Missouri Pac. R. Co. v. Mobley

• Decision Date: 09 March 1936
• Docket Number: No. 4-4217.,4-4217.
• Parties: MISSOURI PAC. R. CO. et al. v. MOBLEY.
• Court: Arkansas Supreme Court

91 S.W.2d 611

MISSOURI PAC. R. CO. et al. v. MOBLEY.

No. 4-4217.

Supreme Court of Arkansas.

March 9, 1936.

Appeal from Circuit Court, Saline County; H. B. Means, Judge.

Action by Hugh Mobley against the Missouri Pacific Railroad Company and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

R. E. Wiley, of Little Rock, and Richard M. Ryan, of Hot Springs, for appellants.

J. W. Westbrook, of Benton, for appellee.

BUTLER, Justice.

The appeal in this case is to reverse a judgment for $110 for the killing of appellee's mare by the operation of a train at a public crossing in Traskwood, a village on the Missouri Pacific Railway. At this point the railroad runs north and south and a wagon road crosses it at right angles from east to west. The appellee contends that his mare was killed because of the failure of the servants of appellant company to give the statutory signals and to keep a proper lookout for persons and property on or near the railroad tracks. The killing of the mare was admitted, but the action was defended on the ground that the accident was unavoidable.

The contentions for reversal are that incompetent testimony was admitted relative to the value of the mare, that certain instructions given were incorrect declarations of law and that the undisputed evidence established the defense set up by appellant in its answer. The testimony complained of is that given by certain witnesses who were permitted to testify as to the value of the animal killed without qualifying as to their knowledge of the market value of horses at the time and place of the accident. These witnesses placed the value from $100 to $125 and described the animal killed, stating that it weighed from 1,000 to 1,100 pounds, was about seven years old, and a good work animal. They gave it as their opinion that an animal of that character was worth the sums mentioned. Other witnesses testified that they knew the value of such animals and what they were selling for and placed the value around $125. We must indulge the presumption that the jury was comprised of men of ordinary information and its verdict for $110 demonstrates that no prejudice could have resulted from the introduction of the testimony complained of. The verdict was not excessive and the competent evidence would have justified a larger amount.

We have examined the instructions complained of in connection with others given at the request of the appellants. We have also examined the instructions requested by the appellants which were refused and conclude that no prejudicial error was committed by the trial court in the giving or refusal of instructions. The instructions are in effect similar to those given in the case of Missouri Pac. R. Co. v. Foltz, 182 Ark. 941, 33 S.W.(2d) 51, 52, where the same objections were made as are made to the instructions in the case at bar. In that case, we said: "The effect of our statute [section 8562, Crawford & Moses' Dig.] * * * is to make proof of the injury by operation of the train prima facie evidence of want of ordinary care on the part of the operatives in charge of the train which would warrant a finding against it for damages resulting from the injury on its failure to produce any evidence tending to establish the exercise of ordinary care on the part of its servants. That is all that the instructions complained of do. * * * No fair interpretation of these instructions supports the contention of the appellant that the court meant to say, or that the jury would understand, that the presumption mentioned should be weighed as evidence against the testimony showing the exercise of due care, but, only in the absence of any evidence, the law imputed negligence to the appellant."

The appellee's mare was killed by a moving train. Therefore, under the statute, supra, the burden rested upon the appellants to establish a compliance with the requirement as to the giving of signals and the keeping of a proper lookout and that they were in the exercise of ordinary care at the time of the accident. Missouri Pac. R. Co. v. Mitchell, 170 Ark. 689, 280 S.W. 627; St. Louis-San Francisco R. Co. v. Cole, 181 Ark. 780, 27 S.W.(2d) 992. The instructions...