in that case, to the effect that the inability to stop a train by the use of ordinary means and ■appliances, within the distance in which an obstruction on the track can be seen by the aid of the headlight, amounts to negligence, will apply in this case. It will be noted that in the Moore case the train was running within the limits of an incorporated town when the accident occurred. In the case of Nixon v. Illinois Central R. R. Co., 60 South. 566, in which the rule as stated in the Moore case was referred to, the train was also running in an incorporated town when the deceased was struck. There is a statute in this state (section 4043 Code of 1906) which limits the rate of speed to six miles an hour for the running of a train through cities, towns and villages, and renders the company liable for damages which may be sustained from the operation of trains while they are going at a greater speed. In the Moore case it was also shown that the night was dark and foggy. In rendering the opinion in that case, McLean, J., addressing himself directly to the case before the court for decision, said: “To run at night a railroad train propelled by the powerful and dangerous agency of steam or electricity through an incorporated city or town and in violation of the statute at such a rate of speed as to make it impossible, by the exercise of ordinary care, to stop the train within the distance shown by the glare of the headlight of the engine, must, from the necessities of the case, be regarded and looked upon as reckless conduct. The common law, as contradistinguished from statutory law is nothing more or less than common sense, honestly applied to the practical affairs of life; and it is manifest that to run a train of cars, propelled as aforesaid, at such a dangerous rate of speed, through a populous section of the county, is dangerous in the extreme, well calculated to produce injury, not only te persons on the track, but to the passengers on the train, and may be well characterized as reckless conduct, and such as the law denominates willfulness. ’ ’

It seems clear to us that the court’ in rendering the opinion had in mind the facts of the case then under review, and only intended to decide that the running of a, train at night through an incorporated municipality at a. rate of speed in violation of the statute, and so rapidly that the train could not be stopped within the distance shown by the glare of the headlight, should be deemed such reckless conduct as amounted to negligence. In the case before us, we do not find any violation of the statute regulating the rate of speed nor any reckless running of the train, nor any carelessness on the part of appellant’s servants. The accident did not occur in an incorporated town or city hut in the country. It cannot matter in this case whether the train could have been stopped within the distance of the glare of its headlight for the reason that the mule was seen as soon as it reached the track and was always within the glare of the headlight, and always within the vision of the engineer, who was endeavoring to prevent its injury.

We believe that the peremptory instruction should have been given. The case is therefore reversed, and judgment entered here in favor of appellant.

Reversed.