New Orleans & N. E. R. v. Martin , 126 Miss. 765 ( 1921 )

Anderson, J.,

delivered the opinion of the court.

The appellee, Martin, recovered judgment in the court below against the appellant, New Orleans & Northeastern Bailroad Company, for damages in the sum of seventy dollars and costs of the case, from which the appellant prosecutes this appeal. The suit was for the value of a cow, the property of appellee, which is claimed to have been killed by the appellant through the negligent running of one of its freight trains. The only assignment of error is that the court below ought to have directed a verdict for the appellant, an instruction to that effect having been asked by the appellant and refused by the court. There is no conflict in the evidence as to how the killing of the cow took place. It occurred three-fifths of a mile by actual measurement north of the north line of the corporate limits of the village of Pachuta. The cow was struck and run over by a freight train going north consisting of fifty-one cars and drawn by two engines, commonly known as a “double header.” The only eyewitness was the engineer in charge, of the front engine who controlled the running of the train, including the sounding of its cattle alarm and the application of its brakes. He testified that the train with the two engines was about twenty-one hundred feet in length; that from near the north line of the corporate limits of the village of Pachuta for some distance north the track was straight and downgrade; that from this point back some distance south through the village of Pachuta it was downgrade ; that therefore the point referred to, a short distance north of the north line of the corporate limits of the village, was a hill or elevation looking both north and south; that on reaching a point somewhere about this elevation, while running about twenty-five miles an hour, he saw the cow about a quarter of a mile ahead crossing the track from west to east; that he neither sounded the stock alarm nor applied the brakes because, judging from appearances, the cow would reach a place of safety before the train could get to the point where she was; that she did pass over the track to the east to a point outside of the sweep of the train and to a place of safety and appeared to be starting down the hill, but when the front part of the train was within one hundred to one hundred and fifty feet of her she suddenly turned around and started back to the west side of the track but failed to get out of the way of the engine, the west side of which struck and killed her; that as soon as he observed that the cow had turned to'go back, to avoid striking her he sounded the stock alarm and applied the brakes, but almost the entire length of the train passed over the cow before it could be stopped. He testified that even from where he first saw the cow, about a quarter of a mile away, it would have been impossible for him to have stopped the train before striking her, the truth of which was demonstrated by the fact that in making the stop that was made the train ran about its full length— about two thousand feet — after the application of the brakes. He showed by his evidence that the train was properly equipped and manned and everything was done that could have been done to avoid the injury.

The engineer showed by his evidence that the speed of the train in passing through the municipality of Pachuta was probably as much as twenty miles an hour; that therefore in running through it the speed statute was violated.

It has been determined by numerous decisions of this court that in operating its trains a railroad company is only required to exercise reasonable care to avoid injury to stock on or near its track after discovering their position of peril; it is not required to do everything possible to avoid the injury; that the standard of action of the average man under the circumstances is the criterion; that in the operation of its trains it does not have to check their speed until there is a reasonable apprehension that such stock will go on the track; and that if the evidence shows without conflict that the injury complained of could not have been avoided by the exercise of reasonable care, then it is the duty of the court to instruct the jury to find for the railroad company. Hines, Director General, v. Andrews, 124 Miss. 292, 86 So. 801; Hines, Director General, v. Thompson, 123 Miss. 634, 86 So. 450; Railroad Co. v. Morrison, 107 Miss. 300, 65 So. 275; Railroad Co. v. Jones, 111 Miss. 159, 71 So. 309;.Railroad Co. v. Frazier, 104 Miss. 372. 61 So. 547; Railroad Co. v. Wright, 78 Miss. 125, 28 So. 806; Railroad Co. v. Whittington, 74 Miss. 410, 21 So. 249; Railroad Co. v. Bourgeois, 66 Miss. 3, 5 So. 629, 14 Am. St. Rep. 534; Railroad Co. v. Brumfield, 64 Miss. 637, 1 So. 905.

We are unable to find from the evidence in the record that the employees in charge of this train failed to do anything they could have reasonably done to avoid the killing of the cow. There is nothing in the physical facts surrounding the injury which throws any doubt whatever on the testimony of the engineer, the only eyewitness.

It is contended, however, if this train had not been run through the municipality of Pachuta at an unlawful rate of speed that the engineer, when he first observed the cow, would have had the train under such control that lie could have stopped it before striking the cow. In other words, it is contended that the unlaAvful speed through the municipality was the proximate cause of the injury. The speed statute, section 4043, Code of 1906, Hemingway’s Code, section 6667, prescribes the speed limit of trains “within” cities, towns, and villages, not without. And its object is to prevent injuries to persons and property situated “within” the limits of municipalities, and not persons and property situated without such limits.

It was held by this court in Mississippi Central Railroad Co. v. Butler, 93 Miss. 654, 46 So. 558, that this statute had uo application when the injury was inflicted outside of the municipal limits,'although the train just before inflicting the., injury had been running within such limits at greater speed than the statutory rate. To the same effect is Hines, Director General, v. Moore, 124 Miss. 500, 87 So. 1. It would be a matter of too 'much speculation as to what would or would not have happene 1 if the train ' question had not violated the speed statute. It might have reached the point where the cow was killed, say, two or three minutes later than it did, running at a speed of not more than sis miles an hour, and still the cow might have been found on the track and killed by the train without any fault on the part of the employees operating it.

The court below should have directed a verdict for the appellant.

Reversed, and judgment here for appellant.