| Miss. | Oct 15, 1900
delivered the opinion of the court.
Wright sued for damages for the killing of two mules. Only two ivitnesses testified in the case. Miller, the witness for the plaintiff, says that he saw the mules grazing on the right of way, on the side of the track; that the engineer could not have possibly checked the train in time to avoid the killing; and that he did not sound the alarm. This witness saiv the mules grazing thirty or forty feet from the track. Then they ran down the side of the track, and he did not see either one of them Avhen struck by the engine; but the engineer could haA'e seen them for 600 or 700 yards, as they grazed, the road being straight and down grade. The engineer testified that his engine Avas properly equipped, that the mules jumped on the track just in front of his engine, and that it was impossible to prevent the collision.
The court refused a peremptory instruction for defendant, and granted an instruction for plaintiff — that the jury should find for him unless the killing Avas unavoidable. We do not decide as to the propriety of the peremptory instruction, because we need not. To hold the company liable unless the injury was unavoidable is not sustained by reason or authority. Surely a train load of human beings need not be jeopardized to avoid killing a mule. Only reasonable care is required, in such cases; that is, such care as a discreet man would exercise to avoid injury. Railroad Co. v. Field, 46 Miss., 573" court="Miss." date_filed="1872-04-15" href="https://app.midpage.ai/document/new-orleans-jackson--great-northern-railroad-v-field-7984149?utm_source=webapp" opinion_id="7984149">46 Miss., 573. See cases cited in Brame & A. Dig. p. 984, cl. 109. An engineer
Reversed and o'enianded.