Nelson v. Missouri Pac. R. Co.

• Court: Arkansas Supreme Court
• Writing for the Court: McCulloch
• Citation: Nelson v. Missouri Pac. R. Co., 255 S.W. 10, 160 Ark. 568 (Ark. 1923)
• Decision Date: 05 November 1923
• Docket Number: (No. 213.)
• Parties: NELSON v. MISSOURI PAC. R. CO.

255 S.W. 10

NELSON v. MISSOURI PAC. R. CO.

(No. 213.)

Supreme Court of Arkansas.

November 5, 1923.

Appeal from Circuit Court, Jackson County; Dene H. Coleman, Judge.

Action by Ben Nelson against the Missouri Pacific Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

E. F. Duncan, of Newport, for appellant.

Thos. B. Pryor, of Ft. Smith, and Ponder & Gibson, of Walnut Ridge, for appellee.

McCULLOCH, C. J.

The plaintiff, Ben Nelson, sued the railroad company to recover the value of a hound dog, alleged to have been run over and killed by a train through negligence of those operating the train. Defendant answered, denying that the train killed the dog, and also that there was negligence on the part of defendant's servants in operating the train.

In the trial of the case plaintiff introduced evidence sufficient to establish the fact that the dog was run over and killed by the locomotive of a fast freight train. This occurred on appellant's road called the White River Branch, north of Newport, Ark. The witnesses introduced by the plaintiff also testified that there were no alarm signals given at the time or immediately before the dog was struck and killed. The witnesses testified that they saw the dog on the railroad right of way, going in the direction of the track, as the train approached, and one witness testified that he saw the dog on the track as the train approached. They testified that, immediately after the train passed, they found the dead body of the dog: the head had been completely severed, and was lying on the outside of the rails, and the mangled body was lying between the rails; the flesh was warm and bloody, and the body was still quivering. Defendant introduced no testimony.

The court, over the objections of plaintiff's counsel, gave the following instruction:

"Instruction No. 2. The burden of proof is upon the plaintiff to show that the employees of the defendant in charge of the engine pulling the train, which killed the dog, carelessly, negligently, or willfully ran over the dog, before you would be authorized to find for the plaintiff."

And the court refused to give the following instruction requested by the plaintiff:

"Instruction No. 1. Gentlemen of the jury, you are instructed that dogs are personal property, for the negligent killing of which railroad companies are liable, although the dog may not have been assessed for taxes, if the proof shows that the dog was valuable, and the proof that the dog was killed by the running of defendant's train is prima facie evidence of negligence on the part of the company; and that circumstantial evidence is sufficient to prove the killing of the dog. The burden is on the defendant company to show that it was not negligent."

Thus it is seen that...