Chicago, R. I. & P. Ry. Co. v. Boyles, 4-7639.

• Decision Date: 21 May 1945
• Docket Number: No. 4-7639.,4-7639.
• Citation: 187 S.W.2d 719
• Parties: CHICAGO, R. I. & P. RY. CO. et al. v. BOYLES.
• Court: Arkansas Supreme Court

Page 719

187 S.W.2d 719

CHICAGO, R. I. & P. RY. CO. et al. v. BOYLES.

No. 4-7639.

Supreme Court of Arkansas.

May 21, 1945.

Appeal from Circuit Court, Perry County; Lawrence C. Auten, Judge.

Action by Elmer Boyles against the Chicago Rock Island & Pacific Railway Company and others, for the killing of a mule. From a judgment for plaintiff, defendants appeal.

Judgment affirmed.

Thos. S. Buzbee and Edward L. Wright, both of Little Rock, for appellants.

G. B. Colvin, of Perry, for appellee.

FRANK G. SMITH, Justice.

A mule belonging to appellee became lodged between the ties of a trestle of appellant railway company near Ledwidge, Perry County. The animal could not extricate itself, all four legs being caught, and in this position it was discovered by a track patrolman of the railway company, Herbert Adams, at approximately 11 p. m. The streamlined Choctaw Rocket passenger train, westbound, arrived shortly thereafter and was flagged by Adams. This train of six cars was carrying between 215 and 225 passengers. Approximately 70 of the passengers were soldiers. The train conductor, other members of the crew, an Army officer, and others, appraised the situation and decided that the only method of removing the mule was to kill him and cut off his legs. At the direction of the Army officer and the conductor, a soldier on the train shot the mule, following which his legs were chopped off with an ax. A number of civilians, soldiers, and sailors assisted the crew in rolling the body of the animal off the trestle.

At the time the mule was discovered by the patrolman all four of his legs were straight down between the ties. The animal was flopping his head back and forth between the north rail and a guard rail so that blood was issuing from his nose and ears.

Suit was instituted on the theory that the employees of the railway company were negligent in procuring the killing of the mule, the allegation being that "said mule was not injured to the extent that it could not have been saved and that it was the duty of the defendants to remove said mule from its situation."

From a verdict and judgment in favor of the owner of the mule is this appeal.

The conductor in charge of the train testified that owing to the situation of the mule, it was his opinion, and that of passengers with whom he advised, that it could not be extricated except by the use of wrecker apparatus, which was not available, and could have only been secured from Little Rock, 34 miles away, and that as much as three hours would have been required for that purpose, and that it was thought that before the expiration of that time the mule would have died in its frantic attempts to extricate itself.

The mule had flailed...