Missouri Pacific Railroad Co. v. Foresee

• Decision Date: 31 March 1930
• Docket Number: 248
• Citation: 26 S.W.2d 108,181 Ark. 471
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. FORESEE
• Court: Arkansas Supreme Court

26 S.W.2d 108

181 Ark. 471

MISSOURI PACIFIC RAILROAD COMPANY v. FORESEE

No. 248

Supreme Court of Arkansas

March 31, 1930

Appeal from Boone Circuit Court; J. F. Koone, Judge; affirmed.

Judgment affirmed.

Thomas B. Pryor and Harvey G. Combs, for appellant.

V. D Willis, for appellee.

OPINION

MEHAFFY, J.

This action was begun by appellee against appellant to recover damages for killing a dog. It was alleged that the dog was killed in the night time and no one saw it killed. The evidence however, showed that it was found on the track, and there was blood and hair on the rails, and there seems to be no doubt that it was killed by the train. The evidence showed that the value of the dog was from $ 60 to $ 100. Neither the engineer nor fireman saw the dog at any time.

The jury returned a verdict for $ 25, and judgment was entered accordingly. Motion for new trial was filed, overruled and this appeal is prosecuted to reverse the judgment of the circuit court.

If the dog was killed by the operation of the train, this made a prima facie case, and was sufficient to take the case to the jury unless the railroad company offered some evidence that it was at the time in the exercise of care and did not negligently kill the dog. The engineer operating the train, testified that he was keeping a lookout and saw no dog at the place where this dog was killed. He also testified that there were weeds growing up by the side of the track, and, if so, a dog might have come out of the weeds immediately in front of the engine and been killed without the engineer seeing him. Another witness, however, testified that there were no weeds, that there had been, but they had been removed. If the only negligence relied on was failure to keep a lookout, then the appellant would have been entitled to a verdict because the appellant offered evidence which overcame this presumption. One witness testified that he heard the train, and that there was no warning given, no bell nor whistle. The fireman testified, that it was the duty of the engineer to give the signal, but that he did not remember whether it was given or not.

We said in a case recently decided: "If the dog was killed by the operation of the train as the jury found, this made a prima facie case, and was sufficient to take the case to the jury unless the railroad company offered some evidence that it was at the time in the exercise of care, and did not negligently kill the dog. " ...