Memphis & L. Ry. Co. v. Kerr

• Decision Date: 02 November 1889
• Citation: 12 S.W. 329,52 Ark. 162
• Parties: M. & L. R. R. R. v. KERR
• Court: Arkansas Supreme Court

12 S.W. 329

52 Ark. 162

M. & L. R. R. R. v. KERR

Supreme Court of Arkansas

November 2, 1889

APPEAL from Prairie Circuit Court, Southern District, M. T. SANDERS Judge.

Reversed and remanded.

U. M. & G. B. Rose, for appellant.

It is not the duty of a railroad to keep a lookout for stock over its whole right of way, or to bring the train under control whenever an animal is seen in proximity to the track. A railroad's duty to guard against injuries to animals first arises when the animal first gets upon the track. 48 Ark. 370; 36 id., 607; 37 id., 593; 39 id., 413; 40 id., 336; 41 id., 161.

J. S Thomas, for appellee.

The evidence shows gross carelessness on the part of the engineer. Of course the bushes were conveniently by the side of the track, according to the engineer's testimony, so as to bring the case within 48 Ark. 366, but the jury decided the case on the facts; there was no error in the instructions, but if they had been given as appellant requested, the verdict would have been the same upon the evidence.

OPINION

HUGHES, J.

This is an action to recover damages for the killing of a mule by the appellant's engine.

The evidence for appellee tended to show that the mule was grazing upon the railroad track, and when the train approached within about one hundred and fifty feet of it, it ran down the track about seventy-five yards, and was struck by the engine and killed; that before it was struck the whistle was sounded several times, but that the speed of the train was not checked.

The evidence for the appellant tended to show that the engineer first saw the mule when it came on the track about one hundred and fifty feet ahead of the engine; that the engineer upon first seeing it, sounded the whistle and called for brakes, and that he was unable to check the train after he first saw it, so as to prevent the engine from striking the mule; that he was keeping a close lookout at the time.

Verdict was given for plaintiff; a motion for new trial was overruled, and the railroad company excepted and appealed.

The court by modifications of the instructions asked for by the appellant, charged the jury, in effect, that if the proof showed that the servants of the company in charge of the train at the time were negligent in keeping a careful lookout, the company was liable. In L. R. & Ft. S. Ry. v Holland, 40 Ark. 336, this court, by Judge SMITH, said: "Ordinary care in the management of their trains is the measure of vigilance which the law exacts of railroad companies to avoid injury to domestic animals, and this means practically that the company's servants are to use all reasonable efforts to avoid harming...