Animal returning to track after leaving same.

The engineer was held negligent so as to render the railroad company liable for the killing of a mule in Wilson v. Norfolk & S. R. Co. (1884) 90 N. C. 69, where he saw the mule on the track about a half a mile ahead and gave the stock alarm, but did not slacken the speed of the train, and the mule ran off the track, but suddenly ran back. upon the track when the engine was so close that it could not be stopped in time to avoid striking it. In this case the court said: "It was the plain duty of the engineer to slacken the speed, and, if need be, stop the train. If the mule ran off the road quietly, and manifested by its acts no great alarm, but a disposition to get away from the road, or if at first it stood still, off the road, until the near approach of the train, then it suddenly ran back on the road a short distance ahead of the engine and was killed, the engineer being unable to stop the train-in such case there would not be negligence, and the defendant would not be liable. But in another view, if the mule was greatly frightened at the whistle and the train,was panic-stricken,-ran about wildly and recklessly in the immediate neighborhood of the road, and would as likely, in its fright, run on as from it, and the engineer failed to slacken the speed of the train, and the mule suddenly dashed back on the road and was killed by the engine, this would be negligence, and the defendant would be liable for damages. It may be conceded that where cattle are quietly grazing, resting, or moving near the road,-not on it, and manifesting no disposition to go on it, the speed of the train need not be checked, but the rule is different where the cow or mule is on the road and runs on, then off, along, near to, and back upon it. In such a case, reasonable diligence and care require that the engineer shall slacken the speed, keep the engine steadily and firmly under his control, and, if need be, stop it until the danger shall be out of the way." And where the evidence upon the

part of the plaintiff in an action for the death of a cow struck by a train was that the train was 200 yards from the cow as she got upon the track, and the evidence of the engineer was that she was about 90 feet from the engine, and that she got off the track and he thought that she would remain off, but that she came back on the track when the engine was about 50 feet from her, and it further appeared that he made no effort to slacken the speed of the train, but, as it approached the cow, rather increased it, and that the rate of speed, as testified to, varied from 10 miles to 40 miles per hour, it was held in Missouri, K. & T. R. Co. v. Farrington (1898) 1 Ind. Terr. 646, 43 S. W. 946, that the negligence of the engineer was question for the jury, and the court sustained a judgment for plaintiff.

And in Mobile & O. R. Co. v. Holt (1884) 62 Miss. 170, where it appeared that the engineer, upon discovering a number of cattle upon the track, sounded the whistle, which caused them to disperse and scatter in different directions, all save one going to the unobstructed side, the cow in question alone going to the other side where a wire fence presented an impassable barrier, and she ran down the side of the track a considerable distance, and finally turned across it and was killed while attempting to get to the other side, the train meanwhile having taken off its brakes and pursued its course without checking its speed, as soon as the cattle had left the track, the court upheld a verdict for the plaintiff, saying: "Should it, under the circumstances, have foreseen that the natural instincts of the terrified brute would necessarily impel it to seek the other and unobstructed side, where all its companions were, and was its whole duty done when it ran on without reference to the cow thus closely pursued? We cannot say that the law makes any rule on the subject. It was peculiarly a question of common sense and common experience, and as such we are content to leave it to the jury, who seem to have been correctly instructed. The

jury have answered the question in favor of the plaintiff, and we cannot interfere."

But in New Orleans & N. E. R. Co. v. Martin (1921) 126 Miss. 765, 89 So. 621, where the engineer of a doubleheader freight train saw a cow about a quarter of a mile ahead crossing the track, but neither sounded the stock alarm, nor applied the brakes, because, judging from appearances, the cow would reach a place of safety before the train could get to the point where she was, and she did pass over the track to a place of safety, but, when the front part of the train was within 100 to 150 feet of her, suddenly turned around and started back to the other side of the track, and, as soon as the engineer observed that she had turned to go back, he sounded the stock alarm and applied the brakes, but almost the entire length of the train passed over her before it could be stopped, thereby showing that even if, when he first saw the cow, the engineer had attempted to stop the train, he would have been unable to have avoided striking her, it was held that the engineer did not fail to do anything that he could have reasonably done to avoid the killing of the cow, and therefore the court should have instructed the jury to return a verdict for the railroad company. As affected by signal to stop.

In a suit against a railway company for damages for iniuring live stock, where the plaintiff's testimony disclosed that the stock broke from his lot and ran down the railroad track, closely pursued by one of his servants, who, upon the approach of the train which injured the stock, stood in the center of the track in front of the train and signaled it to stop by waving his hat, which signals were unheeded by the railway employees, but which, if heeded, would have enabled the engineer to avert the collision of the train with the stock, and where this evidence was contradicted by the defendant's evidence, an issue of fact was raised as to whether, had proper diligence been exercised by the railway employees, the injury to the stock would have been caused. The

evidence was held sufficient to authorize the verdict, which had the approval of the trial judge; and the judgment refusing a new trial was not disturbed. Central of Georgia R. Co. v. McKenzie (1906) 125 Ga. 222, 53 S. E. 591.

And it was held in Hansen v. Northwestern P. R. Co. (1922) Cal. App.

209 Pac. 63, that it was the engineer's duty to stop the train when he saw a herdsman waving to protect a herd of cows crossing the track. At crossing.

It cannot be said as a matter of law that a railroad company, when cattle are discovered on the track at a highway crossing, is not required to slacken the speed of its trains, or to give signals by blowing the whistle or ringing the bell, since, although, under some circumstances, a train is not required to slacken speed or give signals, as, for instance, where the speed could not be slackened without danger to the train, and where the giving of signals would be likely to do no good, there are other circumstances under which the exercise of ordinary care would require of those in charge of the train not only to give signals, but also to slacken speed. Searles v. Milwaukee & St. P. R. Co. (1872) 35 Iowa, 490 (ox.)

And it is the duty of an engineer when he sees a herd of cattle without a herdsman, following each other in a line over a highway crossing of the track, a part of them having crossed, to slacken the speed of the train, and his failure to do so renders the railroad company liable for the killing of a cow by the train. Chicago & A. R. Co. v. Kellam (1879) 92 Ill. 245, 34 Am. Rep. 128.

The railroad company was held liable in Wilkinson v. St. Louis S. W. R. Co. (1910) 146 Mo. App. 711, 125 S. W. 544, for injury to cattle at a public crossing, where the engineer saw the cattle upon the track when 100 yards distant, and could have seen them for half a mile, but made no attempt to check the speed of the train, but instead increased its speed, although he complied with the statute

with reference to whistling before or on approaching a crossing.

And in Murray v. Hines (1921) Mo. App., 227 S. W. 860, where it appeared that a string of cattle in the act of crossing the tracks were seen by the engineer of a train a long distance away, and he began to blow the whistle and open the steam cocks to scare them off the tracks, but did not slacken the speed of the train, but rather increased it after he saw the cattle, it was held to be a question for the jury whether he was negligent, although the engineer testified that when he saw that the cattle were in danger he began to slow up the train; and a verdict for the plaintiff was upheld.

But in Hanna v. Terre Haute & I. R. Co. (1889) 119 Ind. 316, 21 N. E. 903, holding the railroad company not liable for killing two cows at a public crossing, the court said: "It can hardly be expected that a train approaching a highway must be stopped whenever animals are seen on the crossing. If the statutory signals have been given, and reasonable efforts made, in the customary manner, to frighten the animals away, the railroad company has discharged its duty, so far as it relates to the owner of animals which are found on a public crossing."

And in Sandham v. Chicago, R. I. & P. R. Co. (1874) 38 Iowa, 88, where horses were killed at a crossing, the court held erroneous an instruction to the effect that if the engineer, by the use of ordinary care, could not have avoided the injury, either by stopping the train in time, or by checking its speed, without increasing the danger to its passengers to an unreasonable extent, the railroad company was not liable. The court said: "It was the paramount duty of the engineer to look to the safety of the passengers on his train, and his duty to avoid injury to the animals of the plaintiff was subordinate to the former. Louisville & F. R. Co. v. Ballard (1859) 2 Met. (Ky.) 177. Human life is of greater value than that of a domestic beast; besides this, railroad companies owe duties to the passengers

on their trains, arising out of the contract relations between them, that do not exist in respect to animals straying upon the railroad track. The engineer, therefore, was not authorized, much less required, to stop his train or check its speed, if by so doing the danger to the passengers was made greater than it would have otherwise been. He was not authorized to increase the danger to his passengers, in order to avoid injury to the horses of plaintiff. This the instruction required him to do. True, it did not require him to increase the danger to the passengers to what is called an unreasonable extent, but it conveyed the idea to the jury that to avoid injury to the horses the engineer might increase the danger to the passengers to some extent which might be reasonable; whereas, to increase it for such purpose to any extent whatever would be not only unreasonable, but unlawful in the sense that it would have been a violation of a duty which he owed to the passengers. Under the circumstances stated there could have been no such thing as a reasonable increase of danger to the passengers on the train. The terms are contradictory. To have increased the danger in any degree would have been unreasonable."

In Louisville & F. R. Co. v. Ballard (Ky.) supra, there was evidence tending to show that the engine could not, with safety, have been stopped before reaching a crossing near which plaintiff's mare was struck, and conducing to show that the best means that could have been adopted to prevent an accident after the mare was discovered by the engineer was to increase the speed of the train and thereby pass the crossing before the animal reached it; and the court said that if this were so, and a proper regard for safety of persons and property on the train required the adoption of such means, the persons in charge of the train ought not to have attempted to stop the train, and it was proper for them to increase the speed as they did.

Where the engineer discovers cattle upon the track at a crossing so short a distance ahead that to check

the train or endeavor to stop it would endanger the safety of the passengers, the failure of the engineer to try to check the speed of the train, or his failure to try to stop the train, is not such negligence as would entitle the owner of the cattle to a recovery, nor would any acceleration of speed necessary to the safety of the train or passengers, under the circumstances, entitle plaintiff to recover. Owens v. Hannibal & St. J. R. Co. (1874) 58 Mo. 386.

And in Toudy v. Norfolk & W. R. Co. (1894) 38 W. Va. 694, 18 S. E. 896, holding a railroad company not liable for the death of a horse killed by stepping on a public crossing in front of a train, so close to the engine that it could not be stopped before striking it, it was stated that it was not always necessary that the engineer stop the train or slacken its speed upon discovering live stock upon the track, and that ordinary prudence required him promptly to endeavor to drive the stock off the track by sounding the whistle, and did not require him to stop or slacken the speed when he might reasonably believe that the stock would leave the track in time, and that there was no cause or reason to suppose there was any risk or danger.

And an engineer who discovers a cow upon a private crossing ahead is not bound immediately to proceed to stop the train, but he may rely upon the alarm whistle as a means of scaring the animal off the track, and although, after he sees that the animal will not leave the track, it is too late to stop the train to avoid striking it, and the train could have been stopped without striking the cow if he had started to check its speed at the time he first perceived her upon the track, the railroad company is not liable. Cornett v. Chicago, B. & Q. R. Co. (1914) 184 Mo. App. 463, 171 S. W. 15. The court in this case said: "There are circumstances in which an immediate effort to stop the train would be the only safe alternative.

. [Citing cases.] But these cases and others of like import we have examined fall far short of declar

ing that an engineer, seeing a cow on or near the track a sufficient distance ahead for the train to be stopped in safety, would not be justified in relying at all upon the efficacy of an alarm whistle, but must proceed at once to stop the train if he would escape an imputation of actionable negligence. Ordinarily alarm signals are all the means required to clear the track of such animate obstructions, and it is only in instances where it appears that such signal would be unavailing that reasonable care would demand a resort to other means. There is nothing in the evidence from which it may be said that a reasonably careful and prudent person in the place of the engineer would have anticipated that the cow would prove refractory and would not leave the track as the shrieking engine bore down upon her. When the futility of the alarm became apparent, the train was too close for a saving stop or check in speed to be made. There are no facts and circumstances in evidence that tend to accuse the engineer of conduct at variance with that to be expected of an ordinarily prudent person in his situation."

And in Lancaster v. Eidson (1921) Tex. Civ. App. —, 234 S. W. 708, where a cow was killed at a public crossing in a town where the railroad company was not required to fence its track, and at a place where, in order to recover for its death, it rested on its owner to prove negligence, and where, although it was shown that the customary signals were not given, and that the train did not slow up or stop, no connection was shown between such negligence and the death of the cow, and there was no word of testimony to show that the cow was on the track long enough for her to have been seen at such a distance that the train could have been stopped in time, it was held that the evidence was insufficient to establish negligence upon the part of the railroad company.

b. Animals near track.

For general rule, see supra, I. Where the operators of a train

which struck a cow, upon discovering her near the track, had no reason to believe that she was going to come upon the track, and there was nothing in her conduct to make an ordinarily prudent person anticipate that she would come upon the track, the railroad company is not liable by reason of their failure to slacken speed or stop the train until they had reason to believe she would come upon the track. Kansas City Southern R. Co. v. Garrett (1917) 129 Ark. 583, 196 S. W. 454.

And in Arkansas & L. R. Co. v. Sanders (1901) 69 Ark. 619, 65 S. W. 428, an action for injury to a horse, suffered in attempting to cross the track in front of an engine, an instruction was given as follows: "The court instructs the jury that if there was any hindrance or impediment in the way. of the horse getting off or across the track at the point from whence he was standing, and the persons in charge of the train might have seen it by ordinary diligence, and they did not stop the train to avoid the injury, or that the horse in his fright would attempt to cross the tracks, and if they failed to stop the train to prevent the injury, if it could have been done, you will find for the plaintiff." The court, in holding such instructions erroneous, said: "There was no hindrance or impediment to free passage over the railroad track by the horse, and, if there had been evidence of such, the railroad company is under no obligation to keep its right of way cleared of obstacles so that animals can pass over and across its track freely. Furthermore, it is not the absolute duty of persons running a train to stop it in order to avoid an injury, even if it can be done. Little Rock & Ft. S. R. Co. v. Trotter (1881) 37 Ark. 593. All the evidence on the subject adduced in the case is to the effect that the train could not have been stopped after the horse came in view of the fireman, who was keeping the watch on that side, and before the horse was struck. Besides, this instruction was confusing to the jury, and for reasons should not have been 23 A.L.R.-11.

given, and was prejudicial, especially

in a case so close as to the facts."

And in Savannah, F. & W. R. Co. v. Rice (1887) 23 Fla. 575, 3 So. 170, it was held that negligence in the management of a train which killed a mule was not shown, where it appeared that the mule, when first seen, was on the side of the road about 200 yards off, with its head turned from the track, and that the engineer at once sounded the alarm whistle and had the brakes put on, but that, when the train got within 200 feet of the mule, he turned to cross the track, and the engine was reversed, but struck the mule, the court saying: "As soon as the mule was seen, the usual precautions to prevent injury to him were adopted. A full stoppage of the train, the mule not being on the track, was not to be expected, and everything short of that seems to have been done. . . . It would be unreasonable to require the same diligence and application of means to avoid collision with animals seen on the side of a track, which would be required when they are on the track, and for the obvious reason that they are not only not directly exposed to collision as the train runs along its course, but that they would be likely, if they moved at all, to go away from the road rather than across it. Unless there was something in the situation or circumstances to lead to a different expectation, it was not negligence not to make an effort to stop the train until the mule turned and got upon the track, and then the effort was made. If it were required that trains should be stopped every time cattle are seen on the side of the track, and before there are indications of danger, railroads running through a country where cattle roam at large would but illy perform the service expected of them by the public. We think the law, as it stood when this cause was tried, imposed no such requirement."

In Sloop v. St. Louis, I. M. & S. R. Co. (1886) 22 Mo. App. 593, where the railroad company was held not liable for the death of sheep and a hog which ran onto the track so near the engine that it could not be stopped in time,