Kansas City, S. & M. Ry. Co. v. Kirksey

• Decision Date: 19 February 1887
• Citation: 3 S.W. 190
• Parties: KANSAS CITY, S. & M. RY. CO. <I>v.</I> KIRKSEY.
• Court: Arkansas Supreme Court

3 S.W. 190

KANSAS CITY, S. & M. RY. CO.

v. KIRKSEY.

Supreme Court of Arkansas.

February 19, 1887.

Appeal from circuit court, Craighead county.

Newman Erb and Caruth & Erb, for appellant.

COCKRILL, C. J.

This action was brought by the appellee against the railroad to recover damages for an injury to his mule, caused by one of the appellant's moving trains. The plaintiff relied upon the statutory presumption of negligence, and the company undertook to overcome the presumption by the evidence of the train hands to the effect that everything that could be done to prevent the accident was done. There was, however, evidence tending to show that outside of the ditch, at the foot of the embankment where the mule was killed, there was a clump of bushes on the company's right of way, behind which the animal was standing as the engine approached, and that it was hid thereby from the train-men's view; that, as the train approached, the mule rushed suddenly out of the bushes, and upon the track, where it was unavoidably struck by the engine and killed. Upon this branch of the case the court charged the jury as follows: "The railroad company, being assumed to be the owners and to have control of the right of way, would be held to ordinary care and diligence in keeping the right of way in such condition that its officers and servants, engineers and firemen, could have a free and unobstructed view of the right of way from the locomotive. Now, if you find that this mule was killed without fault on the part of the company or its servants, and they used every possible means to avoid the calamity, but it happened in spite of everything that could be done, then you will find for the defendant. This must be shown by a preponderance of proof; otherwise you will find for the plaintiff. And it is the duty of the company to keep their right of way in such a condition that its employes and agents could have a proper view of it, such as is necessary for the safe operation of its trains. In this case, if you find that the clump of bushes was outside of the right of way, you need not consider that any further; but, if it is inside the right of way, then you will look to see if it contributed to the accident, and, if so, then you will entertain it; but, if it did not contribute, then you will not entertain it."

The jury were thus left at liberty to find that it was negligence which would authorize a recovery for the company to permit bushes to grow upon its right of way, and they returned a verdict for the appellee. It may be that the charge announces the rule that should govern when the relation of the company to its passengers, or the owner of live-stock to which it has assumed the obligation of a common carrier, is considered, or when its duty to one who is crossing its track upon a highway, and is prevented by the undergrowth upon the right of way from seeing an approaching train, is involved, as was the case of Dimick v. Railroad Co., 80 Ill. 338. But the question is, what was its duty to the plaintiff in this case? The first requisite to establish negligence is to show the existence of a duty due to the party aggrieved, and then a violation or neglect to perform that duty. Cooley, Torts, 859, 860. The railroad's obligation as a carrier, or its duty to a person...