Mobile & Ohio R. R. v. Gunn , 68 Miss. 366 ( 1890 )

Campbell, J.,

delivered the opinion of the court.

In Y. & M. V. R. R. Co. v. Smith, ante, p. 359, there was nothing to suggest a doubt of the accuracy of the testimony of the engineer that the animal came on to the track just in front of the train in rapid motion, and was unavoidably killed, and we held that the verdict should have been for the ¡defendant, following Railroad Co. v. Packwood, 59 Miss. 280, and like cases. In this case, while the engineer testified that the killing was unavoidable, and without fault on the part of the train men, there are facts, admitted by him, and testified to by others^ which make the correctness of his opinion fairly disputable. No importance is attached to the discrepancy between witnesses as to the time of day when the killing occurred, or the presence or absence of fog, for the engineer saw the mule come on the track seventy-five or one hundred yards.in front of his train. The mule ran some three hundred yards on the track before being overtaken, and as the speed of the train was twenty or twenty-two miles an hour, and the mule may be supposed to have run half as fast, there was ground for the jury to conclude that whatever he thought and testified about it, the engineer did not in fact do all that might and should have been done to stop the train or slacken its speed, or else the mule would have escaped.

It cannot be said that the verdict is manifestly wrong, anc], the judgment is

Affirmed.