Central Railway Co., of Arkansas v. Lindley

• Decision Date: 18 November 1912
• Citation: 151 S.W. 246,105 Ark. 294
• Parties: CENTRAL RAILWAY COMPANY OF ARKANSAS v. LINDLEY
• Court: Arkansas Supreme Court

151 S.W. 246

105 Ark. 294

CENTRAL RAILWAY COMPANY OF ARKANSAS v. LINDLEY

Supreme Court of Arkansas

November 18, 1912

Appeal from Yell Circuit Court, Dardanelle District; Hugh Basham Judge; affirmed.

STATEMENT BY THE COURT.

P. C Lindley sued the Central Railway Company of Arkansas in the circuit court, for $ 750, alleging that on the 15th of October, 1911, the defendant's servants engaged in running a motor car and train from Ola to Plainview, so negligently ran and operated the car and train as to cause two mares to be killed and one to be injured. The answer denied negligence. The facts are substantially as follows:

The railway company operated a motor car from Plainview to Ola for the purpose of carrying passengers. It was built with a deck with springs, and its capacity is six or eight passengers. The engine is a small type motor, slow speed, and is on the deck of the car. One man runs the car. On the 15th day of October, 1911, A. T. Reed, one of the servants of the company, ran the car from Plainview to Ola and came back with a passenger. He arrived at Ola about 5 o'clock in the afternoon and started back about 7 o'clock P. M. He had one passenger, who was also an employee of the railway company. On his return, when within about 150 yards of bridge number 9, he discovered three horses on the bridge. The bridge or trestle was about ninety feet long, and the horses were on the end next to the approaching car. Reed was not able to extricate the animals from the bridge, and abandoned his car and walked on to Plainview which was about two miles distance.

P. C Lindley, the plaintiff, testified:

The next morning after the horses had become entangled in the bridge, I learned of the occurrence and went to the scene of the accident. Two of the horses were found dead near the bridge, and I recognized them as my horses. Another one was found on the right-of-way near by. Its feet and belly were badly scarred. It was also my horse. I examined the railroad track and found my horses' tracks on the railroad for about 300 or 400 yards back from the bridge. The tracks of my horses were going towards the bridge, and when I got in about 150 or 200 feet of the bridge it looked as if the tracks were plainer. The tracks appeared as if the horses were running faster, or at least that they had struck the ties and in some places had torn pieces or splinters off of them. I have often had occasion to notice the tracks of horses going at a rapid rate of speed and tracks of horses walking along. The tracks as they got nearer to the bridge indicated that the horses were running faster. The ties on the railroad track where the horses went on the bridge were scarred and torn up, as if the horses were running. The ties were torn up for about thirty or thirty-five feet. The plaintiff also testified as to the value of the horses that were killed and the amount of damage to the one that was injured.

Another witness for the plaintiff testified that he lived about one mile from Ola and at a distance of about 250 feet from the railroad track; that he heard the car pass on its return to Plainview and heard some persons on the car hallooing. He does not think the motorcar was going faster than it usually did, and said that its usual speed was fourteen or fifteen miles per hour. On cross examination, he stated that he heard the hallooing about two miles from the bridge where the mares were killed and injured, and does not think it was loud enough to alarm the horses at the bridge.

Another witness testified that he lived about 200 yards from the railroad and something over a quarter of a mile from the bridge where the mares were killed and injured. He heard the motor car go to Ola and back. On the return trip he heard some people on the car talking and laughing.

A. T Reed, for the defendant, testified that he ran the motor car on the day in question. He says he was keeping a sharp lookout for persons and objects on the track, and did not discover the animals until they were on the bridge; that he was going at the rate of eight miles per hour when he discovered the horses; that he had no light on the car, but from the starlight he could see about 150 yards in front of the car; that he was looking straight ahead, keeping a close lookout for anything that might be in front, and that he was about 150 yards from the bridge when he saw the animals on it; that he shut off his power and let his car drift within 150 feet of the bridge; that he found it was impossible to do anything towards extricating the animals.

There was a verdict for the plaintiff in the sum of $ 300, and from the judgment rendered the defendant has appealed to this court.

Judgment affirmed.

Hill, Brizzolara & Fitzhugh, for appellant.

1. There was no proof that the horses were injured by appellant's motor car. 42 Ark. 123; 56 Id. 549; 60 Id. 187; 85 Id. 53.

2. There was no negligence of the trainmen. 36 Ark. 607; 37 Id. 593. The statutory presumption of negligence was overcome by testimony uncontradicted. 78 Ark. 234; 67 Id. 514.

3. A motor car is not a train. Kirby's Dig., § 6607; 91 Ia. 81; 153 Mass. 112; 173 Id. 177; 163 Id. 523; 156 Id. 13.

Sellers & Sellers, for appellee.

1. A motor car is a "train." Kirby's Dig., § 6707; 28 A. & E. Enc. Law, 444, note 4; 65 Ark. 235; 57 Id. 140; 96 Id. 243.

2. This suit is brought under Acts 1911, p. 275, for failure to keep a lookout. The railroad is liable for all damages from neglect to keep a proper lookout. The verdict is sustained by ample evidence, and there is no error in the court's charge.

OPINION

HART, J., (after stating the facts).

Counsel for the defendant say this action is based on the lookout statute, making it the duty of all persons running trains in this State to keep a constant lookout for persons and property on the track, and contends that a motor car is not a train within the meaning of the statute. In the case of Little Rock & Fort Smith Ry. Co. v. Blewitt, 65 Ark. 235, 45 S.W. 548, the court held that an engine is a train within the meaning of the statute. See also Railway Co. v. Taylor, 57 Ark. 136, 20 S.W. 1083. The motor car in question was run by the defendant company for the purpose of carrying passengers over its line of railroad, and, we think, was a train within the meaning of the statute.

2. It is next contended that the court erred in refusing to give instruction numbered "A," asked by the defendant. It is as follows:

"A. The court instructs the jury that if they find from the evidence that the horses, whose death and injury are sued for, were found dead or injured so near the roadbed of the defendant company as to indicate that they were thrown there by a passing train of the defendant company, then the presumption is that the killing or wounding was done by the defendant's train, and that it resulted from want of care,...