Ross v. Natchez, Jackson & Columbus Railroad , 62 Miss. 23 ( 1884 )

Campbell, C. J.,

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 produced inconsistent with the case made by the evidence of the defendant distinguishes this case from the former. It was erroneous to instruct the jury to find for the defendant.

Judgment reversed and cause remanded for a new trial.