Fenton v. De Queen & Eastern Railway Co.

• Decision Date: 19 February 1912
• Parties: FENTON v. DE QUEEN & EASTERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

144 S.W. 192

102 Ark. 386

FENTON v. DE QUEEN & EASTERN RAILWAY COMPANY

Supreme Court of Arkansas

February 19, 1912

Appeal from Sevier Circuit Court; Jefferson T. Cowling, Judge reversed.

STATEMENT BY THE COURT.

Appellant brought suit to recover damages for the value of a mare alleged to have been negligently struck by a train on appellee's road, and so injured as to be entirely worthless. The railroad company denied injuring the mare by the operation of any of its trains.

The testimony tended to show that the line of railroad where the animal was discovered to be injured runs east and west, with a fence on the north side of and parallel to it, which turns a little to the north just before its intersection with the creek running north and south along the railroad at the Bear Creek trestle or bridge. The mare was found between the borrow pit and this fence, just west of the creek and off the edge of the right-of-way, and when found had a hole in her side just back of the bulge of the ribs, with some deep cuts across the front of her hind legs, near where they joined the body, the flesh seeming to be stripped down, with other slight cuts and bruises upon her. Her value was practically destroyed by the injury, from which she thereafter died being abandoned by appellant.

Some tracks of horses were discovered coming on to the railroad dump about thirty yards west of opposite where the animal was found injured. The tracks of one being between the rails of the railroad track, and just about opposite the place where this animal was standing, the one that had been running in the center of the track left the railroad coming down the dump into the borrow pit. Some of the witnesses also said there were tracks leading out of the borrow pit towards the place where the injured mare stood. It had rained all the morning of the day upon which appellant heard, late in the afternoon, that his mare had been found injured, and he saw her the next morning. There was no indication, other than the tracks aforesaid and the wounded animal, indicating that she had been struck by a train, there being no blood or hair found upon or near the track, nor upon the engine nor any of the rolling stock. The animal had been in a pasture with two other mares and some horses, partly inclosed with a plank and barbed-wire fence, but there was a gap in the fence next to the railroad not a great distance from where she was found.

The case was tried on the theory that she was stuck by the train leaving De Queen at 9:30 on the morning of the 19th. The engineer of this train testified that they left the station at 9:30 on that morning; that the train did not strike any horse or mare near the Bear Creek bridge that morning; that he could see a point near the bridge from the engine cab down the track for 1,500 feet; that he was sitting on the engineer's side of the cab looking down the track, and that he did not see a horse or mare as he passed; that the fireman was also at his post of duty on the opposite side looking ahead; that he saw Mr, Kelly, who with his little boy on a speeder, had gone out just ahead of the train, who took it off the track about 300 or 400 feet beyond the Bear Creek bridge; that the speeder was only removed two or three feet from the track and not taken into the borrow pit; that Mr Kelly started out a few minutes before the train left, and he was looking out for him; that in the afternoon returning no horse or mare crossed the tracks in front of him, and that he didn't see any one along there that afternoon.

The fireman's testimony was about like that of the engineer both saying they had talked with Mr. Kelly before his leaving the station ahead of the train and were on the lookout for him, the fireman saying that Mr. Kelly took the speeder off the track about fifty feet beyond the Bear Creek bridge; that he knew the train did not strike a horse or mare approaching the bridge that morning, for he was sitting upon his seat looking out all the time and had a clear view for a quarter of a mile; that he distinctly remembers having kept a lookout that morning on approaching the bridge. He learned the next morning of appellant's claim that his mare had been injured. She was found about seventy-five feet from the track. The fireman testified that she was pretty badly cut up on her two hind legs, and that there was a bad place on her side; that the place on the side was in a triangle, cut two ways, and about ten inches long. It was about fifteen wide. "We found where the horse had walked up the track. We found where one foot had slipped. I did not see any other tracks there. There were some along the ends of the ties, that looked dimmer than them, older possibly. A good many horses and cattle ranged along this particular point."

On cross examination, he stated that he wasn't looking for horses that morning, but for Mr. Kelly, who was ahead of them on the track on a speeder.

Mr Kelly testified that he went out on the track on a speeder that morning, and that the train passed him about 100 feet from the second bridge on the De Queen & Eastern Railroad; that the train passed the point where the mare is claimed to have been hurt about two or three hundred yards behind him; that he did not see the mare when he passed there. ...