(126 Miss. 756, 89 So. 620.) Messrs. H. B. Greaves and J. M. Greaves, for appellee: The railroad company was negligent in running its train at such a rate of speed, and with a headlight incapable of showing an object on the track, that the train could not be stopped after seeing the object. St. Louis & S. F. R. Co. v. Moore, 101 Miss. 768, 39 L.R.A. (N.S.) 978, 58 So. 471, Ann. Cas. 1914B, 597; Nixon v. Illinois C. R. Co. 103 Miss. 405, 60 So. 566; Illinois C. R. Co. v. Greaves, 75 Miss. 360, 22 So. 804; Louisville & N. R. Co. v. Christian Moerlein Brewing Co. 150 Ala. 390, 47 So. 723; Southern R. Co. v. Pogue, 145 Ala. 444, 40 So. 565. Holden, J., delivered the opinion of the court: The appellee, Hamblin, recovered a judgment for $175 for a mule killed by the running of one of the appellant's passenger trains at night, in the country. The mule appeared upon the track with a sack over its head and was struck by the train running at the rate of 45 miles per hour. The engineer and fireman were the only witnesses who saw the striking of the mule by the train, and their testimony was undisputed at the trial. They both testified to seeing the mule upon the track with the sack over its head, and that the sack had two holes cut in it for the ears of the mule to come through; that they afterwards found the sack on the front part of the engine, with blood upon it. The engineer testified that the equipment and appliances of the train were in good order, that the headlight was the standard electric headlight and was in good order, but that by it he could not distinguish as small an object as a mule on the track farther than 250 feet ahead of the engine. In other words, the testimony of the engineer is to the effect that the headlight was not sufficient for him to distinguish a mule on the track more than 250 feet away, and that he could not stop his train in that distance when he was running 45 miles per hour, as was the case here. He said the headlight was the standard electric headlight used by all railroads, was in good condition, and that a large object, such as a car, could be seen by this light at a distance far enough away for him to stop his train while running at 45 miles per hour. He testified that as soon as he saw the mule upon the track he made every reasonable effort to prevent the injury, but that it was impossible to avoid the killing of the mule, because the train could not be stopped in the short distance after seeing the animal upon the track. At the conclusion of the testimony the defendant railroad company requested a peremptory instruction to court, and the case was submitted to find for it, which was refused by the the jury, which resulted in a verdict for the appellee, and hence this appeal by the railroad company. The appellant assigns several errors for reversal, but we shall notice only one, and that is whether the court erred in refusing the peremptory instruction asked by the defendant railroad company. The record conclusively shows that the mule was upon the track in the country, not in a municipality, when struck, and that the engineer did everything reasonably required of him to prevent the injury after he discovered the animal upon the track. It is also undisputed in the record that the equipment, appliances, and headlight of the train were in good condition and of the and standard character. proper and standard This being true, it seems obvious to us that the railroad company was killing animalguilty of no negli- insufficient fore the peremptory instruction gence; and thereshould have been granted. Railroad headlight. But it is contended here by the appellee that the railroad company was guilty of negligence in running its train at the rate of 45 miles per hour at night, with a headlight that was incapable of showing a mule, or any object, on the track at such distance as would enable the engineer to stop his train after seeing the object on the track. ject on the track. And we apprehend that the case below was sub mitted to the jury upon this theory alone, depending for support upon the rule announced in St. Louis & S. F. R. Co. v. Moore, 101 Miss. 768, 39 L.R.A. (N.S.) 978, 58 So. 471, Ann. Cas. 1914B, 597, and Nixon v. Illinois C. R. Co. 103 Miss. 405, 60 So. 566. But we think the case before us does not come within the rule announced in the Moore and Nixon Cases, but comes within the rule announced in Yazoo & M. Valley R. Co. v. Frazier, 104 Miss. 372, 60 So. 547. In the latter case the Moore and Nixon Cases were discussed by the court and a clear differentiation upon the facts was noted, and we do not feel that much can be added by a further discussion of the question in the present case. It is clear to us that in the Moore Case, which was followed by the Nixon Case, the court predicated negligence of the railroad upon the particular facts there involved, namely, that the train was running at an unlawful and dangerous rate of speed within within a municipality, through a populous section of the country, on a dark and foggy night. But in the Frazier Case, supra, and the case before us now, the facts are quite different, in that the injury occurred out in the country, at a place where it was not unlawful, or negligence per se, to run more than 6 miles per hour. At such a place, night or day, it is not, ordinarily, negligence per se to run at a speed of 45 miles per hour with proper and standard equipment. We are therefore convinced that the lower court erred in refusing the peremptory instruction asked by the railroad company. While it is not material to a decision of this case, we have not overlooked the undisputed testimony of the engineer and fireman with reference to the sack that was on the mule's head at the time he was struck. It does not appear who it Iwas that cut the ear holes in the sack and fit it over the mule's head, but it was done evidently for the unworthy motive. It endangers the purpose of blinding the mule for an lives of the persons on the train to strike a large animal on the track, as it sometimes results in derailment of the train. If the animal in this case had been able to see the train, he probably would have gotten off the track uninjured. To say the least of it, the remarkable fact of the mule appearing blindfolded upon the track is enough to excite reasonable suspicion in the premises. The judgment of the lower court is reversed and judgment entered here for appellant. Suggestion of error overruled. ANNOTATION. Duty to check speed of train upon discovering live stock on or near tracks. United States.-St. Louis & S. F. R. Co. v. O'Loughlin (1892) 1 C. C. A. 311, 4 U. S. App. 283, 49 Fed. 440; Gulf, C. & S. F. R. Co. v. Ellis (1893) 4 C. C. A. 454, 10 U. S. App. 640, 54 Fed. 481. Georgia.-Southern R. Co. v. Keel (1909) 7 Ga. App. 244, 66 S. E. 627; Atlantic Coast Line R. Co. v. Chastain (1914) 15 Ga. App. 707, 84 S. E. 167. Illinois. Illinois C. R. Co. v. Wren (1867) 43 Ill. 77; Chicago & N. W. R. Co. v. Barrie (1870) 55 III. 226; Chi cago & A. R. Co. v. Kellam (1879) 92 Ill. 245, 34 Am. Rep. 128; Shuman v. Indianapolis & St. L. R. Co. (1882) 11 Ill. App. 472. Iowa.-Parker v. Dubuque Southwestern R. Co. (1872) 34 Iowa, 399; Searles v. Milwaukee & St. P. R. Co. (1872) 35 Iowa, 490. Kansas.-Missouri P. R. Co. v. Wilson (1882) 28 Kan. 637; Kansas City, Ft. S. & G. R. Co. v. Hines (1884) 32 Kan. 619, 5 Pac. 173. Kentucky.-Contracting & Bldg. Co. v. Biggs (1890) 12 Ky. L. Rep. 635; Mobile & O. R. Co. v. Morrow (1906) 30 Ky. L. Rep. 83, 97 S. W. 389. Louisiana. Lapine v. New Orleans, O. & G. W. R. Co. (1868) 20 La. Ann. 158. Mississippi.-Newman v. Vicksburg & M. R. Co. (1886) 64 Miss. 115, 8 So. 172. Missouri.-Pryor v. St. Louis, K. C. & N. R. Co. (1878) 69 Mo. 215; Warren v. Chicago, M. & St. P. R. Co. (1894) 59 Mo. App. 367; Wilkinson v. St. Louis Southwestern R. Co. (1910) 146 Mo. App. 711, 125 S. W. 544; Buckman v. Missouri, K. & T. R. Co. (1903) 100 Mo. App. 30, 73 S. W. 270. North Carolina.-Aycock v. W. & W. R. Co. (1858) 51 N. C. (6 Jones, L.) 231; Wilson v. Norfolk & S. R. Co. (1884) 90 N. C. 69. South Dakota.-Borneman v. Chicago, St. P. M. & O. R. Co. (1905) 19 S. D. 459, 104 N. W. 208. But there is no obligation to check the speed of the train where to do so would endanger the persons or property upon the train, since the first duty of the railroad company is to protect them. Colorado.-Denver & R. G. R. Co. v. Divelbiss (1899) 13 Colo. App. 304, 57 Pac. 743. Indian Territory.-Chicago, R. I. & P. R. Co. v. Huggins (1902) 4 Ind. Terr. 194, 69 S. W. 845. Iowa.-Searles v. Milwaukee & St. P. R. Co. (1872) 35 Iowa, 490; Sand ham v. Chicago, R. I. & P. R. Co. (1874) 38 Iowa, 88. Kentucky.-Louisville & N. R. Co. v. Ballard (1859) 2 Met. 177; Louisville & N. R. Co. v. Marriott (1884) 5 Ky. L. Rep. 933 (abstract); Contracting & Bldg. Co. v. Biggs (1890) 12 Ky. L. Rep. 635. Missouri.-Owens v. Hannibal & St. J. R. Co. (1874) 58 Mo. 386; Pryor v. St. Louis, K. C. & N. R. Co. (1878) 69 Mo. 215. Vermont.-Bemis v. Connecticut & P. River R. Co. (1869) 42 Vt. 375, 1 Am. Rep. 339. And where an effort to slacken its speed, or to stop the train, would not avoid collision with the animals upon the track, the railroad company is excused from making the effort. Central of Georgia R. Co. v. Neidlinger (1886) 110 Ga. 329, 35 S. E. 364; Central of Georgia R. Co. v. Duggan (1905) 124 Ga. 493, 52 S. E. 768; Chicago, R. I. & P. R. Co. v. Huggins (1902) 4 Ind. Terr. 194, 69 S. W. 845; Mobile & O. R. Co. v. Morrow (1906) 30 Ky. L. Rep. 83, 97 S. W. 389; New Orleans & N. E. R. Co. v. Bourgeois (1888) 66 Miss. 3, 14 Am. St. Rep. 534, 5 So. 629; New Orleans & N. E. R. Co. v. Martin (1921) 126 Miss. 765, 89 So. 621; PAYNE V. HAMBLIN (reported herewith) ante, 146. And the train need not always be slowed up or stopped as soon as live stock are discovered upon the track, but the engineer may first resort to the whistle, if he may reasonably believe that it will cause the animals to leave the track in time to avoid injury. Arkansas.-Little Rock & Ft. S. R. Co. v. Trotter (1881) 37 Ark. 593. Illinois. Ohio & M. R. Co. v. Stribling (1889) 38 Ill. App. 17. Indiana. Hanna v. Terre Haute & I. R. Co. (1889) 119 Ind. 316, 21 N. E. 903. Missouri.—Warren v. Chicago, M. & St. P. R. Co. (1894) 59 Mo. App. 367, 1 S. W. 37; Cornett v. Chicago, B. & Q. R. Co. (1914) 184 Mo. App. 463, 171 S. W. 15. New York. Boyle v. New York, L. E. & W. R. Co. (1886) 39 Hun, 171, affirmed without opinion in (1889) 115 N. Y. 636, 21 N. E. 724. - Texas.-Hines v. Pennington (1922) Tex. Civ. App. —, 240 S. W. 703. West Virginia.-Toudy v. Norfolk & W. R. Co. (1894) 38 W. Va. 694, 18 S. E. 896. And ordinary or reasonable care does not require a train to be stopped in order to avoid injury to stock on the track, but there may be facts which make the stoppage only ordinary care to avoid the injury which would otherwise occur. Paragould Southeastern R. Co. v. Crunk (1906) 81 Ark. 35, 98 S. W. 682. An engineer need not slacken the speed of his train upon discovering animals near the track, unless there is something to indicate that they may come upon the track, or are in such close proximity thereto that they are likely to be injured. Arkansas.-Kansas City Southern R. Co. v. Garrett (1917) 129 Ark. 583, 196 S. W. 454. Colorado.-Rio Grande Western R. Co. v. Boyd (1908) 44 Colo. 119, 96 Pac. 781; Chicago, B. & Q. R. Co. v. Church (1911) 49 Colo. 582, 114 Pac. 299; Denver & R. G. R. Co. v. Bird (1915) 60 Colo. 259, 152 Pac. 911. Florida. Savannah, F. & W. R. Co. v. Rice (1887) 23 Fla. 575, 3 So. 170. Georgia.-Augusta Southern R. Co. v. Carroll (1909) 7 Ga. App. 138, 66 S. E. 403. Idaho.-Wallace v. Oregon Short Line R. Co. (1909) 16 Idaho, 103, 100 Pac. 904. Illinois. Chicago, B. & Q. R. Co. v. Bradfield (1874) 63 Ill. 220; Peoria, P. & J. R. Co. v. Champ (1874) 75 Ill. 577; St. Louis, A. & T. H. R. Co. v. Russell (1890) 39 Ill. App. 443; Wabash R. Co. v. Aarvig (1895) 66 Ill. App. 146. Iowa.-Parker v. Dubuque Southwestern R. Co. (1872) 34 Iowa, 399. Michigan.-Robinson v. Flint & P. M. R. Co. (1890) 79 Mich. 323, 19 Am. St. Rep. 174, 44 N. W. 779. Mississippi.-Yazoo & M. Valley R. 4 So. 341; New Orleans & N. E. R. Co. v. Thornton (1887) 65 Miss. 256, 3 So. 654; New Orleans & N. E. R. Co. v. Bourgeois (1888) 66 Miss. 3, 14 Am. St. Rep. 534, 5 So. 629; Yazoo & M. Valley R. Co. v. Whittington (1890) 74 Miss. 410, 21 So. 249, 1 Am. Neg. Rep. 286; Yazoo & M. Valley R. Co. v. Wright (1900) 78 Miss. 125, 28 So. 806; New Orleans & N. E. R. Co. v. Martin (1921) 126 Miss. 765, 89 So. 621. Missouri.-Young v. Hannibal & St. J. R. Co. (1883) 79 Mo. 336; Sloop v. St. Louis, I. M. & S. R. Co. (1886) 22 Mo. App. 593; Grant v. Hannibal & St. J. R. Co. (1887) 25 Mo. App. 227. Texas. San Antonio & A. P. R. Co. v. Dunn (1918) Tex. Civ. App. 207 S. W. 204. Utah.-Bunnell v. Rio Grande Western R. Co. (1890) 13 Utah, 314, 44 Pac. 927; Preece v. Oregon Short Line R. Co. (1916) 48 Utah, 551, 161 Pac. 40. West Virginia.-Testerman v. Hines (1921) 88 W. Va. 547, 107 S. E. 201. In many of the cases cited above in support of the general rule as to the duty to check the speed of the train, it would seem that the animals in question must have been trespassing on the track, but the point is not often expressly mentioned. But in Darling v. Boston & A. R. Co. (1876) 121 Mass. 118, it was held that an engineer is not bound to stop or slacken the train in order to avoid, or give way to, a horse which has strayed from the highway upon the railroad right of way and is unlawfully upon the railroad. And the court said in this case that the horse, being an estray unlawfully at large on the highway, was a trespasser upon the railroad, and the railroad company owed no duty to the owner of the horse, and was not liable for striking it with the engine, unless there was reckless and wanton misconduct on the part of those employed in the management of the train. And in Boyle v. New York, L. E. & W. R. Co. (1886) 39 Hun (N. Y.) 171, affirmed without opinion in (1889) 115 N. Y. 636, 21 N. E. 724, holding that a railroad company is not liable for injury to animals trespassing upon the track, if they are run down and killed merely through the negligence of those in charge of the train, and that to make the railroad company liable the injury must be done wantonly and maliciously, the court said that the engineer is under no duty to reduce the speed of the train upon discovering animals upon the track, and that in this case, where it appeared that the horses which were killed ran in front of the train for a long distance, without any obstacle to prevent their escaping from the track to a place of safety at any moment, and that the engineer kept sounding the whistle to frighten them from the track, there was no rule of law that required the railroad company to do more with a view of avoiding injury to animals trespassing upon its tracks, than the engineer had done. In Borneman v. Chicago, St. P. M. & O. R. Co. (1905) 19 S. D. 459, 104 N. W. 208, however, the court said that an engineer is bound to stop the train and prevent injury to a horse discovered upon the track, if he sees the horse in time to enable him, by the exercise of reasonable care, to do so, although the horse is a trespasser upon the track. II. Application. a. Animals upon track. For general rule, see supra, I. A charge to the effect that the law imposes the duty on a railroad company to maintain a lookout to discover cattle on its tracks, and to stop its train as soon as cattle appear upon its tracks, or in the act of approaching it, or so near to the same that slight change of position by them may result in their destruction or injury, was held in Atlanta & W. P. R. Co. v. Hudson (1905) 123 Ga. 108, 51 S. E. 29, to be erroneous because the court thereby told the jury what facts constituted negligence, instead of laying down the law that the measure of duty required of the employees of a railroad company in respect to stock along the line of its road was ordinary care, and permitting the jury to determine whether the action of such employees as to the stoppage of the train was or was not an exercise of such care. And a charge that "where stock is upon the track, or in danger of being killed, ordinary diligence and reasonable care would require the railroad company to do all that they could to slow up or stop their trains, rather than to kill the stock," was held in Georgia S. & F. R. Co. v. Jones (1904) 121 Ga. 822, 49 S. E. 729, to be erroneous upon the ground that the definition of ordinary care imposed extraordinary diligence on the company. And the court held erroneous, in Chicago, I. & L. R. Co. v. Shedrow (1921) Ind. App., 129 N. E. 406, an instruction to the effect that, if, after plaintiff's cattle were on the railroad track, they were seen by the railroad company's employees who were operating the train that killed them, in time to stop the train and to avoid injury to them, it was the duty of such employees to stop the train and avoid the injury, if possible to do so with safety to the train and its passengers. The court said that the effect of such instruction was to inform the jury that, in order to find the railroad company guilty of actionable negligence, it was only necessary to determine that it was possible for the persons in charge of the train to have stopped the train with safety, and thereby to have avoided injury to the cattle, and that this was not the law, but that on the contrary a finding that it was possible to have stopped the train and avoided injury to the cattle would not have established actionable negligence, unless the jury had found, in addition thereto, that ordinarily prudent persons, exercising ordinary care under the same or similar circumstances, would have stopped such train, and that whether such care was exercised by the persons in charge of the train was a question for the jury. And in Parker v. Dubuque Southwestern R. Co. (1872) 34 Iowa, 399, the court held erroneous an instruction to the effect that, if the engineer saw the cattle, warned them while on the track, and believed he could scare them off the track, he was not bound |