Kansas City, Fort Scott & Memphis Railway Company v. King

• Decision Date: 06 May 1899
• Citation: 51 S.W. 319,66 Ark. 439
• Parties: KANSAS CITY, FORT SCOTT & MEMPHIS RAILWAY COMPANY v. KING
• Court: Arkansas Supreme Court

51 S.W. 319

66 Ark. 439

KANSAS CITY, FORT SCOTT & MEMPHIS RAILWAY COMPANY v. KING

Supreme Court of Arkansas

May 6, 1899

Appeal from Lawrence Circuit Court, RICHARD H. POWELL, Judge.

Reversed and remanded.

W. J Orr, for appellant.

The complaint, in order to state a cause of action, should state that the killing occurred in the county where the suit is brought. Sand. & H. Dig. § 6352; 55 Ark. 282; 45 S.W 909; 38 Ark. 206. Appellant saved due exceptions to all the testimony as to where the animal was found, etc., and hence the question of its competency is fairly before the court. Pleading over does not waive the objection that the complaint does not state a cause of action. 43 Ark. 230; 44 Ark. 202; 49 Ark. 277. The court erred in reading section 6207, Sand &. H. Dig. to the jury, as an instruction. The "lookout statute" is to be construed strictly. 52 Ark. 152. The verdict is unsupported by the evidence. The appellant rebutted the presumption of negligence, and then it lay upon appellee to prove it. 41 Ark. 163; 78 Ky. 621; 39 Ark. 413; 40 Ark. 336; 47 Ark. 321; 53 Ark. 96.

R. A. King, pro see.

The evidence sustains the verdict. The venue of an action may be proved in circuit court, on appeal from justice court, though it does not appear on the justice's record. 55 Ark. 282.

OPINION

BUNN, C. J.

This is a suit for damages in the negligent killing of a horse by one of the trains of the defendant company. Judgment for plaintiff in the sum of $ 65, and defendant appealed. This action was commenced before a justice of the peace, based on an account for said damages. The defendant was duly summoned, but failed to appear on the day set for trial, and, after waiting three hours, the justice of the peace took the testimony, and found for the plaintiff in the amount claimed, to-wit, the sum of $ 65, and rendered judgment accordingly. Thereafter, in due time and in due form, the defendant filed its affidavit, and took an appeal to the circuit court, where also judgment was rendered for plaintiff in the said amount of $ 65, and the defendant, saving all proper exceptions, appealed to this court. After verdict, defendant filed its motion in arrest of judgment, as follows: "The defendant moves the court to arrest the judgment herein, for the reason that the statement filed with the justice and relied on by the plaintiff does not state a cause of action or facts sufficient to constitute a cause of action."

The contention of the defendant, as more particularly stated in their brief and argument, is that the venue was not laid in the account filed, and there was no proof of the county in which the killing is alleged to have occurred, and no motion made to amend or amendment made; therefore there was nothing upon which to find a judgment. Without disposing of this question, which will not probably arise in a new trial, we proceed with the further statement of the case. The motion in arrest was overruled, and defendant excepted.

The defendant filed motion for new trial on four several grounds the first being...