Alabama & Vicksburg Railway Co. v. Moore ( 1902 )

Terral, J.,

delivered the opinion of the court.

The chief contention of appellant is that it should have had a peremptory instruction upon the trial in the circuit court. The horse of appellee was killed by running into a trestle on the Alabama & Vicksburg Nailway track at a point just west of Fairchild’s sawmill. The road in the vicinity of the mill is fenced east and west. The mill is situated on the north side of the track, and along that side of the track from where the horse was found and purshed to the trestle, where it was killed, there was much lumber piled. The record recites that the north side of the track “was filled with lumber;” and on the south side of the track there was a big ditch, in which there was water. The appellant’s inspector of cross-ties was traveling upon his railway bicycle along the track in pursuit of his duty, and at the sawmill and between 150 and 300 feet east of the trestle, encountered the appellee’s horse grazing upon the south side of the track; and the horse, apparently much frightened by the bicycle, ran down the track on the outside of the rails toward the trestle, closely pursued by the bicycle, and ran upon tbe trestle and fell therefrom, and received the injuries of which it died.

The leading question in the case is whether the appellant’s tie inspector, under the circumstances in evidence, acted with reasonable prudence in pursuing the frightened horse to his death, and the subsidiary one, whether the question is resolvable as a matter of law or whether it should have been left to the jury, as it was by the learned circuit judge. With one side of the railroad track filled with lumber, and egress on the other side obstructed by a ditch in which was water, it was, we think, a question for the decision of the jury whether Moncure should have stopped his bicycle in order that the horse might have had an opportunity to escape from its dangerous environment. The question as to the reasonable care and prudence on the part of Moncure was one for the jury, and we see no reason to doubt the propriety of its finding. Tyler v. Illinois, etc., R. R. Co., 61 Miss., 445; Newman v. Vicksburg, etc., R. R. Co., 64 Miss., 115; Mobile, etc., R. R. Co. v. Holt, 62 Miss., 170.

Affirmed.