Memphis & L. R. Ry. Co. v. Shoecraft

• Decision Date: 29 March 1890
• Citation: 13 S.W. 422
• Parties: MEMPHIS & L. R. RY. CO. <I>v.</I> SHOECRAFT.
• Court: Arkansas Supreme Court

13 S.W. 422

MEMPHIS & L. R. RY. CO.v.

SHOECRAFT.

Supreme Court of Arkansas.

March 29, 1890.

Appeal from circuit court, Monroe county; M. T. SANDERS, Judge.

Action by George Shoecraft against the Memphis & Little Rock Railway Company for injuries to stock. There was judgment for plaintiff, and defendant appeals.

U. M. & G. B. Rose, for appellant. H. A. Parker, for appellee.

PER CURIAM.

The complaint in this cause was filed March 7, 1885. The answer, pleading statute of limitations, was filed April 2, 1885. The complaint was amended September 18, 1885, by alleging that suit was brought on this cause of action November 13, 1883, and dismissed April 9, 1884. The amended answer, filed March 20, 1888, denied the bringing and dismissal of the previous suit. There was no proof on the point, and the court should have instructed the jury that upon the evidence the action was barred by the statute. Upon the facts, the proof was wholly insufficient to warrant a recovery by plaintiff. The only suggestion of negligence on the part of defendant was that growing out of the statutory presumption. The testimony of witnesses, who are uncontradicted, and not even cross-examined, overcome this presumption, and show the killing of the cattle to have been unavoidable. Reverse.