Barnes v. Missouri Pac. R. Co.

• Decision Date: 21 May 1923
• Docket Number: (No. 393.)
• Parties: BARNES v. MISSOURI PAC. R. CO.
• Court: Arkansas Supreme Court

251 S.W. 675

BARNES v. MISSOURI PAC. R. CO.

(No. 393.)

Supreme Court of Arkansas.

May 21, 1923.

Rehearing Denied June 11, 1923.

Appeal from Circuit Court, Ashley County; Turner Butler, Judge.

Action by John K. Barnes against the Missouri Pacific Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

G. P. George and Frank Strangways, both of Hamburg, for appellant.

E. B. Kinsworthy and B. S. Kinsworthy, both of Little Rock, for appellee.

HART, J.

Appellant sued appellee to recover damages for killing his dog, and prosecutes this appeal from an adverse judgment.

It appears from the record that a southbound freight train, running extra through Parkdale, in Ashley county, Ark., upon the afternoon of June 30, 1921, struck a bird dog belonging to the plaintiff and killed it. The plaintiff lived in the town of Parkdale, on the east side of the railroad tracks, and 10 or 15 minutes before the train in question came he crossed over the tracks to the other part of the town. His dog was at home at the time. R. H. Hill was on the west side of the track, and saw the freight train in question hit the dog. He was 100 or 150 yards away, and the dog was not more than 20 feet ahead of the engine when he first saw it. Almost instantly the train hit the dog and rolled it along. After he first saw the dog, it would have been impossible for the engineer to have kept from hitting it. There was quite a lot of people about the depot, and the train struck the dog as it came upon the track from the east side.

According to the testimony of the engineer, he did not see the dog when it was struck by the train. He did not know that the dog had been struck until afterwards. He was looking down the track, but did not see the dog. He had no definite recollection of blowing the whistle as he approached the town, but knows that he always did comply with the regulations of the company, and it had become second nature to him to reach up and blow the whistle as he approached a station. According to the testimony of the plaintiff, the dog was struck about 50 feet from the public crossing, just opposite his house. The track was straight at that point, but the view was obstructed just north of the crossing by seedhouses and box cars.

At the conclusion of the testimony the court directed a verdict for the defendant. We think the testimony was sufficient to overcome the prima facie case in favor of the plaintiff. The train was approaching the station, and it was...