Kansas City Southern Ry. Co. v. Dyer

• Decision Date: 24 October 1921
• Docket Number: (No. 186.)
• Citation: 234 S.W. 50
• Parties: KANSAS CITY SOUTHERN RY. CO. v. DYER.
• Court: Arkansas Supreme Court

234 S.W. 50

KANSAS CITY SOUTHERN RY. CO. v. DYER.

(No. 186.)

Supreme Court of Arkansas.

October 24, 1921.

Appeal from Circuit Court, Little River County; Jas. S. Steel, Judge.

Suit by J. I. Dyer against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jas. B. McDonough, of Ft. Smith, for appellant.

Reynolds & Steel, of Ashdown, for appellee.

HUMPHREYS, J.

This is a suit by appellee against appellant to recover damages for killing a cow by appellant's train at the Rankin crossing between Ashdown and Wilton. The value of the cow was alleged at $100 in the complaint, and a verdict was returned in favor of the appellee for that amount.

It was alleged in the complaint that appellant failed to pay appellee for the cow within 30 days after notice was served upon it, and under that allegation, when the verdict was returned, the court rendered judgment for double the value of the cow, and for an attorney's fee of $50, pursuant to the terms of section 8563 of Crawford & Moses' Digest of the Statutes of Arkansas.

The railroad, at the point where the cow was killed, was straight for a mile toward Ashdown and two miles toward Wilton. There as a culvert at the Rankin crossing. There was a cut toward the north from the crossing, with an embankment on either side of the railroad bed from 2½ to 4 feet high. The track at that point ran almost north and south.

On the morning of June 1, 1920, the cow, with evidences upon her of having been struck by a train, was found dead on the west side of the track, about 5 or 6 feet from the rails, with her nose toward the south, lying against the culvert at the crossing.

Appellee's evidence tended to show that the cow came upon the railroad track about 1½ or 2 rail lengths north of the crossing; that for that distance there was hair and hide on the track, and blood on the crossties where she went off; that the tracks of the cow indicated that she was going south when struck; that the hair and hide indicated that the cow was dragged towards the south for a considerable distance before she was thrown off the track; that the value of the cow was $100; that appellee gave appellant the first notice of the death of his cow on the 1st day of June, 1920, and a second notice a short time thereafter, on account of failing to answer some of the questions contained in a blank in giving the first notice; that appellant failed and refused to pay appellee the value of the cow within 30 days, or at any time, after the notice.

The appellant's evidence was in substance, to the effect that the cow was killed by a north-bound freight train at 9:10 p. m. on May 31, 1920. J. W. Dunnigan, the engineer of that train, testified that he was informed by the fireman as he was passing the Rankin crossing, going north, that the engine had struck a cow; that he was keeping a lookout, and as the train approached the crossing he did not discover the cow himself; that as he passed back next day he saw the cow lying on the west side of the track and north of the road crossing.

W. H. Thomas, the fireman of the train, testified that the freight train they were operating consisted of about 50 cars, and that it was running about 25 miles an hour as it approached Rankin crossing; that the engine was equipped with an electric headlight; that it was in good condition; that he was keeping a constant lookout and did not discover the cow until the engine was within 25 or 30 feet of her; that the cow was of a brownish color, quite similar to the color of the road; that she could hardly be distinguished from the road; that he did not see her until she was in the act of getting up; that at the time he saw her she was standing on her hind legs and trying to raise herself on her fore feet; that in doing this the cow shoved herself forward and was struck on the head by the footstep; that after discovering the cow nothing was done to prevent the injury, because the engine struck her before anything could be done.

S. B. Taylor, engineer, and T. B. Griffith, fireman, operating the south-bound passenger train No. 1, passed Rankin crossing early on the morning of June 1st, and both testified that they were keeping a constant lookout and did not see or kill the cow; that they did not see a dead cow at that place.

A. W. Davis, section foreman for appellant, found the cow on the morning of June 1st, and, after being identified by appellee as his cow, he skinned her and burned the carcass; that the cow in question was the only cow found dead at Rankin crossing on that occasion.

At the conclusion of the evidence appellant asked a peremptory instruction, which was refused by the court, and the refusal to give the instruction is now urged as reversible error, upon the ground that the evidence of the engineer and fireman operating the...