Chicago, St. Louis & New Orleans Railroad v. Jones

Chalmers, C. J.,

delivered the opinion of the court.

The testimony, both for the plaintiff and the defendant, shows that the emplees of the defendant used every care and caution necessary for avoiding the killing of the plaintiff’s horses, and were guilty of no negligence whatever, unless it be true that, at the actual moment of collision, the train was running at a greater rate of speed than six miles per hour through the incorporated town of Yaiden. The testimony as to the speed is conflicting. The weight of it, we think, is with the defendant on this point; but as the verdict can be supported only on the theory that the juiy thought otherwise, and as there was testimony which warranted them in so thinking, we cannot disturb the verdict unless error of law was committed against the defendant. The engineer testified that as the horses ran down the track before the locomotive, which was running at a very low rate of speed, one of them ran into or upon a trestle, and became at once so entangled in it that it was impossible for him to extricate himself, and the others halted and gathered in confusion around him. Though the train was running at the time at much less than six miles an hour, it was impossible to stop it, consisting as it did of nineteen cars, and there being a heavy down grade at the point. The train was within thirty yards of the animals, and the engineer realized that a collision was in any event inevitable. If the collision occurred at the low rate of speed at which the train was then running, the locomotive he said must run over the bodies of the animals, which would almost certainly result in throwing it off the trestle, and causing the destruction of the engine, and the probable death of himself and the fireman. If, however, the collision should occur when the rate of speed was greater, the animals would probably be thrown from the track, and the danger to the engine and its occupants be thereby averted. With a view of producing the latter result, he at *469 once turned on the steam, and attempted to quicken his speed. He thinks that even after this the train moved at less than six miles an hour; but as to this fact the defendant’s witnesses, or some of them, differed from him, and we must assume, for the consideration of the question presented, that they were right and he wrong. The defendant by its tenth charge asked the court to instruct the ju.ry that, if they believed that the above state of facts existed, and that it was necessary to quicken the speed with a view of lessening the danger, the defendant was not liable, even though the jury might believe that, at the moment of collision, the speed was greater than six miles an hour. This charge was refused by the court, and such refusal is assigned for error.

We think that the instruction should have been given. The lawgiver, in making railroad companies liable for all damage done by their trains when running through incorporated towns at a greater rate of speed than six miles an hour (Code 1880, § 1047), did not intend to force upon the employees in charge of a train, where every dictate of care and prudence has been observed, the alternative of conforming to the statute, at the risk of a destruction of the property and lives in their charge, or of disregarding the statute, in a bona fide attempt to preserve life and property, and thereby make the company liable for all damage accruing to third persons, though such damage was inevitable, no matter what rate of speed was observed. Such a construction (to use the illustration of Blackstone) would be as unreasonable as to make a surgeon guilty of shedding blood in the streets, under a statute prohibiting it, though such shedding was necessary to preserve the life of him whose blood was shed.

The railroad company would have no right to claim the benefit of the doctrine here announced, except where the proof showed that its employees had been guilty of no default either of omission or of commission, where a collision was in any event inevitable, and where there was at least a chance that, by increasing the speed, the danger to the train and to those upon it would be diminished. Where these facts concur, an increase of speed for the honest purpose of lessening the danger will impose no liability, and such, according to the testimony of the *470 engineer, was the state of facts in the case before us. It was for the jury to say whether they really existed, but the defendant had the right to demand that this theory of the law should be submitted to the jury. The instruction refused was not perhaps so strictly and accurately drawn as it might have been as to the absence of all previous negligence on the part of the defendant, but it substantially announced the law as here laid down, and the defendant was entitled to have it given to the jury-

The instructions on the subject of contributory negligence asked by the defendant were properly refused. We see no element of contributory negligence in the case. The owner of cattle or horses has the right, even in an incorporated town, to depasture them upon the commons, in the absence of any local legislation prohibiting it, and is not guilty of negligence in doing so. The risk which he thereby assumes is greatly increased, but such a practice, though dangerous and reprehensible, is not unlawful, nor does it diminish his right to demand compensation from those by whose fault damage is inflicted upon them.

For the error in refusing the tenth instruction asked by the defendant, the judgment is reversed, and a new trial awarded.

So ordered.