Kansas City Southern Railway Co. v. Ingram

• Decision Date: 15 October 1906
• Citation: 97 S.W. 55,80 Ark. 269
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. INGRAM
• Court: Arkansas Supreme Court

97 S.W. 55

80 Ark. 269

KANSAS CITY SOUTHERN RAILWAY COMPANY v. INGRAM

Supreme Court of Arkansas

October 15, 1906

Appeal from Sebastian Circuit Court; Styles T. Rowe, Judge affirmed.

Judgment affirmed.

Read & McDonough, for appellant.

1. The court erred in its first instruction. The Arkansas lookout statute was never extended over the Indian Territory; hence at the time of the accident there was no duty incumbent upon the engineer to keep a lookout for stock on the track of the railroad. 49 Ark. 257, and cases cited. Neither would it be the engineer's duty to use ordinary care to discover stock on the track.

2. The demurrer to the jurisdiction, and also defendant's request for a peremptory instruction, should have been sustained. By the laws of this State an action to recover damages for the killing of stock is local, and can only be maintained in the county where the killing occurred. 70 Ark 346; 80 S.W. 748.

3. The proof totally fails to show any negligence whatever on the part of the defendant.

J. F Omelia and F. A. Youmans, for appellee.

1. It is the law in Indian Territory that it is the duty of a railway company to exercise ordinary care and watchfulness to discover domestic animals on its track, and, upon discovering them, to use reasonable efforts to avoid harming. 49 F. 351; 54 F. 481. Killing or wounding live stock on the track is prima facie proof of negligence. 49 Ark. 264. Ordinary prudence and caution require the engineer to promptly blow the whistle, or ring the bell so soon as the danger is discovered. 37 Ark. 593; 39 Ark. 41; 41 Ark. 157. And a railway company is liable for damages resulting from want of due care and diligence. 16 Ark. 308; 36 Ark. 87; 33 Ark. 816.

2. The demurrer to jurisdiction and request for peremptory instruction were properly overruled. 69 Ark. 664; 141 U.S. 127.

3. The engineer's own testimony shows negligence on his part.

Read & McDonough, for appellant in reply.

It is conceded that personal injury suits are transitory actions, but stock cases are local, having been made so by our statute.

OPINION

HILL, C. J.

Appellee had a filly, a mare and a mule killed by appellant company's train in the Indian Territory, and brought suit against appellant for the value thereof at Ft. Smith, Ark., where appellant is also found operating a railway.

1. The court gave this instruction: "It was the duty of defendant's engineer to keep a lookout for stock upon its track, and to use ordinary care to avoid injury to stock after they had been discovered by him, or after he might have discovered them by the use of ordinary care and diligence."

Parts of the law of Arkansas, as found in Mansfield's Digest (1884) thereof, were adopted by Congress as law in the Indian Territory, but the chapter upon railroads was not adopted. The act of 1891 (sec. 6607, Kirby's Digest), known as the "lookout statute," has never become incorporated into the laws of the Indian Territory. It is contended that, as this court held in Memphis & Little Rock N. Co. v. Kerr, 52 Ark. 162, 12 S.W. 329, that it was not the duty of the engineer to keep a sharp lookout for stock, and in St. Louis, I. M. & S. Ry. Co. v. Monday, 49 Ark. 257, 4 S.W. 782, that it was not the engineer's duty to keep a sharp lookout for persons on the track, in the absence of the "lookout statute" which changed the rule in this State announced in those cases, this instruction is erroneous. This case must be tried by the law of Indian Territory. St. Louis, I. M. & S. Ry. Co. v. Brown, 67 Ark. 295, 54 S.W. 865.

The United States Circuit Court of Appeals for the 8th Circuit is the appellee tribunal for the Indian Territory, and that court refused to follow the Kerr case, and held that it was negligence to fail to keep a lookout for stock on the track. After discussing the Arkansas cases and showing the Kerr case was out of line with previous decisions, and the reason why this duty should be imposed on the operatives of trains, Judge Caldwell, speaking for the court, said:

"We can not yield our assent to the doctrine that an engineer who refuses to look, or is blind, or near sighted, may run his engine over and kill domestic animals ad libitum, and without imposing a liability on his company therefor, because he did not see them. It is the duty of the company, under the conditions which exist in this Territory, to exercise ordinary care and watchfulness to discover domestic animals upon its track, and, when they are discovered, to use reasonable efforts to avoid harming them." Gulf, C. & S. F. Ry. Co. v. Washington, 49 F. 347; Gulf, C. & S. F. Ry. Co. v. Ellis, 54 F. 481. There was no error in this instruction.

2. It is argued that, as section 6776, Kirby's Digest, as construed in Little Rock & F. S. Ry. Co. v Clifton, 38 Ark. 205, Railway Co. v. Lindsay, 55 Ark. 281; Little Rock & F. S. Ry. Co. v. Jamison, 70 Ark. 346, 68 S.W. 28, and St. Louis, I. M. & S. Ry. Co. v. Gray, 72 Ark. 376, 80 S.W. 748, localizes the action for stock killing to the place of injury, this action, occurring without the State, could not be maintained within the State. This statute merely regulates the bringing of the statutory action...