Midland Valley Railroad Co. v. Skinner
| Decision Date | 05 June 1911 |
| Citation | 138 S.W. 969,99 Ark. 370 |
| Parties | MIDLAND VALLEY RAILROAD COMPANY v. SKINNER |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Greenwood District; Daniel Hon Judge; reversed.
Judgment reversed and cause remanded.
Ira D Oglesby, for appellant.
Holland & Holland, for appellee.
This was an action to recover the value of a horse which appellee alleged was negligently killed by the appellant in the operation of one of its trains. The jury returned a verdict in favor of appellee. There are three assignments of error made why the judgment should be reversed:
That there was not sufficient evidence to sustain the verdict; (2) because error was committed in permitting the introduction of certain testimony; and (3) because the court erred in refusing to give an instruction requested by appellant.
The case, briefly stated, is this: Between 2 and 3 o'clock on the afternoon of December 15, 1908, appellee found his horse lying dead about ten or twelve feet on the north side of appellant's railroad track. A few hours before that he had received the information that appellant's section foreman had sent word that his horse was sick and lying by the side of the track. About 9 o'clock in the morning of the same day the horse was seen feeding in a stalk field on the south side of and near to the railroad track. And about 9:30 o'clock of the same morning one of appellant's trains passed this place going west. No witness testified that he saw the train strike the horse. Tracks of the horse were found leading from the stalk field on the south side of the track in a northwesterly direction and across the track to the place where the dead horse was found. From the description of these tracks, it would appear that the horse had run across the track, and when his body was discovered grass was found in his mouth similar to that where he had been seen in the morning feeding. There was some testimony indicating also that he was injured or "broke down" in his loins. No blood or hair of the horse was found, however, on the track, and there was no outward mark on the horse indicating where the train struck him.
The engineer and fireman who were on defendant's train which passed this place at 9:30 o'clock on the morning in question testified that they did not see the train strike any horse, but that they did see the horse lying on the north side of the track where its dead body was subsequently found. Some time after this train had passed, but at exactly what hour the testimony does not disclose, the appellant's section foreman in distributing ties at this place discovered the horse lying on the north side of the track breathing heavily, but still alive, and, believing that he was sick, he sent word to appellee to that effect.
From these facts and circumstances we think that there was some evidence from which the jury were warranted in finding that the horse was struck by appellant's train. The mere fact that the horse was found near the track and injured was not sufficient to prove that the injury was done by one of defendant's trains, and no presumption to that effect would arise simply from proof of that fact. Railway Co. v. Sageley, 56 Ark. 549; Railway Co. v. Parks, 60 Ark. 187.
But, in order to prove that the appellant's train did strike the horse, it was not necessary that some witness should actually have seen the train strike him. This could be proved by facts and circumstances from which it could be reasonably inferred that the train did strike the horse. The horse was seen feeding in a stalk field at 9 o'clock in the morning, and its dead body was found lying near the track between 2 and 3 o'clock of the same day. The horse therefore either became suddenly sick from some unknown cause and died therefrom, or he was struck by the train. The testimony tended to show that he had been in perfect health, and was in perfect health on the morning of the day in question, and the grass that was found in his mouth indicated that he had been feeding in the stalk field. There was some testimony from which the jury could have found that he ran across the track in front of the moving train, and was struck by it on the hip. Little Rock & Ft. S. R. Co. v. Wilson, 66 Ark. 414, 50 S.W. 995.
Upon the trial of the case, the court permitted appellee, in the...
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