Lee v. Missouri Pac. R. Co.

• Decision Date: 14 March 1932
• Docket Number: No. 192.,192.
• Citation: 47 S.W.2d 29
• Parties: LEE v. MISSOURI PAC. R. CO.
• Court: Arkansas Supreme Court

47 S.W.2d 29

LEE v. MISSOURI PAC. R. CO.

No. 192.

Supreme Court of Arkansas.

March 14, 1932.

Appeal from Circuit Court, Clark County; Dexter Bush, Judge.

Action by W. H. Lee against the Missouri Pacific Railroad Company. From judgment for defendant on directed verdict, plaintiff appeals.

Reversed and remanded.

Alfred Featherston, of Delight, for appellant.

R. E. Wiley and Henry Donham, both of Little Rock, for appellee.

KIRBY, J.

The only question here is whether the court erred in directing a verdict against appellant.

The cow, for which damages were sought to be recovered, was killed at or near a private crossing of the railroad track. The enginemen testified that they were keeping a lookout, their train was running about 25 miles an hour, and could have been stopped in 200 feet. They discovered the cattle when the train was 40 or 50 feet from the crossing, running toward it. The engineer said he did not have time to blow the whistle and put the brakes in emergency, and struck the cow on the crossing, throwing her about 20 feet from where she was struck. Other witnesses testified that the train could have been stopped in 100 feet; that the tracks showed the cow ran down the track from the crossing and was struck about 40 yards from it and dragged and killed, the carcass lying 66 steps from the crossing. The court in "summing up" said about the only controversy that could arise in the case would be whether the cow was killed at the crossing without running from the train, or whether it was killed above and beyond the crossing after it had run some distance from the train. He then said if the testimony was true that the engineer did all he could to avoid killing the cow, as he testified, there would be no negligence, and that, if the engineer's statement was incorrect in the circumstances mentioned and the cow was running up the track, running from the train at the time, then it was not necessary to blow the whistle, etc., or give the alarm, since the cow already knew the train was there. So, in any event, the court said, there is no evidence that the engineer was guilty of negligence and that the presumption of negligence arising from finding the animal killed by the train by the witnesses who saw it was overcome, that it was just an unavoidable accident, there could be no liability, and directed a verdict for appellee.

The court's "summing up" shows the testimony in material conflict. The enginemen testified that they saw the cattle...