Young v. Illinois Central Railroad , 88 Miss. 446 ( 1906 )

Calhoon, J.,

delivered the opinion of the court.

The animal was killed at a public road crossing by an engine of the appellee at night. Since it was done by the running of the locomotive, this fact made out a -prima facie case of want of reasonable care on the part of the railroad company (Code 1892, § 1808), and the burden was on it to show the contrary. To relieve of this burden the engineer testified that he was running with due lookout at thirty miles an hour; that the crossing is in a cut eight to ten feet deep; that when he first saw the mule it was within twenty or thirty feet of the engine, and within six feet of the track; that it walked on the track, was struck in the head- and killed; that he whistled for the crossing; that the fireman rang the bell until the road was crossed; and that the killing was unavoidable. The fireman testified that he was on the left side of the engine, never saw the mule nor the killing of it, and he does not say whether he did or did not ring the bell or blow the -whistle.

On behalf of appellant there was evidence, in contradiction, that on the side the mule was the cut did not obstruct the view, and that the bell did not ring nor the whistle blow. One witness was not permitted to testify about this, which is error. Code 1892, § 3547, requiring continuous whistling or ringing for three hundred yards before reaching the highway crossing, is for the protection of animals as well as persons, and it was for the jury to say whether this precaution was used, and whether, if observed, the accident might have been prevented, and whether a proper lookout was in fact kept. The peremptory instruction was improper.

Reversed and remanded