Favre v. Medlock, 4-8426.

• Decision Date: 16 February 1948
• Docket Number: No. 4-8426.,4-8426.
• Citation: 208 S.W.2d 439
• Parties: FAVRE v. MEDLOCK.
• Court: Arkansas Supreme Court

Page 439

208 S.W.2d 439

FAVRE v. MEDLOCK.

No. 4-8426.

Supreme Court of Arkansas.

February 16, 1948.

Appeal from Circuit Court, Conway County; Audrey Strait, Judge.

Action by Hays Medlock against Carl Favre for damages when truck driven by defendant killed two work horses belonging to plaintiff, wherein defendant cross-complained for damage to his truck. From an adverse judgment, defendant appeals.

Judgment affirmed.

Guy H. Jones, of Conway, for appellant.

J. W. Johnston and Carroll W. Johnston, both of Morrilton, for appellee.

HOLT, Justice.

On April 14, 1942, at about 1:30 A.M., a truck which appellant, Carl Favre, was driving on concrete highway 64 on the outskirts of the town of Plumerville, struck and killed two work horses belonging to appellee. Appellee, the owner, sued to recover damages. He alleged that appellant was negligent in that he failed to keep a lookout and was driving at an excessive and dangerous rate of speed, while under the influence of liquor.

Appellant's answer was a general denial, and in a cross-complaint alleged that he was free from negligence but that appellee was negligent "in that said stock belonging to the plaintiff (appellee) was not kept off the public highways as required by law," and prayed for damages to his truck and for personal injuries.

At the close of all the testimony, the trial court refused to submit to the jury any issue in appellant's cross-complaint, having found that no evidence had been adduced in support thereof. The cause went to the jury on the remaining issues and resulted in a verdict for appellee in the amount of $300.

This appeal followed.

For reversal, appellant questions the sufficiency of the evidence to support the verdict, contends that the court erred in giving Instructions numbered 16, 17, 18 and 20, and the fact that appellee's horses were running at large, with or without his knowledge, was in violation of the Conway County stock law as alleged in his complaint and prima facie evidence of appellee's negligence, and that the court erred in refusing to submit this issue to the jury.

The facts tended to show that appellee kept the horses in question confined within an enclosure surrounded by a wire fence, that they had broken out on the night in question, without appellee's knowledge, and had strayed upon the highway where they were struck and killed by appellant's truck.

Lum Reed, on behalf of appellee, testified that the horses were killed on the highway almost directly in front of his house. He was awakened by a considerable crash "like two automobiles or something blowing up in front of the house." He immediately went to the scene and appellant was walking around the truck and remarked to Reed "I killed this man's team." Appellant said he lived at Conway.

"Q. During the time you observed him (Carl Favre), what can you say as to his condition as to being sober? A. I would say he was intoxicated some.

"Q. Mr. Reed I wish that you would give the jury the position of the car and the horses? A. The car was on the north side of the highway headed east, the mare was lying a few feet in front of the truck in a dying condition when I got out there, broken leg and probably a broken neck.

"Q. What was the condition of the black horse? A. Well, I judge the black horse was something like a 100 feet east, opposite side of the highway, on the south side of the highway.

"Q. From the point where these horses were struck, where the car stopped and the gray mare was lying, back west, (appellant was driving east) I will ask you, how far that road is perfectly straight? A. Right close to a quarter of a mile.

"Q. To the top of the hill? A. Yes.

"Q. There is nothing to obstruct the view of the defendant and nothing to prevent him from seeing these horses, if he had lights? A. The road is straight and open, not a thing in the world to keep him from seeing them."

There was other testimony of a corroborative nature.

Special Act 405 of the 1919 Legislature provides in Section 2 that "it shall be a misdemeanor, punishable by a fine not exceeding fifty dollars $50, for any person owning horses * * * to allow the same to run at large anywhere in Conway County," and in Section 5, "The owner of any stock, which is allowed to run at large in Conway County, * * * shall be liable to triple damages for any damage which may be done by such stock running at large," etc.

In Briscoe v. Alfrey, 61 Ark. 196, 32 S. W. 505, 30 L.R.A. 607, 54 Am.St.Rep. 203, this court had for consideration Section 359, Pope's Digest, which prohibits the running at large of stallions or unaltered mules. In construing that statute, it was held that running...