Windham v. Mobile O.R. Co.

Cook, J.,

delivered the opinion of the court.

The appellant instituted this snit against the Mobile & Ohio Kailroad Company for damages for the death of a horse, alleged to have been caused by the running of one of defendant’s trains, and from a verdict in favor of the defendant this appeal was prosecuted.

For the appellant, there was testimony to the effect that the horse became frightened at the approach of the train, and started running ahead of the train, and between the railroad track and a high embankment; that there was no avenue of escape for the horse, and it ran ahead of the train for about one hundred fifty yards, and until it came to a trestle over a ditch about twenty-five feet deep, and thereupon whirled back in front of the train, and was struck and knocked into this ditch or creek.

For the appellee, the engineer, who was in charge of the train, testified that he was running about ten or twelve miles per hour when he first saw the horse; that he had the train under perfect control, and could have stopped it within forty feet; that the horse was about fifty feet ahead of the train when he first saw it; that in running to the trestle the horse gained on the train; that, when the horse reached the trestle, he went onto the abutment thereof, and jumped over into the ditch or creek; that no part of the train touched the horse; and that he could have easily stopped the train at any time within forty feet.

In this state of the testimony, the court granted the defendant an instruction directing the jury to return a verdict for the defendant, unless they believed from a preponderance of the evidence that the horse was negligently struck and killed by the defendant’s train. Under the proof above detailed, we think the granting of this instruction was reversible error.

The engineer testified that he thought t^e horse would come onto the track when it reached the trestle, and jump into the trestle, and that if it had done so, he would have stopped the train rather than risk the danger to the train of running into the animai caught in the trestle. There was testimony for the appellant that the horse was trapped between the track and a high embankment. If this engineer saw this frightened animal, trapped between the track and an embankment, and running towards the trestle with no avenue of escape ahead, except to go onto the track, or jump into the creek, over which the trestle extended, and he then had his train under perfect control, and could have stopped it within forty feet, and he did nothing to avoid the impending injury to the animal, the jury might well have found, and, in fact, the conclusion is almost inescapable, that he was guilty of negligence in the operation of the train under these circumstances. The instruction complained of limited the right to recovery to any injury inflicted upon the animal by being actually struck by the train, and we think the granting of this instruction, under the facts and circumstances in evidence, was reversible error.

Reversed, and remanded.