The age-herald., 1898-06-01
HUMOR IN
 A COURT CASE

recently furnished a member of the Texas
 bar the excuse for making a book, was
 strikingy illustrated the other day in a
 case decided by Judge Wilkes of the Ten nessee supreme court. The case was that
 of the Southern Railway company against
 Phillips, which came up from the circuit
 court of James county. The case was
 stated thus: 'In an action to recover dam
 ages for injuries to plaintiffs mare wnne
 on defendants track, it appeared that the
 animal ran on the track in front Of one or defendants engines. that the engineer used
 every effort to compel her to get om the
 track, and finally succeeded, when the ani-
 nal ran onto trestle bridge and was in-
 jured Held, that there was no negligence
 on the part of the railroad company, and
 judgment for plaintiff was reversed.
 Judge Wilkes, in his opinion, reviews the case as presented by an agreed statement of facts and then says that an examina-
 ton of the briefs of attorneys discioses much that is not in the record. Thus the
 counsel for the railroad company "con'
 tends that the mare inflicted the injuries
 upon herself. insisting that the proximate cause of the mare to cross the bridge, when
 
 down the sx-foot embankment,- and been
 safe; that she was guilty of the grossest
 contributory negligence in her efforts to
 cross the bridge, in stepping on the vacant
 spaces between the ties, and not on the
 ties themselves. It is insisted that the
 railroad did all it could to prevent inJury'
 that the fireman approached the animal
 in a quiet, peaceable, undemonstrative
 A1za 1.oct of int
 that it was in January; the weather was
 cold and the fireman could not be ex-
 pected to wade the creeks in order to get
 around the animal and prevent her rom
 crossing the trestle; and besides, such q proceeding would have caused delay, inter- fered with the commerce between the states,
 and exposed the train to be run into front
 or rear, or both, by other trains.
 Ut is argued that common observation
 teaches that d horse will not cross an open
 trestle and that an elephant will not cross
 a bridge, even when it is fioored; and, the
 horse being the most intelligent Of the
 dumb animals, the fireman had right
 to presume it would leave the track down
 the embankment, instead of attempting
 trapeze performance in mdair It Is also
 said by counsel, as an evidence or the nre-
 mans good faith, that when he saw the
 animal cross the first trestle and come 10
 the second and hesitate, he then went en-
 
 going oyer the second one; and it IS m
 sisted that government by injunction In such a case is legitimate and proper.
 ''The counsel for the plaintiff insists.
 however, that the fireman knew that the
 general course of the mare was along the
 track, and that she was frlghteneo, anu common sense dictated that he should get off the track and go around the animal, m stead of following on behind her. Counsel
 say that they do not insist that the nre-
 man should have waded the creek 10 get around the mare, but he should have gotteh
 out to one side and 'shooed her or tue
 hank like a woman shooes her chlckeps
 out of the fower-bed. It is argued by the
 counsel for the plaintiff that when the mare stopped at the trestle and hesitated to cross if she showed good horse sense, ana, II the fireman had shown as much sense as the mare, the accident would not nave happened. . "counsel for the railroad company cite the court to the case of Holder vs. Rall- road company, Il Lea, TIC, as controlling in this case. In that case mule Jumped on the track in front of an approachins train The whistle was sounded, the bell rung, the mule ran along the track Tn front of the train until it reached tres tie, jumped off, and was killed. The train iii the meantime had been stopped The court held the railroad not liable, as the train did not strike the mule, but it killed itself by jumping from fright, and also from the bridge. The consideration of ths case has given the court much concern If has been before the court in consulta- tion more than once, besides being very exhaustively argued at the bar. It is very earnestly impressed upon us that the case in Il Lea is not controlling and that 1t must be distinguished from this case oil several grounds. It insisted that the first
 difference in the two cases is that in the f and in the present case it is a mare But this does not seem to us to present a satisfactory ground of dis tinction, inasmuch as the mare and mule are bound quite closely by ties of consan- guinity.
 "In addition, we are confronted with the case of Richardson vs Duncan, Heisk, 220 in which this court, after mature de- liberation held that mules sire is a horse in the eye of the law, whatever may be the facts. The next difference in the cases is that in this case the mare attempt ed to cross the stream by stepping on the open spaces between the ties. while in the Holder case the mule tried to jump over the stream, bridge and all. In that case the mule was killed. In this the mare went over somewhat disfigured, but still on the track. and ready for another tres tle In that case the plaintiff got no yer dict In this one he did. These appear to be the only features of difference that coun- sel have been able to point out, and they was chasing her down the track. with whis- tie and bell and engine and cars, she stopped at the bridge and refused to cross; but, when the fireman drew near, she ran across the first trestle, and was ready to try the second one if necessary It is not shown there was anything unusual in the appearance of the fireman. Possibly he had on his black clothes, and his face may have been covered with smoke: but this does not appear in the record, and 1t does not appear that he made any demonstra- tions or noise, or struck any unusual at titudes, that would so frighten this animal as to make her cross the bridge, which she refused to do before locomotive.
 "Perversity and a disposition to have their own way seems to be pecullarity of East Tennessee animals It is only a short time since this court had to pass upon the | case of Texas pony that committed sui eide. In that case, since the animal had l been transferred from the plains of Texas | to the mountains of East Tennessee and had not become acclimated, the suicide could be easily explained Lyon vs. Stills, | (97 Tenn. 514; 8 IS. w. Rep, 2S0.) In an other case two hounds, in a fox chase in