Kansas City Southern Ry. Co. v. Lewis

• Decision Date: 15 October 1906
• Citation: 97 S.W. 56
• Parties: KANSAS CITY SOUTHERN RY. CO. v. LEWIS.
• Court: Arkansas Supreme Court

97 S.W. 56

KANSAS CITY SOUTHERN RY. CO. v. LEWIS.

Supreme Court of Arkansas.

October 15, 1906.

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

Action by Ben Lewis against the Kansas City Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Read & McDonough, for appellant. T. S. Osborne, for appellee.

HILL, C. J.

This case has been presented with Kansas City Southern Ry. Co. v. Ingram (just decided) 97 S. W. 55, and the law as therein announced controls in this, but the facts are different. Appellee's mule was killed by appellant's freight train in the nighttime, about the 22d of January, 1904, on appellant's track in the Poteau Bottom in the Choctaw Nation, near the city of Ft. Smith, Ark. Appellee's evidence showed the mule was found knocked off the railroad dump, evidently killed by the train. There were no footprints showing he had been on the track for any distance before reaching this point. Appellee's case rested upon evidence showing that the country was level and open, the track straight, and the view along it unobstructed for more than a quarter of a mile either way, and that an object as large as a mule could be seen by a light thrown from a locomotive headlight a distance of a quarter of a mile. All of this was competent evidence, tending to prove negligence; and it was necessary to prove negligence as there was no statutory presumption of negligence arising from the killing of the stock by the train, as there is in Arkansas. It may be noted that there is a dearth of evidence showing that the mule was on or near the track sufficient time to have been seen by the train operatives if they had been on watch, even if the fog had not been an element in the case. Concede, however, that appellee's evidence unexplained would support the verdict, yet the case must be reversed on account of the uncontradicted and undisputed evidence of the engineer excusing the failure to see the mule.

He says that a dense fog enveloped the Poteau Bottom on the night when he struck this mule, that such fogs were frequent at that season and place, and on this particular night he could not see an object 10 feet ahead of the engine. He says he was running the train at its usual rate, about 16 miles an hour, gave frequent blasts on the whistle on account of the fog, and that he saw the mule only an instant before he struck it, and he could not tell whether it was on the track or trying to...