The Minneapolis journal., 1901-04-13
A HUMOROUS MAGISTRATE
Findings of Judge Tennessee Who Ought Be Writing Funny
Books Instead of Splitting Hairs.

waters of the creek How this is we cannot
tell.
Case of a Mule.
Counsel for the railroad company cite the
court to the case of Holder VS.. Railroad Co.,
IL Lea, 176, as controlling in this case. In
that case a mule jumped on the track in
front Of an approaching train. The whistle
sounded, the bell rung, the mule ran along
the track in front of the train until it reached
a trestle, jumped off and was killed. The
train in the meantime had been stopped. The
court held the railroad not liable, as the
train did not strike the mule but it killed
itself from jumping from fright, and also
from the bridge. The consideration of this
case has given the court much concern. 1t
has been before the court in consultation
more than once, besides being very exhaus-
lively argued at the bar 1t is earnestly i'm
pressed upon us that the case in Lea II is
not controlling, and that 1t must be distin-
guished from this case on several grounds.
1t is insisted that the first difference in
the two cases is that in that case it was q
mule, and in the present case it is mare.
But this does not seem to US to present a
satisfactory ground of distinction, inasmuch
as the mare and mule are bound quite closely
by ties Of consanguinity. In addition we are
confronted with the case of Richardson VS..
Duncan, Heisk, 220, in which this court
after a mature deliberation, held that a
AuulS sire Is d horse III In6 eye Oh tue law
whatever may be the facts. The next diff
ference in the cases is that in this case the
mare attempted to cross the stream by step
ping 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. s
Mare Was Only Disfgured.
In this the mare went over somewhat dis
figured, but still on the track, and ready
for another trestle. In that case the plain
tiff got no verdict In this one he did. These
appear, to be the only features of difference
that counsel have been able to point out,
and they are not entirely satisfactory to the
court. The court finds it very difficult to ex-
plain the conduct of this mare. When the
train was chasing her down the track, with
whistle 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. 1t is not shown
that there was anything unusual in the ap-
pearance of the fireman. Possible he had on
his black clothes and his face may have been
covered with smoke, but this does not ap-
pear in the record, and it does not appear
that he made any demonstrations or noise
or struck any unusual attitudes that would
so frighten this animal as to make her cross
the bridge which she refused to do before a
| locomotive. Perversty and a disposition to
have their own way seems to be a popularity
of East Tennessee animals
1t Is only short time since this court had
| to pass upon the case of Texas pony that
committed suicide In that case since the
! animal had been transferred from the plains
of Texas to the mountains OF East Tennes-
see and had not become acclimated the sui
eide could be easily explained. Lyon VS..
Stills, 81 Tenn. 514, 81 S. w. 280 In another
! case two hounds in chase in McMinn county
disputed the right of way with an approach :
| ing train over the tracks. Of this same
railroad. The consequence was that one was
| Immediately transferred to the happy hunt
| ing grounds, where there are no railroads or
| other corporations, as they have no souls and
consequently no hereafter. The other was
not killed, but was Immediately converted
| into a thoroughly trained dog. Fink VS..
Evans 95 Tenn. Alb, 80 S. w. 3O7. But while
this perverse disposition seems to exist in
| the animals of East Tennessee, 1t is not
shown that the fireman knew of it; and, being
on a through train, the presumption is that
| he did not know of these local pecuIarities.
Counsel for plaintiff says that any farmer
1 knows that it is negligence pure and simple
| to approach a mule or frightened horse with
out soft words and kindly outstretched hands.
The distinction here made between a mule
and horse is well taken; that is, it is dan
Gerous to approach a frightened horse but
dangerous to approach a mule whether he is
frightened or not. This court judicially
knows this to be a fact, and it is agreed that
] the fireman ought to have known as much
as this court-about horses and mules Upon
/ the whole case the court is Of the opinion
t1at, inasmuch the mare has recovered
the plaintiff ought not to recover; that the
fireman did as much as could be required and
no negligence is shown. The judgment must
be reversed, and cause dismissed, at plain
! tiff S cost.