St. L. Etc., Ry. Co. v. Nixon Phillips

Anderson, J.,

delivered the opinion of the court.

The appellees, Nixon & Phillips, brought this action in the circuit court of Union county against appellant, St. Louis & San Francisco Railway Company, for damages for the alleged wrongful killing by appellant of five mules belonging to appellees by means of being struck by a locomotive pulling one of appellant’s freight trains going north between New Albany and Memphis, and recovered a judgment for nine hundred dollars, from which appellant prosecutes this appeal.

The only question argued by the parties is whether or not the court erred in refusing appellant’s request to direct a verdict in its favor. In determining whether a verdict should have been directed by a trial court in any given case, every material fact which the evidence tends to show in favor of the party against whom such a verdict is asked should be taken as established. This court has repeatedly held that that was the governing principle. Applied to this case the question is whether, taking- as true every material fact which the evidence tends to establish in favor of appellee, there was sufficient evidence to go to the jury on the issue of liability?

Appellees were road contractors. They had a road construction camp near appellant’s railroad track, about one mile north of New Albany. As a part of their road construction equipment there were a considerable number of mules. One of appellant’s freight trains, going north about one o’clock at night, ran into several of appellee’s mules, which had gotton out of their inclosure, killing five of them. The train was running about twenty-five miles an hour. The mules, when killed, were in a curve on the railroad track and in a cut. The evidence showed without conflict that at that place, considering the grade of the appellant’s track, the train killing the mules, going at the speed it was, could not have been stopped under a distance of five hundred feet. Appellant’s engineer, operating the engine pulling the train, testified that he was on the lookout up the track and when the mules first appeared in sight they were only about sixty feet ahead of the engine. On the other hand, appellees ’ testimony tended to show that, if appellant’s engineer was on the lookout, as he testified he was, he could have seen the mules ahead for six hundred feet or more.

At. the time the mules were killed, some of appellees’ employees were out with lanterns trying to corral them and drive them back into their inclosure. At least one of them saw, as best could be seen in the nighttime, the collision and the killing of the mules. He was standing at a crossing, which the evidence shows was something like six hundred feet south of the place where the mules were struck. Two witnesses went in the daytime and examined the track from the point where the mules were struck back south for some distance: Their testimony tended to show that, even at night, appellant’s engineer, if on the lookout, could have seen the mules, located where they were when killed, for a distance of five hundred and fifty feet or more. The evidence for- appellee, although not strong, we think, was sufficient to go to the jury. It was a case where the engineer was on the lookout along the track ahead. He testified that it was impossible to stop when the mules appeared on or near the track within the sweep of his vision. On the other hand, appellees’ evidence tended to show that, if the engineer was on the lookout, he must have seen the mules at a distance before he struck them of from five hundred and fifty to six hundred feet or more.

Affirmed.