Kansas City Southern Railway Co. v. Whitley

• Decision Date: 23 June 1919
• Docket Number: 46
• Citation: 213 S.W. 369,139 Ark. 255
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. WHITLEY
• Court: Arkansas Supreme Court

213 S.W. 369

139 Ark. 255

KANSAS CITY SOUTHERN RAILWAY COMPANY v. WHITLEY

No. 46

Supreme Court of Arkansas

June 23, 1919

Appeal from Little River Circuit Court; J. S. Steel, Judge affirmed.

Judgment affirmed.

June R Morrell and James B. McDonough, for appellant.

1. The court should have directed a verdict for defendant. The engineer's evidence is reasonable, consistent and uncontradicted, and rebuts all presumption of negligence. 66 Ark. 439; 67 Id. 514; 89 Id. 120; 78 Id. 234. The killing was unavoidable. 53 Id. 96; 69 Id. 659.

2. It was error to read section 8131 of Kirby & Castle's Digest to the jury. 24 Ark. 499; 55 Id. 588; 63 Id. 477. The rule is not changed in 116 Ark. 514. See also 119 Id. 295; 127 Id. 323.

3. Even where stock are discovered on the track, he is not necessarily required by law to stop or slacken the speed of the train. 37 Ark. 593. Nor to slow down if cattle are seen on the right-of-way. 99 Id. 226.

Seth C Reynolds, for appellee.

1. The killing is admitted. This makes a prima facie case of negligence, and the burden shifted to defendant to show that the killing was not done negligently. 88 Ark. 12; 83 Id. 217.

2. The evidence shows negligence, as do the physical facts, and there was no error in reading to the jury the law of this State. 74 Ark. 606; 70 Id. 385; 34 Id. 39; 62 Id. 187; 95 Id. 226. The cases cited by appellant do not apply here.

3. There was no error in the instructions, nor in reading our statute. 99 Id. 226; 119 Id. 295-301.

OPINION

WOOD, J.

This is an action by the appellee against the appellant to recover damages for the alleged negligent killing of a Jersey heifer belonging to the appellee. The appellee alleged that the heifer was killed about three-fourths of a mile north of Ashdown by the southbound passenger evening train of the appellant. The appellant denied that it had killed the heifer, and set up that if the appellee had been damaged the loss was due to his own negligence and carelessness, and not to any negligence on the part of the appellant.

The appellee testified that about the 12th day of August his Jersey heifer was killed about three-fourths of a mile north of Ashdown. He knew that the evening passenger train killed her because he saw she was dragged in front of the train; found her on the right-of-way on the east side of the track right at the crossing; that on one side she had some skinned places and the left hind leg was broken. Witness had demanded of the agent of the appellant at Texarkana the sum of $ 75 as pay for the heifer, but the agent refused to pay. The heifer was worth $ 75.

Other witnesses corroborated the testimony of the appellee tending to prove that the heifer was killed by the said passenger train of appellant's as alleged in appellee's complaint, and that the market value of the animal was $ 75. The testimony tended to prove that the railroad track at the point where the animal was killed was straight for some distance; that one could see 150 yards north of that point.

The testimony of the engineer was substantially as follows: "He was an engineer and pulling the passenger train going south which killed the heifer in controversy. Witness could see the cows on the left-hand side of the track in plain view. There was a road crossing close to where they were, and the cow didn't show any indication of being close to the track, or anything. Witness whistled for the road crossing, and then whistled for the semaphore signals, and applied the brakes, got the semaphore answer and went on down, and just as he got in seventy-five or eighty feet of the cow she raised her head and went for the track, and just before she got across she momentarily stopped and the train hit her. Witness couldn't stop. She jumped on the track in front of witness, and with the train witness had it was impossible to prevent the same from killing her. If it had been witness' own wife and child, he couldn't have prevented the accident. The train had air-brakes in good order. The cows were one-half mile away when witness first saw the cattle. They were 25 or 30 feet away from the track on right-of-way. They made no attempt whatever to approach the train until witness got within 75 feet. The heifer jumped right up with her head up, and came right upon the track. Witness had already applied the brakes. He applied them about 1,500 feet from where the cattle were. He had reduced his rate of speed coming into the city limits and approaching semaphore and had applied brakes in service application, not a stop application. The service application is to check the speed of the train, in order to have it under control, approaching the semaphore. Witness drew off probably three or four pounds of air in order to check the momentum. It wasn't to stop the appliance at all, but when he saw the cow going straight toward the track he went into emergency immediately. The cow started like she was coming across, and she got with her front feet upon the track and stopped. She was on the east side and was knocked off on that side.

The court gave the following instruction to the jury:

"It shall be the duty of all persons running trains in this State upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time to have prevented the injury, by the exercise of reasonable care after the discovery of such peril; and the burden of proof shall devolve upon such railroad to establish the fact that this duty to keep such lookout has been performed."

The appellant objected specifically to the instruction on the ground that the evidence in the case did not warrant the court in giving the same and because the instruction, which is a copy of the act of May 25, 1911, commonly referred to as the "Lookout Statute," is misleading because the facts recited in the statute are not supported by the evidence in the case.

The court also instructed the jury as follows: "If you believe from the evidence in this case that if defendant's servants had been keeping a lookout and could have avoided the killing of plaintiff's cow by stopping its train, it was the duty of defendant's servants to stop its train to avoid the injury."

The appellant asked the court to instruct the jury to return a verdict in its favor, which request was refused. To which ruling the appellant duly excepted.

The court granted appellant's prayers for instructions Nos. 2 and 3 as follows:

"2. The court instructs the jury that the engineer operating the locomotive pulling the train has the right to operate the train upon the assumption that any animal on the track will get off before being struck by the train. In this case, if the animal was upon the right-of-way, or if it was near enough to the track to be struck by the engine, nevertheless the engineer had the right to assume that the animal would move out of the way before the train arrived at the point where the animal was. If the animal started across the track in front of the engine suddenly, and if the animal remained still until the engine was only a short distance away, and then started suddenly to cross the track in front of the engine, and if, after the engineer realized that the animal would cross in front of the engine, he was unable to slow the engine down or stop it, so as to avoid the killing, in that event you will find for the defendant."

"3. If the animal was in view, and was in a place of safety when first observed by the engineer, the said engineer in that event had a right to assume that the animal would not suddenly rush upon the track...