The clarion. [volume] (Jackson, Miss.) 1883-1888, 1886-11-24
SUPREME COURT CASES.
Reported FOR The clarioe hs w. r. Harper
Asisrsey sl-lsw. jackson. Mss
october Term-Isso.
WAsaISGroS NEWMAN,

Appeal from the Circuit Court Of Kinds
County. III n. L. j. Wharton, Judge
In 1881. Washington Newman brought
his action against the Nicksourg
Meridian Railroad Company, before
Justice Of the peace 10 recover the value
{ a certain horse alleged 70 have been
killed BY the negligence Of defendant IN
running It's train.
On the trial OF the cause in the Circuit
court, on appeal, tue plaintiff introduced
evidence which tended - show that on
the night If August !, 1881, plaintiff :
horse was waking on defendants track |
at or near certain bridge or trestie IN |
The city Of jackson; that The track at |
that point was laid on an embanf ment
OF steep descent on either side; that a /
nasser ger train moving iaSter than usuai
and laster than SIX miles per nouf
APPROACHED from the west; that the
h,,rsA ran down the track before the
Train antn he reached the bridge, when
he was taken up by the COW catcher OF
The engine aud borne TWO thirds the way
across The bridge; that the train then
stopped and backed from oil the olldge'
and The employees of the :raiu went
forward and threw the horse overheard,
where he vas found the next morning
that no whistle or alarm bell MAS
sounded; and that the horse could have
been seen in time TO have stopped the
train. with the appliances in use.
the defendants introduced evidence
which tended to show that the engineer
saw the horse waking on the track AMI
Immediately put on brakes; that the
tr.,in came to a fuil stop ISL before
reaching the bridge, that the horse IL
MS fright had attempted To run across
The bridge, instead OF going down the
bank as lie might have doue; that he
got cat gat In the bridge as lie was
about lno-tbirds across; hat the EN-
uloyees Of the train, when lt stopped,
Nent 10 The horse and endeevored I"
grt him across and out of the way, bat
iu their efflrts u do SO he Jumped over
aud killed. himself. The tenor " The
instructions given aud refused Is stated
IN tie opinion OF The court.
OpenIpg counsel for the plaintiH IN
the course OF his argument said mulch
Ina, was then am there objected To b.
4, PENDANT, such a., i sly mat parties
with armies OF retaluel have grown To-
such = position that they seem 10 have
been constructed in order that lev
might live and iatten On the arteIlai
blood OF the Com NUDITY, is lt not 4
fact that il has never happened Ia
the history OF jarlsprudence that
railroad employee, however good
man he may be, has ever testified
that he did anything 10 the damage
OF the company III litigation! II
never has happened and never VIII
happen till the latest syllable oil
| recorded time" II know that Old negro
man. Carter, (meaning a witness tor
| pla,ntitf) toid Ihe trutu, aud you know
H." i say that with the " estiDghouse
air brake IN proper condition All engi
neer can stop :. train going twenty miles
| an hour within one hundred feet, there
| being no evidence 10 this effect. 'Il
! that horse had belonged TO that engineer
ne would have been alive to day" The
court ogerruled defendants objections,
but ted The jury to take no notice OF
I statements Of counsel not founded upon
| the evidence before them. the Iury
found Ior the plaintiff, and the deten-
dant appealed.
CooPER, c. J., delivered the opinion OF
the court.
The instructions given 10y the court
properly instructed the jury that il by
negligence of the defendants employees
The horse of the plaintiff was run down
| by the train or driven on the bridge and
| thereby injured, when by the exercise
! of proper care this might have been
avoided, the plaintiff Was entitled 10 a
verdict.
The Instructions asked by the defen
! dsnt End refused by the court were prop
erly refused. 1t may be true that the
horse went upon the bridge as therein
stated, aud WAS billed by falling there
| from. Bat ii he went upon the bridge
TO escape the approaching train negii
gently driven towards him by the ser
wants oil the company. it WAS responsible
| fer the iuJ Try which resulted. Neither
OF the refused instructions contained an
announcement of this proposition, but
tue jnry was informed by them that il
the horse went upon the bridge and was
not struck 10y the engine, the law was
for the defendant. There is nothing IN the
evidence which would have Warranted
the jury in tuding that the ho s Of his
own g0iitlou stray cd ON the brldg-, and
only under such cIrcum- tances could
! the instructions as asked be correct. 1t
| IS true that railroad company Is not
ordinarily liable for injury resulting
| from fl glt uc ;asioued by the running
IT It's Train; but Nheu lis servants are
| informed of the dangerous situation Of
All animal, they mast act with reference
| TO It's known b bits 10 avoiding injury,
| As in this case, the animal was perceived
/ by the servants on the eu1ausment vi
The roa9 Win a bridge in front, comm
prudence requires that the tram b.
stopped both to prevent injury by
actual collision and to avoid sell inflicted
injury resulting from the effort OF the
animal TO escape.
The arguments and remarks of counsel
to which exception was taken dos uot
require reversal Of the judgment
| 4giraaed.
". L. Nngsnt, for appellant.
Calhoon x Green, for appellee.