The Minneapolis journal., 1901-04-13

F. w Root, attorney for the c., M. & st.
P. railway, has discovered a decision in
| the Southwestern Reporter, No. AZ, which
gives the lie to the popular belief that the
law is utterly dry and devoid of fun. The
| decision of the supreme court of Tennes-
see, on page 925, is considered by attor-
neys who have chanced upon it, very fine
piece of humor. The decision is rendered
in the case Of the Southern railway VS..
Phillips.
The action was begun by J. T. Phillips
against the railway company. The judg-
ment was in favor Of the plaintiff in the
lower court and defendant brought error.
| Reversed. The syllabus states that the plain
tins mare went on defendants railroad track
| in front of train, and continued on it to
an unfoored bridge over creek, where she
| stopped but remained on the track which
was at that point on an embankment six feet
| high. The whistle had been sounded, and
the bell rung, and the train was stopped 120
yards from the mare, when the fireman
walked down the railroad on the side of
the track outside the cross ties towards her
| to get her off the track. AS he got near her
she ran over the bridge and was injured
Held, that plaintiff could not recover for
such injuries.
The court discourses at length as fol-
| lows:
Wilkes J. Phillips sued the railway COM
/
trial in the court below, the cause was heard
| before the court, without jury, upon an
| agreed statement Of facts, and a judgment
was rendered for $50 From the agreed
statement of facts it appears that the track
| of the company passes through a field where
! the mare was. She came upon it when a
freight train was approaching on a down
grade Instead of crossing the track, as she
| had the opportunity to do, the animal ran
I down the track in front of the. engine The
| whistle was sounded, the bell was rung and
| the brakes. were applied. The mare con-
| tinued the track out of the field, into
woodland, and came to open bridge or
trestle crossing a creek. The bridge was not
foored, and was constructed of stringers and
cross ties and track. When the mare
reached this trestle she stopped, but re-
mained on the track, which was at that
point on an embankment some six feet high.
The engine and train had already stopped 120
yards distant and were awaiting the pleas
ure and future movements of the mare 1t
was a through train, and counsel informs
us, was engaged in interstate commerce. 1t
became necessary therefore to devise some
means by which the train could run over
the bridge without at the same time running
over the mare. The fireman, in order to solve
the difficulty, left his engine and walked
down the road on the side of the track out
side the cross ties, towards the mare, hoping
to persuade or compel her to leave the track
approached near to her she ran over the
bridge, stepping sometimes on the ties and
sometimes on the vacant space between them.
She made the passage and still continued
on the track until she came to another
bridge, where she again stopped in a hesitat-
ing manner. The fireman then made a circuit
around the animal, and by some means sue
ceeded in getting her off the track and the
train proceeded It is agreed that in crossing
the bridge the mare injured to the ex-
tent of $50. 1t is also agreed that the road
used all the statutory precautions, and plain
tiff states that he makes no claim for dam
ages because the track was not fenced.
The Briefs Disagree.
i This is the case as presented by the agreed
statement of facts, but when We examine the
briefs of the attorneys we find much that
is not in the record The learned counsel
Tor the railroad company contends that the
mare inflicted the injuries upon herself and
that they were not caused by the railroad. He
/ insists that the proximate cause of the
injury was the determination of the mare to
cross the bridge when she might much more
readily have gone down the six-foot embank
ment and been safe, that she was guilty of
the grossest contributory negligence in her eff
forts 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 manner,
and with the best of Intentions that it was
in January; the weather was cold, and the
fireman could not be expected to wade the
creek in order to get around the animal and
prevent her from crossing the trestle; and
besides such proceeding would have caused
| delay, interfered with the commerce be-
tween the states and exposed the train to be
run into front or rear, or both, by other
trains. 1t is argued THAT common observa-
4 tion teaches that horse will not cross an
open trestle, and that an elephant will not
cross a bridge even when it is fOoFed; 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 a trapeze
performance in midair. 1t sis also said by
counsel evidence of the fireman's good
faith that when he saw the animal cross the
first trestle, and come to the second, and
hesitate he then went entirely around her,
and enjoined her from going over the second
one; and it Is insisted that that government
by injunction in such a case is legitimate
and proper. The council for the plaintiff
insists, however that the fireman knew that
the general course of the mare was along the
track, and that she was frightened, and com
mon sense dictated that he should get off the
track and go around the animal instead of
following on behind her. Counsel say that
they do not insist that the fireman should
have ~aded the creek to get around the mare,
but ne should have gotten out to one side
and "shooed" her off the bank, like woman
shooes her chickens out of the flower bed. 1t
is argued by the counsel for the plaintiff that
when the mare stopped at the trestle and
! hesitated to- cross Sit she showed good horse
sense, and If the fireman had showed as
much sense as the mare the accident would
mot have happened. Counsel also insists
| that nSthe plaintiffs elephant had been stu
ated as this mare was, with freight train
observing all statutory precautions, coming
down upon it, it would have taken the bridge
crossing as the mare did instead of the cold