Howard v. Louisville, New Orleans & Texas Ry. Co. , 67 Miss. 247 ( 1889 )

Campbell, J.,

delivered the opinion of the court.

The engineer and fireman were both engaged at their duties on the engine, and neither saw the animal on the track. While a look-out should be kept when running, it is not want of proper care for the servants of the company to give needed attention to their primary duty, which is the operation of the engine; and the fact that, for a short time, neither the engineer nor fireman was looking out for animals on the track did not make the company liable for the death of the animal killed. Upon the undisputed facts, the judgment of the law is that the loss of the mare should fall on her owner rather than upon the railroad company, and, as there was nothing to be found .by a jury, the court rightly instructed for the defendant.

Affirmed.