Johnson v. Stewart

• Decision Date: 14 March 1896
• Citation: 34 S.W. 889
• Parties: JOHNSON et al. v. STEWART et al.
• Court: Arkansas Supreme Court

Page 889

34 S.W. 889

JOHNSON et al. v. STEWART et al.

Supreme Court of Arkansas.

March 14, 1896.

Appeal from circuit court, Pulaski county; Wilbur F. Hill, Special Judge.

Action by Stewart, Kelly & Co. against Johnson & Fordyce, receivers of the City Electric Street-Railway Company, for the value of a horse killed by one of defendants' electric cars. From a judgment for plaintiffs, defendants appeal. Reversed.

Rose, Hemingway & Rose, for appellants. Ratcliffe & Fletcher, for appellees.

WOOD, J.

This is an appeal from a judgment for damages against the appellants, as receivers of the City Electric Street-Railway Company, for the negligent "running down" of a team in the city of Little Rock. The defense was the contributory negligence of appellees in allowing the team to be loose upon the streets. The proof upon this point was detailed by a witness as follows: "It was accustomed to tie the horse to the dashboard of the wagon to which he was harnessed, by tightening the reins until the traces were slack, and the horse could not move forward without pulling the wagon by his mouth. On the night in question, it was tied in the usual manner at the depot." While the driver was at the train, looking for the mail, the horse strayed off, the witness not knowing how he got loose, and went upon the track of the street railway, and was killed by an electric car. The facts were undisputed, but fair-minded men, of reasonable intelligence, might very well differ as to whether the method of fastening in proof was proper, if it, indeed, was fastening at all; and therefore the question as to whether appellees were negligent in pursuing that method, and, if so, as to whether such negligence contributed proximately to the injury complained of, was for the jury to pass upon, under proper instructions. Railroad Co. v. Stout, 17 Wall. 663; Thomp. Neg. 1236; Railroad Co. v. Van Steinburg, 17 Mich. 99; Carsley v. White, 21 Pick. 256; Rindge v. Inhabitants of Coleraine, 11 Gray, 157.

Appellants asked the following: "You are instructed that, even should you find that defendants' employé was negligent, yet if you should also find from the evidence that the plaintiffs' employé, to whom had been intrusted the care of the team, was likewise guilty of negligence, and that such negligence directly contributed to cause the injuries complained or, your verdict shall be for the defendants, unless you further find that the defendants' employé in charge of the car became aware of the negligence of the plaintiffs' servants in time to have avoided injuring the team, by the exercise of proper care, and failed to use such care." The court refused this, but modified it by inserting, after the words "became aware of the negligence of the plaintiffs' servants," the following, "or might have become aware thereof by the exercise of reasonable care," and gave it as modified, over appellants' objection. The request should have been granted without modification. It was in accord with the rule of contributory negligence announced by this court in several cases. Harvey v. Rose, 26 Ark. 3; Railway Co. v. Freeman, 36 Ark. 41; Bauer v. Railway Co., 46 Ark. 399; Railway Co. v. Cavenesse, 48 Ark. 124, 2 S. W. 505, cited in brief for appellants.

It is contended, however, for appellees, that a different rule obtains as to street railways, for the reason that it is the duty of those in charge of a street car, and particularly of the driver, motorman, or gripman, to exercise ordinary care and diligence to ascertain whether the track ahead is clear, in order to avoid striking persons or objects upon or near the same. Booth, St. Ry. Law, § 306. And it is said that prior to the act of April 8, 1891, no such duty was imposed upon railroads as to persons and live stock upon their tracks, and hence the difference in the rule. Counsel are mistaken in this, for prior to the decision of this court in Railway Co. v. Kerr, 52 Ark. 162, 12 S. W. 329, and the act of 1891, it was the duty of railroads to "use all reasonable efforts to avoid harming an animal after it was discovered, or might, by proper watchfulness, have been discovered, on or near their track." Railway Co. v. Holland, 40 Ark. 336; Railway Co. v. Finley, 37 Ark. 562. The act of 1891, so far as domestic animals was concerned, only had the effect to declare the law as it was before the decision of Railway Co. v. Kerr, supra, overruling former cases. As to persons going upon a railway track not at a crossing, they were regarded as trespassers, and it was not the duty of railroads to keep a lookout for them, and they were guilty of no negligence in failing to do so. Since the passage of the act of 1891, railroads are guilty of negligence if they fail to keep a constant lookout for persons as well as property upon their tracks. This statute (1891; and Sand. & H. Dig. § 6207), it will be observed, imposes upon railroads practically the same duty as was imposed by the common law upon street-railway companies, namely, to keep a lookout for persons and property upon their tracks; and it is unnecessary for us to consider whether the term "railroad," as used in the act, was intended to include "street railways." It may be conceded that a like principle is now applicable to both; but neither the commonlaw duty of street railways nor the statutory duty of railroads to keep a constant lookout for persons or property upon their tracks abrogates the cardinal doctrine of contributory negligence.

The modification, if approved, would virtually rehabilitate the old case of Davies v. Mann, 10 Mees. & W. 546, which ignores the doctrine of contributory negligence, and teaches the exploded heresy of comparative negligence. This case was cited with approval in Railway Co. v. Finley, supra, relied upon by counsel for appellee. But in that case the plaintiff was not guilty of any contributory negligence, and the approval of the principle announced in Davies v. Mann was not necessary...