New Orleans, Jackson & Great Northern Railroad v. Field

Simkall, J.:

This writ of error is prosecuted by the Hew Orleans, Jackson and Great Northern Railroad Company, to review the judgment of the circuit court for refusing a new trial, and for alleged error in granting instructions to the jury. The questions grow out of the liability of the railroad company for the killing of the plaintiff’s mule by one of its freight trains under the circumstances proved on the trial. The subject is discussed and the principle in general terms is stated in Vicksburg & Jackson R. R. Co. v. Patton, 31 Miss. 176 ; Mississippi Central R. R. Co. v. Raiford, 43 ib. 238; 42 ib. 606, 607, and other cases.

It is now well established by authority and reason in this state, that uninclosed lands, although private1 property, are a quasi common, or, as expressed in local parlance, a “range,” in which the owners of cattle, and domestic animals generally, may permit them to go out. at large and depasture without thereby incurring any responsibility as trespassers. ' The comm on-law principle, which required the owner to confine his stock on his own premises and made him a wrong-doer if they escaped into the lands of his neighbor, never obtained in this state. But the converse is the rule ; that each occupant of lands must secure his fields by strong and sufficient inclosures against the intrusion of animals ; and that the owner cannot be held as a trespasser for their entering a close unless they have broken a fence deemed in law sufficient to exclude them. Uninclosed lands in this state are held subject to this right or easement-Railroad companies, like other proprietors, are not bound *579 to inclose their roads to keep off cattle. They are common carriers, with special franchises granted -by the state, to enable them to construct and operate their roads; while their franchises, equipments and roads are private property they are public conveniences, instrumentalities encouraged and promoted by the state to carry forward the general progress in the development of population and industries, and their fruits, wealth, public and private. They have become a necessity of modern civilization, and enter largely into the policies of all the states. By their means commerce and travel is mainly conducted.

In this twofold aspect, therefore, ought they to be considered. First, as proprietors of property, using it for their private gain, but, at the same time, not to be permitted so to use as to harm or injure others unnecessarily, as if to be avoided. In the prosecution of their ordinary business, they put in operation forces powerful and difficult to manage ; therefore it is incumbent on them to employ skillful and prudent agents, to guide and control them with vigilance, prudence and care, so as not to endanger the lives and property of others. They must use their locomotives with such care and diligence upon the road as would be exercised by a skillful, prudent and discreet person regarding their duty to the company, having a proper desire to avoid injury to property along the road, and liability to be exposed to danger. Baltimore & Susquehanna R. R. Co. v. Woodruff, 4 Md. 257 . Persons living contiguous to railroads have the same right as others, in more remote localities, to turn their cattle upon the ranges; but they assume the risk of their greater exposure to danger. The cattle are liable to go upon the road; the company cannot detain them, damage feasant, any more than any other landowner; nor can they treat them as unlawfully there, and therefore relax their care and efforts to avoid their destruction. The only justification of the company for injury to them is that, in the prosecution of their ordinary and lawful business, the act could not be avoided by the use'of such care, *580 prudence and skill as a discreet man would put forth to prevent or avoid it. The owner of cattle at large on the range takes the risk of injury or total loss by the locomotive and train, if the cattle exposed upon the track could not be saved by prudence, skill and caution. The company is excused and justified where, after using the means suggested by skill, prudence and caution, the injury or destruction could not be avoided. *

In this and all similar cases, the question is reduced to this: Was the accident inevitable ? Did the company’s agents and servants exert the skill, the prudence and care incumbent upon them, to avoid the injury and protect the property? When the injury became probable and imminent, was any thing left undone which might reasonably be supposed would have been available, if it had been done ? Were the agents of the company guilty of negligence ? These are questions of fact to be responded to by the jury, from the evidence; responded to under the guidance and direction of the court on the questions of law with which they are compounded.

It is complained by the plaintiff in error that the circuit court erred to his prejudice, by declining to give the fourth prayer for instruction. It has become the settled practice in this court, and, as it seems to us, accords with reason, and is needful to the practical administration of justice, not to disturb the verdict of the jury, if it can be supported by any fair view of the testimony which they may have taken, and had a right to take. Although a particular instruction may be refused, which embodies a correct abstract principle, if, looking at all the instructions given, the jury were furnished with full and sufficient guides as to the law to enable them to apply it to all the facts in evidence; if the other charges laid down the law so copiously and fully as that they fairly embraced every view which the jury could reasonably take of the testimony, and their verdict is not against the weight and .preponderance of the testimony, so as to do injustice, we would not set aside their verdict. *581 The jury were so instructed in several different forms of speech as to the relative rights and obligations of the parties toward each other, and on the subject of negligence, as to sufficiently guide them, without this fourth instruction.

As to the rate of speed at which trains may be propelled, it is dependent on several considerations: the condition of the road, the usage of railroads generally, the amount of property and passengers offering for transportation ; but the principle which underlies the subject is, that the rate of the speed must be reasonable, such as is consistent with the safety of the property and passengers in their care.

Whatever rate be adopted, the company are in no degree to relax efforts to protect cattle from injury. If the convenience and business of the public demands a rapid transportation, they are not restrained from meeting the requirement, because the danger to stock, from a fast tram, is greater than a slow one. If the object of the fourth instruction was to enumerate the facts in evidence, and to take the opinion of the court, whether if proved and believed by the jury, they acquitted the company of negligence, all the circumstances bearing upon the point ought to have been included, for the question was to be settled by a consideration of all the circumstances, and not a part of them, and the court might have withheld the instruction, as calculated to mislead, because it did not include all that the evidence disclosed, proper to be considered by them.

The judgment is affirmed.

Tarbell, J., dissented.