Geren v. St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 15 May 1911
• Citation: 137 S.W. 1100,99 Ark. 226
• Parties: GEREN v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

137 S.W. 1100

99 Ark. 226

GEREN v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

Supreme Court of Arkansas

May 15, 1911

Appeal from Sebastian Circuit Court, Fort Smith District; J. S Maples, Judge on Exchange; affirmed.

Judgment affirmed.

Winchester & Martin, for appellant.

Lovick P. Miles, for appellee.

OPINION

FRAUENTHAL, J.

This was an action instituted by the plaintiff below against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for an alleged injury to his wagon and team done by the running of its train. The plaintiff was engaged in the ice business in the city of Fort Smith, and owned an ice wagon and team of mules which he used in delivering the ice to his patrons. On February 19, 1909, his driver was engaged in delivering ice with this wagon and team to certain patrons who resided near the defendant's railroad track where it crossed C Street in said city. The driver crossed the track upon this street and left his wagon and team standing either near the edge of or a short distance from the side of this street, with the rear of the wagon about two feet from the railroad track, and proceeded to take the ice to the residence of a patron which was only a few yards distant from the track. The heads of the mules were turned somewhat in the direction of the depot.

About the time the driver had got out of the wagon, or, as some of the witnesses testified, just after he had delivered the ice to the patron and was returning to the wagon, the defend, ant's train approached from the direction of the depot. The testimony on the part of the defendant tended to prove that when he got to a point about one hundred yards from the wagon and team, the engineer observed them and saw that the mules were quiet and did not seem to be frightened, and that the wagon was at such a distance from the track that the train could safely pass it. The testimony tended further to prove that this engineer had passed wagons at this distance from the track on other occasions with safety, and that on this occasion he observed and watched the animals attached to the wagon for the entire distance from the time he could have first discovered them until the injury occurred, and that they appeared to be quiet and not frightened, and also that he used due care in the operation of the train. It also appears from the testimony on its part that the driver knew that trains were accustomed to pass on defendant's track at this place about this time, and that the mules were afraid of running trains; that he discovered the approach of the train when it was about one hundred yards distant, and went to the heads of the mules and attempted to hold them, instead of moving them away. As the train approached near to the wagon, and about the time the engine passed it. the mules backed the wagon against the moving train, resulting in the injury to the team and wagon.

The testimony on the part of the plaintiff tended to prove that the driver had just got out of the wagon and had gone to the rear of the wagon to take out the ice when he discovered the approaching train, and that he at once took hold of the lines attached to the mules to hold them, and that he, could not safely drive them away on account of the narrowness of the road or street between the track and the residence of the patron where he had stopped the wagon; that the mules became frightened about the time the train came in sight, and as the train approached nearer tried to turn back, and thereby threw the wagon around, so that the engine struck it and the mules, and greatly damaged them.

The trial resulted in a verdict in favor of the defendant, and the plaintiff has appealed from the judgment which was rendered thereon.

It is not insisted upon this appeal that there was not sufficient evidence to sustain the jury's verdict, but it is urged by counsel for plaintiff that the trial court committed errors in giving certain instructions to the jury, and in refusing to give others which were requested by the plaintiff.

The court gave the following instruction to the jury: "If you find from a preponderance of the evidence that the defendant company, by its agents, while operating its train, negligently ran into or against plaintiff's wagon or team, and thereby injured or killed plaintiff's property, then you should find for the plaintiff such sum as will justly compensate plaintiff for such injury, if any is shown." it is urged that this instruction is erroneous for the reason that it required the plaintiff to prove by a preponderance of the evidence that the defendant was negligent in the operation of its train, which caused the injury. It is insisted that the uncontradicted evidence shows that the damage to the property was caused by the defendant by the running of its train, and that therefore it was incumbent upon defendant to show that it was free from negligence. It is true that, in suits against a railroad company for a recovery of damages done to property by the running of its trains, the burden of proof of showing due care upon its part is cast upon the railroad company by virtue of the statute of this State making railroad companies responsible for all damages done or caused by the running of their trains. Kirby's Digest, § 6773; Little Rock & Ft. Smith Ry. Co. v. Payne, 33 Ark. 816; Memphis & L. R. Rd. Co. v. Jones, 36 Ark. 87; St. Louis, I. M & S. Ry. Co. v. Vincent, 36 Ark. 451; St. Louis & S. F. Rd. Co. v. Basham, 47 Ark. 323, 1 S.W. 556; Railway Co. v. Taylor, 57 Ark. 136; Railway Co. v. Thomason, 59 Ark. 140.

In this case the uncontroverted testimony showed that the injury to the property was caused by the running of the train, and therefore it was technically erroneous to instruct the jury that the plaintiff was required to prove by a preponderance of the evidence that the defendant negligently ran its train into plaintiff's wagon and thereby injured it. But it appears from an examination of the entire trial and the instructions which were asked by both parties that the sole issues which were submitted to the jury...