
    Jackson Electric Railway, Light & Power Company v. Arthur N. Waycaster.
    [46 South., 135.]
    Street Railway. Operation. Dog hilled on trade. Liability. Case.
    
    An electric street railway company is liable for the killing of a dog,, run over by its trolley car on a public street in the suburbs of a city, where the car, rapidly moving, followed the dog running down hill along the center of the track in front of the car and in-full view for one hundred and fifty yards, the employes of defendant simply ringing the bell, but doing nothing to get the car well under control until too late to save the animal.
    Erom the circuit court of, first district, Hinds co-unty.
    Hon. Wiley H. Pottee, Judge.
    Waycaster, appellee, was plaintiff in the court below, and the-electric railway company, appellant, defendant there. Erom a judgment for $125 in plaintiff’s favor, defendant appealed to-the supreme court.
    Plaintiff sued the defendant for killing his dog. The evidence disclosed that the dog was seen by the defendant’s motorman in charge of an electric car, when about seventy-five yards-distant, the animal trotting along upon the railway track on a public street in the suburbs of Jackson; that the motormau sounded his gong, or bell, but the dog paid no attention thereto-continuing to run along the track ahead of the moving car for about one hundred and fifty yards. The car was going down grade, the track being wet, on a damp morning, and the motorman, when within half a car’s length of the dog, attempted for the first time to prevent running over the animal, but was then unable to prevent the accident It was shown ifi. evidence that a motorman could have stopped the car in one and a half or two cars’ length, under ordinary conditions. The case was tried before the circuit judge, a jury being waived by the parties.
    
      Williamson, Wells & Peyton, for appellant.
    The only difference between the present case and that of Motile, etc., B. B. Co. v. Holliday, 79 Miss., 294, 30 South., 820, is that in that case the engineer of the railroad company before the accident, did not see the dog, being engaged in working his engine, while in this case the motorman saw the dog and did everything in his power to avoid the accident. And in this present case, it was shown in evidence that the dog was wandering along the railway track, unaccompanied by appellee, and fully half a mile from appellee’s home, and had been frequently on the track before in this vicinity. There was no cut or epabankment to prevent the animal from leaving the track. The motorman is shown to have constantly sounded his gong or bell as the car sped along. If the animal had turned just a few feet to the side, either way, the accident would not have happened.
    In the Holliday case, supra, Calhoon, J., speaking for the court, said: “We think that this court, on the liability of railroad companies for killing dogs, went to the farthest limit, in Jones v. Bailroad Company, 75 Miss., 970, 23 South., 358. We cannot hold a railroad company liable for running over a stray dog, under the facts in this record. The dog is one of the most intelligent of the inferior animals, alert, agile, quick, and might well be supposed to avoid such danger, which cannot be said of horses, mules, horned cattle or hogs.” -It is true that in the same opinion the learned justice said that the above observations would not apply where a dog was purposely run down, or where the animal could have been seen in time for prevention of the injury. But in the case at bar the dog was not purposely run down. The motorman had Ihe right to presume that the animal would leave the track, and, on finding that it did not, he applied the ear-brake promptly. But for the wet and slippery rails, the car would not have run over the animal.
    •The car was running in a very thinly settled -suburb of the city, where there were no residences anywhere near, there being a travelled roadway on either side of the track. In fact, the car was running down grade, propelled only by its own momentum at the time and shortly before the injury. The court below should have rendered judgment against appellee. Kansas, etc., R. R. Oo. v. Hawlcins, 82 Miss., 209, 3d South., 323; Jones v. Railroad Oo., 75 Miss., 970, 23 South., 358.
    As to the amount of damages awarded there was no evidence to warrant a finding for $125, The appellee, owner of the dog testified that he had been offered $100 for the dog, and that he would not have sold the animal for $200, the sum demanded. ■There was some testimony to the effect that a registered dog had sold in the city for $85, and another for $150. Appellee’s dog, however, was not registered.
    
      Watlcins & Wathins, for appellee.
    It is well established that if a dog is killed by a locomotive or car on a railway track, the railroad company is liable in damáges if its employes, at or just preceding the time of injury,' failed to use the care which persons of ordinary prudence would ordinarily use under the circumstances. And whether or not the omission of various precautions will or will not amount to negligence, will depend upon the circumstances of the particular case. In the present case, the court below decided that the failure of the appellant’s motorman to decrease the speed of the rapidly-moving car, until within half a car’s length of the dog, was gross negligence. And, as the case was tried before tbe court, a jury being waived, this court will not disturb tbe judgment St. Louis, etc., B. B. Co. v. Hauks, 78 Tex., 300, 11 L. E. A., 383, 14 S. W., 691; Marshall v. Dallas, etc., B. B. Co. (Tex. Civ. App.), 73 S. W., 63; Citizens’ Bapid Transit Co. v. Dew, 100 Tenn., 317, 45 S. W., 790, 40 L. E. A., 518, 66 Am. St. Eep., 754; Meisch v. Bochester, etc., Co., 72 Hun (N. Y.), 604; West Chicago, etc., B. B. Co. v. Klecha, 94 111. App., 346.
    Learned counsel for appellant rely upon tbe case of Mobile, etc., B. B. Co. v. Holliday, 79 Miss., 294, 30 South., 820, to secure reversal, but there is a strong distinction and line of demarcation between tbe facts in that case and in tbe one at bar. In tbe Holliday case, tbe dog was billed by a locomotive pulling a heavy freight train, and bad just passed a railroad station some three-quarters of a mile back; and, as the train was beginning to go up grade, tbe engineer necessarily bad to see to tbe engine’s lubricators and other matters pertaining to tbe engine, taking up about three or four minutes, in which time tbe train covered about a mile; and, as tbe fireman was engaged in firing, neither engineer nor fireman saw tbe dog which was run over and killed while tbe engineer and fireman were thus engaged in-their necessary duties. But in tbe case at bar, it appears that tbe motorman saw tbe dog upon tbe track at least fifty yards in front of tbe moving car; that be- did nothing to check tbe speed of tbe car; that tbe dog continued to run along tbe track for a considerable distance, evincing no intention of leaving tbe track; and paying no heed to tbe sounding of the gong or bell of tbe car or to tbe shouts of the motorman. Not until tbe car was almost upon tbe animal did tbe motorman attempt to stop tbe car, although it was known to him that, under tbe most favorable circumstances, tbe car, after having attained its then speed could not well be stopped within a distance of a car’s length.
    Tbe case of Jones v. Illinois, etc., B. B. Co\, 75 Miss., 970, 23 South., 358, cited by counsel for appellant, is not authority here, for tbe question involved in that case was, whether or not the injury to the animal was attributable to the speed of the train, and this question was one of fact for the jury’s determination.
    There is a distinction between the degree 'of care to be exercised in the handling and operation of a railroad train propelled by steam and the operation of a street-car propelled by electricity. In the case of a train propelled by steam, the momentum is much greater and the train much heavier of the two and the train’s speed is not usually developed in passing through crowded highways, and when its speed is developed a considerable distance is required before a stop can be made. On the other hand, a street-ear, because of its lighter weight, and its powerful brake, can be easily and quickly stopped. It it nearly always operated through crowded city streets, where persons are often crossing the car-track and where the car’s passage is sometimes blocked by wagons and drays. It is made to be checked suddenly, whether at the hail of an intending passenger or because of objects or persons being upon the track immediately in front of the car. Hence, whatever may be the rule in regard to the care necessary as to engineers of trains, the care, necessary upon the part of a motorman of an electric street-car should be such as to guarantee to the public of our crowded cities the highest degree of protection at all times.
   Calhoon, J.,

delivered the opinion of the court*

This record presents a recovery of damages against the appellant, operating a trolley car line, for killing a dog, and it comes here from the finding of the circuit judge, who sat by agreement, the jury being waived, to try the facts as well as the law. The judge gave judgement for the plaintiff, and we do not think his conclusion should be disturbed as to the value of the animal. It was manifestly a very valuable dog, with a high reputation as a hunter.

Under the authorities we think the judge was also right on the law of the case as applied to the facts. This is a widely different case from that of Mobile, etc., R. R. Co. v. Holliday, 79 Miss., 294, 30 South., 820. There the killing was done by a locomotive pulling a heavy freight train in an open prairie three-fourths of a mile from a station and where the animal was not seen by the engineer or fireman; they both being engaged in necessary matters about their engine. It is expressly there stated that the observations of that opinion do not apply where a dog was purposely run down, or where the killing was the result of gross negligence. Kansas City, etc., R. R. Co. v. Hawkins, 82 Miss., 209, 34 South., 323, while it refers to the movements of steam railroad trains, is more similar to the case at bar; but even it is not so strong as the one before us. Here the killing was done under circumstances, as the court below believed, showing that, on a public street in the suburbs of the city of Jackson, going down hill on a wet day, the trolley car was following this dog in the center of the track for one hundred and fifty yards. It is true the bell was ringing all the time; but it is also true that there was no action taken to get the car well in hand, so as to permit of promptly stopping it, until it was nearly on the dog, when there was a vigorous effort to stop, but which came too late.

On the whole case, we see no reason to interfere with the result below. The authorities will be found in the briefs of counsel.

Affirmed.  