Tarbell, J.:
On the 7th of August, 1867, C. A. Orr brought his action of trespass in the circuit court of the county of Tishomingo, against the Memphis & Charleston Eailroad Company for the recovery of the value of a horse killed by the cars of the latter, on or about the 28th of July, 1867.
The defendant pleaded not guilty, and the cause on this issue came on for trial at the September term, 1868, of said court, when the jury found a verdict for plaintiff, assessing the damages at $200.
W. IT. McKinney, a witness for plaintiff testified, that on or about the 23d day of July, 1867, he saw a cream-colored horse near the railroad track of the Memphis & Charleston Eailroad,. crushed and mangled, from which he died; * * * * * * the horse was worth $200; * * * * * * examined track, and saw tracks of several horses thereon; for some distance the tracks were oil and on the road; nearest to where the horse was found, tracks looked as though the horses had been running; can tell pretty well the speed of horses from indentations of hoofs in the ground; slightly down grade and straight piece of road from the west to where the horse lay; in the day time at that place horses might be seen three or four hundred yards.
C. A. Farris, for plaintiff, testified that on same date, he examined and found horses tracks for some four or five hundred yards from where the horse lay; horses seems to have been feeding, sometimes on, sometimes off the track for one hun[283]*283yards, when they seemed to have trotted about one hundred yards ; then they seemed to have increased their speed until they were in a full run about two hundred fifty or three hundred yards further to where the horse was found; cream-colored horse was about four hundred or five hundred yards from where first saw tracks; forty or fifty yards east of yellow horse, found a grey horse mangled and killed. Defendant here objected to the testimony in relation to the grey horse, and excepted to the rulings of the court allowing it to go to the jury. Witness had never looked from an engine through the head-light, but had been about the road a good many years, and had noticed the trains at night; had noticed the head-light from the side of the track, and thought a horse could be seen from the engine one hundred and fifty to one hundred and seventy yards; had never run an engine, but had been about the trains a good deal; had seen the trains stopped in forty yards. To the testimony of this witness as to the distance a horse could be seen by the head-light, and .in what distance a train could be stopped, defendant objected and excepted to the ruling of the court allowing it.
J. T. Hedgepeth, for plaintiff, testified that the horse was worth $250.
The plaintiff testified that the yellow horse killed was his property.
The engineer of the road and train, testified for defendant, that he had been ten years on the road; about 2 o’clock on the night in question, the cars were running fifteen miles an hour; he saw a horse on the track thirty-five or forty yards ahead of the engine; immediately sounded the signal to set brakes, cut off steam, and blew alarm whistle; did not reverse the engine, as it might injure machinery; had the usual number of brakemen; a train can be stopped in about one hundred and fifty yards when running on level grade at ordinary speed; an object can be seen by the head-light about thirty-five or forty yards; don’t remember, but suppose we had five or six cars; train .could be stopped quicker with a brakeman to each brake and two brakes to each car; a [284]*284brake to the tender and a brakeman to it, aids in stopping; two or three brakemen are the usual number for the number of cars we had; usually have a brake to the tender; did not feel the brakes; can sometimes tell when the brakes are put on from the jar; do not know whether they were put on or not; cannot tell how much quicker, with brakemen to all the brakes and all the brakes on, a train could be stopped.
The fireman of the train testified that he saw horses come on the track; they appeared to be crossing the track, about thirty-five or forty yards ahead of engine ; no brake on this tender; train running at the speed we were running could be stopped in about one hundred and fifty yards; easier to reduce speed than to stop.
Conductor of train testified that he knew the brake on the car he was on was set; train going at usual speed ; cannot be stopped short of one hundred and fifty to two hundred yards.
This is, substantially, all the material testimony in the case.
The following instructions were given for the plaintiff, at his request:
1st. A railroad company is bound by law, to have a sufficient number of faithful and trustworthy employees to manage and control the running of its engines and cars, and if by its failure in any of these respects the injury occurred, the railroad company is responsible.
2d. Negligence may be proved by circumstantial as well as direct testimony.
3d. If the jury believe, from the evidence, that, by the application of all necessary appliances, and a sufficient number of brakemen, the damage could have been avoided, they will find for the plaintiff.
"4th. If the jury believe, from the evidence, that there was carelessness or negligence on the part of the engineer, and that the damage resulted therefrom, they will find for the plaintiff.
5th. That the railroad company should take proper means [285]*285by fences and otherwise, to prevent intrusions upon its track and the destruction of property.
The following instructions were given for defendant:
1st. That the railroad company, in order to prevent injury to stock on its track is bound to exercise only such care and diligence, as a prudent man engaged in the same business, would use to prevent such injury.
2d. That the jury will find for the defendant, unless it is shown by the testimony that defendant or its agents, at the time the horse was killed, were guilty of negligence or carelessness in running its train.
3d. That it devolves upon the plaintiff to prove that the killing of the horse was the result of the misconduct, carelessness or negligence of the agents of the defendant.
4th. That the defendant was bound to use, in running the train, only ordinary and reasonable care and prudence, to prevent injury to stock upon the track, and was not bound to employ an extraordinary and unusual number of brakemen or other appliances.
5th. That a railroad company is not bound to fence its road to prevent the destruction of stock.
The jury having found for plaintiff, the defendant moved for a new trial on the following grounds:
1st. Because the jury found contrary to law.
2d. Because the jury found contrary to the evidence.
3d. Because of the improper instructions given by the court in behalf of the plaintiff, which motion was overruled.
To the instructions of the court to the jury, for the plaintiff, and to the decision of the court overruling the motion for a new trial, the defendants excepted, and brought this writ of error. The following errors are assigned:
1st. The court erred in permitting the testimony of C. Davis in reference to a grey horse not involvecl in this suit to go to the jury.
2d.
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Tarbell, J.:
On the 7th of August, 1867, C. A. Orr brought his action of trespass in the circuit court of the county of Tishomingo, against the Memphis & Charleston Eailroad Company for the recovery of the value of a horse killed by the cars of the latter, on or about the 28th of July, 1867.
The defendant pleaded not guilty, and the cause on this issue came on for trial at the September term, 1868, of said court, when the jury found a verdict for plaintiff, assessing the damages at $200.
W. IT. McKinney, a witness for plaintiff testified, that on or about the 23d day of July, 1867, he saw a cream-colored horse near the railroad track of the Memphis & Charleston Eailroad,. crushed and mangled, from which he died; * * * * * * the horse was worth $200; * * * * * * examined track, and saw tracks of several horses thereon; for some distance the tracks were oil and on the road; nearest to where the horse was found, tracks looked as though the horses had been running; can tell pretty well the speed of horses from indentations of hoofs in the ground; slightly down grade and straight piece of road from the west to where the horse lay; in the day time at that place horses might be seen three or four hundred yards.
C. A. Farris, for plaintiff, testified that on same date, he examined and found horses tracks for some four or five hundred yards from where the horse lay; horses seems to have been feeding, sometimes on, sometimes off the track for one hun[283]*283yards, when they seemed to have trotted about one hundred yards ; then they seemed to have increased their speed until they were in a full run about two hundred fifty or three hundred yards further to where the horse was found; cream-colored horse was about four hundred or five hundred yards from where first saw tracks; forty or fifty yards east of yellow horse, found a grey horse mangled and killed. Defendant here objected to the testimony in relation to the grey horse, and excepted to the rulings of the court allowing it to go to the jury. Witness had never looked from an engine through the head-light, but had been about the road a good many years, and had noticed the trains at night; had noticed the head-light from the side of the track, and thought a horse could be seen from the engine one hundred and fifty to one hundred and seventy yards; had never run an engine, but had been about the trains a good deal; had seen the trains stopped in forty yards. To the testimony of this witness as to the distance a horse could be seen by the head-light, and .in what distance a train could be stopped, defendant objected and excepted to the ruling of the court allowing it.
J. T. Hedgepeth, for plaintiff, testified that the horse was worth $250.
The plaintiff testified that the yellow horse killed was his property.
The engineer of the road and train, testified for defendant, that he had been ten years on the road; about 2 o’clock on the night in question, the cars were running fifteen miles an hour; he saw a horse on the track thirty-five or forty yards ahead of the engine; immediately sounded the signal to set brakes, cut off steam, and blew alarm whistle; did not reverse the engine, as it might injure machinery; had the usual number of brakemen; a train can be stopped in about one hundred and fifty yards when running on level grade at ordinary speed; an object can be seen by the head-light about thirty-five or forty yards; don’t remember, but suppose we had five or six cars; train .could be stopped quicker with a brakeman to each brake and two brakes to each car; a [284]*284brake to the tender and a brakeman to it, aids in stopping; two or three brakemen are the usual number for the number of cars we had; usually have a brake to the tender; did not feel the brakes; can sometimes tell when the brakes are put on from the jar; do not know whether they were put on or not; cannot tell how much quicker, with brakemen to all the brakes and all the brakes on, a train could be stopped.
The fireman of the train testified that he saw horses come on the track; they appeared to be crossing the track, about thirty-five or forty yards ahead of engine ; no brake on this tender; train running at the speed we were running could be stopped in about one hundred and fifty yards; easier to reduce speed than to stop.
Conductor of train testified that he knew the brake on the car he was on was set; train going at usual speed ; cannot be stopped short of one hundred and fifty to two hundred yards.
This is, substantially, all the material testimony in the case.
The following instructions were given for the plaintiff, at his request:
1st. A railroad company is bound by law, to have a sufficient number of faithful and trustworthy employees to manage and control the running of its engines and cars, and if by its failure in any of these respects the injury occurred, the railroad company is responsible.
2d. Negligence may be proved by circumstantial as well as direct testimony.
3d. If the jury believe, from the evidence, that, by the application of all necessary appliances, and a sufficient number of brakemen, the damage could have been avoided, they will find for the plaintiff.
"4th. If the jury believe, from the evidence, that there was carelessness or negligence on the part of the engineer, and that the damage resulted therefrom, they will find for the plaintiff.
5th. That the railroad company should take proper means [285]*285by fences and otherwise, to prevent intrusions upon its track and the destruction of property.
The following instructions were given for defendant:
1st. That the railroad company, in order to prevent injury to stock on its track is bound to exercise only such care and diligence, as a prudent man engaged in the same business, would use to prevent such injury.
2d. That the jury will find for the defendant, unless it is shown by the testimony that defendant or its agents, at the time the horse was killed, were guilty of negligence or carelessness in running its train.
3d. That it devolves upon the plaintiff to prove that the killing of the horse was the result of the misconduct, carelessness or negligence of the agents of the defendant.
4th. That the defendant was bound to use, in running the train, only ordinary and reasonable care and prudence, to prevent injury to stock upon the track, and was not bound to employ an extraordinary and unusual number of brakemen or other appliances.
5th. That a railroad company is not bound to fence its road to prevent the destruction of stock.
The jury having found for plaintiff, the defendant moved for a new trial on the following grounds:
1st. Because the jury found contrary to law.
2d. Because the jury found contrary to the evidence.
3d. Because of the improper instructions given by the court in behalf of the plaintiff, which motion was overruled.
To the instructions of the court to the jury, for the plaintiff, and to the decision of the court overruling the motion for a new trial, the defendants excepted, and brought this writ of error. The following errors are assigned:
1st. The court erred in permitting the testimony of C. Davis in reference to a grey horse not involvecl in this suit to go to the jury.
2d. The court erred in permitting Farris to testify as to his opinion that a horse could be seen on the track of the road, [286]*286one hundred and fifty or seventy yards from the engine in the night.
3d. The court below erred in permitting said Davis to testify what was the shortest distance in which a train can be stopped.
4th. The court below erred in overruling appellant’s motion for a new trial.
We have carefully examined the record, including the evidence, and the proceedings on the trial, as well as the authorities. There is no brief on the part of defendant in error among the papers in the case. The cause appears to have been, in some respects, thoroughly tried, and we regret to discover several errors in the court below, besides the more important mistake of overlooking the true theory of these prosecutions. This action is governed by art., 43, sec. 8, ch. 35, p. 299 of the Code, which is as follows : “ Every railroad company shall be liable for all damages which may be sustained by any person, in consequence of the neglect or mismanagement of any of its agents, engineers, or clerks, or for the mismanagement of its engines,” and is determinable by the rules laid down in Eaiford v. Mississippi Central Eailroad Company
In the circumstances of the accident in this case as proved. by plaintiff below, we fail to see any evidence of neglect, carelessness, or mismanagement on the part of the defendant or its agents or servants, or evidence from which neglect, carelessness, or mismanagement could be inferred, while on the other hand, the witnesses for the defendant testified positively to the watchful care and prudence of those in charge of the train at the time of the damage.
With reference to the first and second assignments of error, [287]*287embracing tbe objections to the testimony of the witness,, Farris, so much depends upon the connecting, attending- and surrounding- circumstances, and through these, upon the judgment and discretion of the court on the trial, and as these are questions of minor importance and influence, we refrain from the expression of an opinion upon them, as wholly unnecessary.
The third assignment is well taken. The question was not in this case as to the shortest distance, unconditionally, by extraordinary appliances, number of employees and exertions, in which a train could be stopped, but in what distance, by the usual number of assistants and proper means, in the exercise of ordinary care, skill and prudence, the train could be stopped, with safety to passengers, cars, machinery and track.
To so much of the fourth assignment as refers to the first instruction given for plaintiff, we observe that the instruction being a correct legal proposition, and as the record must be sent back at all events on other grounds, an expression of opinion upon this, as upon some other points, is withheld, because of no practical value in the case. The other cause alleged in the fourth assignment is a substantial error, the fifth instruction for plaintiff being in conflict with all the authorities. Vide V. & J. R. R. Co. v. Patton, 31 Miss., 190; M. & C. R. R. Co. v. Miller, 40 Miss., 48; N. O., J. & G. N. R. R. Co. v. Enochs, Opinion Book; M. & C. R. R. Co. v. Blakeney,* Opinion Book; 2 Mich. R., 259, and cases therein cited. Having instructed the jury for the plaintiff that railroad companies are bound to prevent intrusions upon their tracks by means of fences, or otherwise, the court instructed the jury for defendant that they are not bound to prevent intrusions, etc. These instructions are not only irreconcilable, but that they should have been thus given is unaccountable. The rights of parties ought not to be thus jeopardized or trifled with. 40 Miss., 48; 41 Miss., 601.
Tested by the authorities, we make the following summa[288]*288ry of this case: 1st. That the third and fifth instructions for the plaintiff below were erroneous; 2d. That the instructions for the defendant, as a whole, were substantially correct; and 3d. That the verdict was not warranted by the testimony.
So long as railroad companies on the one hand, and owners of stock on the other,'are not required, the one to fence their roads to prevent intrusions, or the other to restrain their stock, the respective rights of these parties appear to'be defined upon principles alike just to both. N. O. J. & G. N. R. R. v. Enochs, Opinion Book; M. & C. R. R. Co. v. Blakeney, Opinion Book; and cases cited.
The judgment of the court below is reversed, and the cause remanded.
Supra, p. 218.