Scott v. Yazoo & Mississippi Valley Railroad , 72 Miss. 37 ( 1894 )

Whitfield, J.,

delivered the opinion of the court.

The engineer testified that the mule came on the track from the west side going east, the train going south, going directly across, and was almost immediately struck. This would place his left side broadside the engine; but there was evidence that there was a large hole in his right hip. The engineer testifies that the mule was not more than ten or fifteen feet from the engine when it came on the track — was not going down the track — arid he was almost immediately on it, and struck it. There was testimony that there were mule tracks for nearly two hundred yards down the roadbed to where the mule lay. The engineer testified that he did everything in his power to prevent the accident, and it was impossible to prevent it, but admits that if he had attempted to stop his train at 100 or 150 yards, when he reached “the 150 yards point he would be running very slow;” and there is testimony that, “from the way the mule’s tracks dug up the gravel” in the roadbed, “it was running very fast. ’ ’

Taking both of the last two statements to be true,-is it impossible that the mule could have escaped, if the engineer had attempted to stop bis train within one hundred and fifty yards % There is no controversy over the facts that there were only three mules, and that two went across the track and escaped. Whether the tracks on the roadbed were those of the mule in question, was a question for the jury, as were the other matters of fact arising on this testimony.

Railroad Co. v. Tate, 70 Miss., 348, is readily distinguishable. To approve the peremptory instruction in this case, would be practically to hold that, in cases of this character, in which the employes of railroad companies are often the only eye witnesses, such witnesses cannot be contradicted by circumstantial evidence. It is the province of the jury, as the triers of fact, to ascertain the truth of a case clouded by such conflict in testimony.

Reversed and remanded.