Davis v. Porter

• Decision Date: 15 May 1922
• Docket Number: 369
• Citation: 240 S.W. 1077,153 Ark. 375
• Parties: DAVIS v. PORTER
• Court: Arkansas Supreme Court

240 S.W. 1077

153 Ark. 375

DAVIS v. PORTER

No. 369

Supreme Court of Arkansas

May 15, 1922

Appeal from White Circuit Court; J. M. Jackson, Judge; reversed.

STATEMENT OF FACTS.

Appellee sued appellant to recover damages for the alleged negligent killing of a Red Poll bull by one of appellant's passenger trains.

Upon the part of appellee it was shown that the body of the bull was found near the depot platform of the road at Jasamine White County, Ark. The bull belonged to appellee, and had been turned loose with a chain around its neck fastened to its left front foot. The lower jaw of the bull was knocked off and its hips were skinned up.

E. J Spruell, a locomotive fireman, was the principal witness for the appellant. According to his testimony, he was fireman on the passenger train which struck the bull in question and killed it. While the train was running through Jasamine which is a flag station, the fireman looked back to see if there were any signals given to stop the train. He saw the bull, which was walking toward the train. Just after he saw the bull it got close enough for the steps of the third coach to hit it. The animal was struck by the passenger steps on the fireman's side of the train. It would not have been possible to have stopped the train after the fireman first saw the bull. The train was running slowly at the time.

According to the testimony of the conductor of the train, he did not see the bull killed and first knew of the accident when he saw the steps on the front end of the rear coach broken and split up. This was on the fireman's side of the train. There was some hair and a little blood on the steps.

The jury returned a verdict for appellee, and to reverse that judgment appellant prosecutes this appeal.

Judgment reversed and cause remanded.

Thos. S. Buzbee, H. T. Harrison and C. L. Johnson, for appellant.

The testimony of the fireman and engineer overcomes the statutory presumption of negligence, and the case should be reversed. The case is controlled by Railway v. Landers, 67 Ark. 514-516, and Lane v. Railway, 78 Ark. 234-237.

No brief for appellee.

OPINION

HART, J. (after stating the facts).

The only ground urged for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict. In this contention we think counsel are correct. The statutory presumption of negligence arising from the killing of the bull by the operation of the train was overcome by the evidence of the fireman and the conductor. It may be...