Henderson & Mathis v. Hines , 121 Miss. 339 ( 1919 )

Ethridge, J.,

delivered the opinion of the court.

Appellants brought suit against appellee for injury to a- mule, resulting in the necessity of killing the mule, making it a total loss to the plaintiffs; the suit being for two hundred and seventy-five dollars. It appeared -that the appellants were a firm dealing in mules, and they turned a drove of mules, including the one injured, into the pasture of one Fender; a track of the Mississippi Central Railroa,d Company running through this pasture. The mule was injured at night, and Mr. Fender was introduced as a witness for the plaintiffs, and testified that he saw the train and the mules on the evening in question; that, the .mules were running down the railroad track, some being on the track and some lower than the track on the other side; that the mules ran some distance ahead of the train, and no effort was made to stop the train, or to blow the whistle or sound the alarm. It appeared that the track through the pasture was straight, and the mules could have been seen by the engineer if he had kept a lookout. It also appeared from the evidence that there were mule tracks along, the railroad track for some distance, and that the mule in question was found injured in such manner as to indicate that it was struck by the train. The engineer and fireman testified for the appellee, and said that there were no mules upon the track; the engineer saying that he ivas on the lookout, that his train was equipped with an electric headlight by which he could see down the track from a quarter to a half mi'le, and that there were no mules on the track. He said that the fireman called to him that they were about to run into some stock, and that he started ' to slacken his speed, when the mule turned from the track, and he again turned the steam to his engine. The fireman testified that he saw a mule approach the track as though he was going to the track, but that the mule turned and did not go upon the track. There was direct conflict between the testimony of plaintiffs and that of defendant as to whether the mule was upon the track. In this state of the testimony the court granted to the defendant the following instruction ■=:

“The court iiisturcts the jury, for the defendant, that defendant’s engineer wras not required by law to keep a lookout for stock at the place where the mule is alleged to have been struck, and the engineer was required only to exercise reasonable care and diligence to prevent striking the mule after seeing him on the track in a position of danger, and, if the engineer so acted, then your verdict will be for the defendant.”

“The court instructs the jury, for the defendant, that if they believe from' the evidence in this ease that the plaintiffs put their mule into a pasture through which the defendant’s uninclosed tracks passed, then the defendant owed them no duty other than to use reasonable care and caution not to injure plaintiffs’ mule, and if they further believe from the evidence that the defendant’s ag’ents, after seeing plaintiffs’ mule in a place of danger, used reasonable care and caution to prevent striking the mule, then the verdict will be for the defendant, although they may believe that the mule was struck and killed on account thereof. ’ ’

We think it was reversible error to grant these instructions. The mule ivas injured in an inclosed pasture, and there is nothing in the record to show that the mule was a trespasser upon the track. This court has repeatedly held that live stock running, at large were not trespassers in this state, and that.the common law of Eng-land was not applicable to this state in so far as it held stock running at large were trespassers.

In N. O., & G. N. Railroad v. Field, 46 Miss. 573, it was held by the court that owners of cattle may permit them to run at large and to pasture upon uninclosed lands, whether of railroad companies or other owners, and do not thereby incur any responsibility as trespassers. The owner of .cattle cannot be held as a trespasser for his cattle entering a close, unless they have .broken a fence deemed in law sufficient to exclude them. It was likewise held that the railroad company was not bound to fence a track, but that they would he considered as proprietors of ¡property using it for their private gain, but not to be permitted to so use it as to harm or injure others unnecessarily, if to he avoided. The doctrine of reasonable prudence in the operation of its train and the selection of its employees was laid down as the test of the duty on the part of the railroad company. See, also, Newman v. V. & M. Railroad, 64 Miss. 115, 8 So. 172; Scott v. Railroad, 72 Miss. 37, 16, So. 205; Dickerson v. Railroad, 110 Miss. 898, 71 So. 312; Railroad v. Patton, 31 Miss. 156, 66 Am. Dec. 552; Railroad v. Miller, 40 Miss. 45; Railroad v. McNeil, 61 Miss. 434; Cantrell v. Railroad, 69 Miss. 435, 10 So. 580; Railroad v. Morrison, 107 Miss. 300, 65 So. 275; Railroad v. Frazier, 104 Miss. 372, 61 So.547; Howard v. Railroad, 247, 7 So. 216, 19 Am. St. Rep. 302.

In Howard v. L. N., O. & T. Railway, 67 Miss. 147, 7 So. 216, 19 Am. Rep. 302, this court recognized the duty of a railroad company to keep a lookout for cattle, hut held that this duty Avas secondary to the duty of the engineer and fireman to properly operate the engine. The court said:

“The engineer and fireman were both engaged at their duties on the engine, and neither saw the animal on the track. While a lookout should' be kept Avhen running, it is not want of proper care for the servants of the company to give needed attention to their primary duty, which is the operation of the engine; and the the fact that, for a long time, neither the engineer nor fireman was looking out for animals on the track, did not make the company liable for the death of the animal killed. Upon the undisputed facts, the judgment of the law is that the loss of the mare should fall on her owner rather than upon the railroad company, and, as there was nothing to be found by a jury, the court rightly instructed for the defendant.”

In a case note to Harris v. M., K. & T. Railway, 24 L. R. A. (N. S.) 858, it is said: “By the great weight of authority it is held to be the duty of those in charge of locomotives to keep a lookout for live stock on or near the track in order that they may prevent injury thereto; the care required in doing so being a reasonable ordinary care.”

In the case before ns the engineer was not engaged 'in other duties, and it was error to give the instruction above referred to. A different case would be presented in the case of cattle at large in a stock law district, and a different rule would apply. The mule injured in this case was not a trespasser upon the tracks within the legal meaning of that term.

The court also gave, for the defendant, the following instruction:

“The court instructs the jury, for the defendant, that although they may believe from the evidence that the defendant was negligent, still if they further believe from the evidence that the acts of the plaintiffs’ mule in running in front of the defendant’s train contributed to the injury to plaintiffs’ mule, then they may believe the plaintiffs are entitled to recover, if any, in proportion to the injury caused by all of the mules running before the defendant’s locomotive.

Inasmuch as the verdict was for the defendant, the giving of this instruction would not be reversible error; but inasmuch as the cause must be sent back for a new trial, this instruction should not be given. The comparative negligence statute has no application to injury of personal property.

Reversed and remanded.