Illinois Central Railroad v. Greaves

delivered the opinion of the court.

The third instruction for the plaintiff was inapplicable to the developed facts of the case, and was erroneous. Under the *363circumstances 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 with 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. With this incorrect charge before it, the jury must have felt constrained to find against the railroad.

The succeeding instruction, also numbered 3 in the transcript, was likewise erroneous. It is true that matters within the common knowledge of mankind do not require proof; but what matters of. that character were found in the case as made ? What matters of common knowledge were there in this case which called for this instruction ? Surely it was not intended thereby to authorize the jury to themselves discredit the evidence of Lilly, the engineer, by saying, .one to another, that it is a matter of common knowledge that there is an up grade where the injury was done; that it is a matter of common knowledge that a horse can be seen more than one hundred and fifty feet away by one on a train running fifty miles an hour, and on a dark night, and that it is, also, matter of common knowledge that, under such conditions, the animals could have outrun the train for a short time, and would have escaped if all proper efforts had been made to stop the train, and that a train running as this particular one unquestionably was might have been slowed down enough to permit the escape of the horses. None of these matters are to be assumed as of common knowledge, and without evidence. If there was any matter of *364common knowledge which the jury was called upon to consider in the determination of the case, the attention of the jury should have been called thereto;' but no such matter has been discovered by us, nor has counsel who drew the charge assisted us by pointing it out to us. We fear this charge so far misled the jury as that the evidence was disregarded and the issue determined by common knowledge.

Reversed and remanded