Ross v. Natchez, Jackson & Columbus Railroad
Ross v. Natchez, Jackson & Columbus Railroad
Opinion of the Court
delivered the opinion of the court.
In view of the testimony of the witness, Collins, tending to show that the mule “ ran down the road-bed about forty yards before being struck,” it should have been left to the jury to say whether the servant of the defendant had exercised the necessary «caution under the circumstances. According to the testimony of the expert, Frost, the “alarm” could have been sounded in two seconds, during which the train would have moved sixty, feet or more, and it may be, if the alarm had been sounded and the brakes applied and the engine reversed, that the mule, which ran one hundred and twenty feet on the road before it was struck, would have escaped.
There was also evidence directed to the effort to contradict the engineer as to there being a “ fog,” which obstructed vision when the mule was struck. In Chicago Railroad Co. v. Packwood, 59 Miss. 280, the case made by the plaintiff, by showing the injury to the property by the locomotive of the defendant, was met and overthrown by the uncontradicted and unquestioned evidence produced by the defendant, that the injury was unavoidable after “the exercise of all necessary care and caution on its part,” and as there was no “ further proof” the defendant was held entitled to a verdict. If this case had closed with the evidence for the defendant it would have been just like the case cited, but the testimony pro
Judgment reversed and cause remanded for a new trial.
Reference
- Full Case Name
- J. B. Ross v. Natchez, Jackson and Columbus Railroad Company
- Status
- Published
- Syllabus
- Railroad Company. Action against for damages. Killing of mule. Evidence. Instruction. Case in judgment. In an action against a railroad company for damages for the killing of a mule, after the plaintiff had made ont a primó, fade case under the statute, the engineer who was running the locomotive that killed the animal testified, for the defendant, that the mule was killed at night when it was very dark and foggy; that he first saw it on the track about forty feet in front of the engine; that the locomotive struck the mule in less than two seconds; that he did not sound the alarm or reverse the engine because he did not have time to do so ; that he could not check the train in time to avert the accident; that he was on a down grade, and at the rate of speed he was running he could not have stopped in less than three hundred yards ; and that there was a trestle just ahead and if the brakes had been ’put on and the engine reversed it would have increased the danger to the train. F., testifying for the defendant, stated that the engineer could have sounded the alarm in two seconds, during which time the train would have moved sixty feet. C. gave testimony for the plaintiff in rebuttal, tending to show that the mule ran down the railroad about forty yards before being struck. And other witnesses gave testimony tending to contradict the engineer as to there being a fog as stated by him. The court instructed the jury to find a verdict for the defendant. Held, that in view of the testimony of, F. and that of the witnesses for the plaintiff in rebuttal, it should have been left to the jury to say whether the defendant had exercised the necessary caution, to avoid the killing of the mule. This case is distinguished from Chicago Eailroad Company v. Packuiood, 59 Miss. 280.