DISSENTING OPINION. Appellants, plaintiffs in the court below, are in the cattle business, and at the time in question had a three-hundred acre pasture immediately adjacent to the railroad right of way, the fence line running along the right of way. In this pasture appellants had forty or fifty head of cattle. The railroad was located upon an embankment at this point and the right of way was higher than the adjoining pasture, so that the rain water falling on the right of way there would and did run off onto the pasture and into a small pool located inside the pasture fence, but near the railroad right of way.
On a Friday in June the railroad company sprayed its right of way and embankment opposite this pool with a poisonous liquid sometimes called a weed killer, the purpose being, according to the section foreman, to promote the drainage of the right of way by killing the grass and weeds thereon. It rained on the Sunday next thereafter, and one of the witnesses, who is not disputed, said that it rained on another day in the same week. On the following Tuesday or Wednesday six head of plaintiffs' cattle were found dead, three of them at the pool. Appellants called the county agent and a veterinarian, and the appearance of the dead animals being such as to suggest poisoning, a part of the stomach of one of them was taken, and also some of the contents of the pool and some of the grass along the course of the rain water from the right of way to the pool; and these were carefully sealed and sent to the state chemist. The state chemist testified, without contradiction, that the three materials sent him each contained arsenic in a sufficient quantity to be likely to produce the death of cattle. Plaintiffs, by their evidence, showed that they had put out no poison in the vicinity, and there is no sort of suggestion in the record that it could have come from anywhere except *Page 157 from the poisonous substance used on the right of way. All the above facts are undisputed; nevertheless the jury returned a verdict for the railroad company, and the majority of this court are affirming the verdict on the ground that "there is ample evidence to justify the jury in finding that the railroad company could not have reasonably foreseen injury to appellants' property, including their cattle."
What is it here that the railroad could not have reasonably foreseen as something likely to happen? We start out with the admission by the railroad company that it was using a poisonous substance powerful enough to kill grass and weeds. This is enough to pose the proposition that what was being used was a dangerous chemical, and nothing is better settled than the rule of law that one who in the conduct of his business uses such a chemical is bound to know the nature of the constituents and general characteristics of the substance so used. American Sand Gravel Co. v. Reeves, 168 Miss. 608, 151 So. 477. The railroad company could reasonably forsee that rain was likely to fall, an anticipation against which care is taken every hour in nearly every week of life, especially where rainfalls are frequent, as is the case in this geographical territory. The railroad company could foresee that rain water, when it fell on the higher ground of its right of way, would run downwards upon the lower ground of this pasture and across to this pool, located nearby — as it did do according to the undisputed evidence. As already mentioned, the very purpose of the spraying of the poison was to aid drainage from the railroad right of way. The poison being sprayed so that it fell loosely upon the grass and weeds and some of it on the ground, the railroad company could reasonably have foreseen that the rain and the rain water would gather some of the poison and carry it along as it drained onto the adjoining pasture. The railroad company could reasonably have foreseen that the cattle in the pasture would eat of the grass along which the rain water drainage ran and drink of the pool *Page 158 into which that water emptied; and it is undisputed that the grass and the water contained arsenic, sufficient to be likely to kill cattle, and it is undisputed that the stomach of one of the dead cattle did contain arsenic of that amount.
The question is, therefore, again put: What then was there here anywhere that the railroad company could not have reasonably foreseen as something likely to happen, and all this according to the usual course of the very nature of the situation involved? Arsenic is one of the most persistent, as well as one of the most deadly of poisons, one of its known characteristics being that its potency survives far beyond any such period as when the next rain shall come, and, as stated, the facts are undisputed, — the railroad company introduced no testimony, and there is not a word of evidence by way of avoidance of what was shown by appellants. Where, then, is the ample evidence, of which in general terms the majority speaks, to justify the jury in their verdict for the railroad company? There is not only an absence of ample testimony to that effect, but an absence of any whatever. The verdict is contrary to every reasonable probability and represents a gross miscarriage of justice, which it is the constitutional duty of this court to correct.
This state is now seeking to encourage and promote the raising of cattle and of a better class of cattle, but here is an announcement by a majority of the state's highest court that a railroad company operating hundreds of miles of railroad in the state, may spray its rights of way alongside cattle pastures with arsenic poison and allow the drain of this poison to flow into the adjoining pastures, killing the cattle there and yet not be liable. Fortunately, few juries will accept such a view, and hope may be taken in the doubt that the bench and bar will subscribe to it.
McGehee, J., also dissenting. *Page 159