Mobile & Ohio R. R. v. Holliday ( 1901 )

CalhooN, J.,

delivered the opinion of the court.

Appellee’s dog had strayed from home, and was in an open prairie in the country, about three-quarters of a mile from appellant’s station, Prairie, on its track, and was killed by its locomotive, which was pulling a freight train. One witness, who saw the killing, says the dog ran about five hundred yards in front of the train before it was run over, while another eyewitness puts the distance about one hundred and fifty yards. There is no dispute that the dog could have gotten off the track any moment. The engineer testified that the train stopped at Prairie station for water; that he had to go up grade from there, and, when starting, he had to see to his lubricators, and other matters pertaining to his machinery, which took ordinarily three or four minutes, or about a mile’s progress, during which his fireman was attending to the fire; and that he never saw the dog. The railroad company asked a peremptory instruction, and the court refused to give it. We think that this court, on the liability of railroad companies for killing dogs, went to the farthest limit in Jones v. Railroad Co., 75 Miss., 970 (23 So. Rep,, 358). In that case it was determined that dogs were property, and that if killed within the limits of a municipal corporation by a train while violating code, § 3546, by running at a greater rate of speed than six miles an hour, liability was incurred, unless the killing would have occurred even if the speed had been at a rate not exceeding six miles an hour. We cannot' hold a railroad company liable for running over a stray dog under the facts in this record. This is the most intelligent of the inferior animals — alert, agile, quick — and might well be supposed to avoid such danger, which cannot be said of horses, mules, horned cattle, or hogs. Besides, there can be no presumption of value, as in case of other classes of animals. The overwhelming majority of dogs have no pecuniary or market value. Especially is this true of wandering, stray dogs, and we cannot take the view that they should be permitted to delay movements along the arteries of commerce. Of course, these observations do not apply where a dog was purposely run down, or where he was seen in such a cut as prevented escape, or where the dbg was seen and the negligence was so gross as to be tantamount to design. In support of our views, we cite Jemison v. Railroad Co., 75 Ga., 446 (58 Am. Rep., 476); Wilson v. Railroad Co., 10 Rich. on Law, 52; Jones v. Bond (C. C.), 40 Fed. Rep., 282. By examining Railway Co. v. Stanfield (Ark.) 40 S. W., 126 (37 L. R. A.), 659, and notes, the curious may get all they want on either side. While the learned circuit judge might well sustain his action by decisions, we prefer the line of authorities in consonance with the foregoing conclusions, and think the peremptory charge for defendant should have been given.

Reversed a/nd rema/nded.