McDonnell v. St. Louis Southwestern Ry. Co.

• Decision Date: 20 March 1911
• Citation: 135 S.W. 925
• Parties: McDONNELL et al. v. ST. LOUIS SOUTHWESTERN RY. CO.
• Court: Arkansas Supreme Court

Page 925

135 S.W. 925

McDONNELL et al. v. ST. LOUIS SOUTHWESTERN RY. CO.

Supreme Court of Arkansas.

March 20, 1911.

Appeal from Circuit Court, Jefferson County; Antonio B. Grace, Judge.

Action by J. S. McDonnell and others against the St. Louis Southwestern Railway Company. From a judgment setting aside a judgment in favor of plaintiffs, they appeal. Affirmed.

Appellants sued appellee for damages in the killing of a mule belonging to appellant Bene and on which appellant McDonnell held a mortgage. The testimony on behalf of appellants tended to prove that the mule of appellant Bene was found lying close to appellee's railroad, badly injured, and showing evidences of having been struck by appellee's train. There were mule tracks in and about the railroad bed as if a mule had been grazing there. There were tracks that indicated that the mule had come upon the track and had run a distance of 150 yards on the railroad, and then that it had been thrown to one side. There was blood and hair on the ties between the rails of a switch near the main track. The mule was lying on the left side of the track going south to the east of the roadbed. The railroad was north and south at that point. The tracks indicated that the mule had been running at a good speed before it stopped at the point where it appeared that the mule was thrown from the track. The mule was a white or gray mule, and was shown to have a value of $200. The evidence on behalf of appellee tended to prove that the train that killed appellant's mule was running at the time about 30 miles an hour, the speed limit for the through freight. The engineer testified: Could not do anything but hit him. That the mule came running from this toolhouse, right on the track. That he did not have any show to do anything. That he only had 45 or 50 feet when he first saw him coming on the track. That he did not see the mule before he reached the seedhouse. That he could not have seen him if he had been on the south side of the house. That the witness was going south, and that the mule was on the south side of the toolhouse. That he could not, at the rate of speed he was running, do anything because the mule jumped from that toolhouse right on the track, and that he could not have stopped the train. That he was keeping a lookout. That his fireman was putting in a fire at that time. That he hollered to him, and told him that he had struck a mule. That he is required under the rules to make a report to the superior officer about hitting stock. That he did make a report at Pine Bluff on his arrival there of that case. That the injury occurred about 5 o'clock on the 30th of August. That it was daylight. That he could have seen anything down the track. That his headlight had not been shut off, but was still burning. That it was kept burning until sunup. That his headlight was in good condition, an electric headlight. The track along there was a straight track. He was looking down the track all the while for the distance of a mile. He could have seen the mule that distance. The toolhouse was 14 or 15 feet from the track, and was a shed 12 by 14 feet. There was a verdict in favor of appellants for $213. A motion for new trial was sustained by the court on the ground that the verdict was not supported by the evidence. The appellants appealed, stipulating...