Railway Co. v. Goolsby

• Decision Date: 27 January 1894
• Citation: 24 S.W. 1071,58 Ark. 401
• Parties: RAILWAY COMPANY v. GOOLSBY
• Court: Arkansas Supreme Court

24 S.W. 1071

58 Ark. 401

RAILWAY COMPANY v. GOOLSBY

Supreme Court of Arkansas

January 27, 1894

Appeal from Clay Circuit Court, Western District, JAMES E. RIDDICK Judge.

Action by J. W. Goolsby against the St. Louis, Iron Mountain & Southern Railway Company. The case is stated by the court as follows: --

Appellee says the railroad company, through the negligence of its employees, wrecked a train-load of cattle which it was transporting from Texas to St. Louis, and negligently permitted said cattle to escape into the range, said cattle being infected with Texas fever, or some other infectious disease, which fact was known to appellant and unknown to appellee; that said infected cattle, commingling with his own, communicated to them the disease which killed four and rendered eight more worthless. For loss of cattle, time attention and feed, he says he was damaged in the sum of $ 750. The appellant denies the several allegations of the complaint, as laid, and alleges that whatever damages plaintiff (appellee) sustained were the result of his own negligence in taking care of and herding his stock.

The appellee, among other things, said that the cattle which were found among his, from the wrecked train, were Texas cattle. While in Texas, he had seen "cattle dying and dead all over the prairies, and asked what the matter was, and they said 'Texas fever.'" He left the bars down at his lot so that the two (which he claims were infected) "could go in and out when they wanted to;" allowed them to go in his lot, and eat up the feed which his cattle had left--green corn, etc. The cattle ranged around the mill and were with his cattle about ten days. When he heard that there was a reward of five dollars per head offered for them he left word with Mr. Miller, if any one came for the cattle to show them, but to make the company pay for it. He heard of the reward being offered some three or four days after the cattle had been with his; and when they came for the cattle, a few days after, he showed them the cattle, and got the reward. This is enough of the evidence to make intelligible the opinion.

The court declared the law of the case to be as follows, to which no objection was made by the defendant:

"4. You are instructed, that before the plaintiff can recover in this action, he must prove by a preponderance of the evidence each and all of the following facts: (1) That the cattle being transported on defendant's train were infected with Texas fever, or some other infectious disease. (2) That said cattle so infected, or some of them, by the negligence of defendant, were allowed to escape and run at large in Clay county. (3) That said cattle, so having escaped, came in contact with the cattle of plaintiff. (4) That by reason thereof such infectious disease was communicated to plaintiff's cattle. (5) That, by reason of such disease being communicated, plaintiff sustained loss and damage. (6) That defendant's servants in charge of the cattle at the place of wreck knew, or had notice, at the time, that the cattle being transported were infected with such disease, or that they were from a section infected with such disease, and were liable to communicate the disease to other cattle in the neighborhood of the wreck, in case they were allowed to escape and run at large. If all these facts are proved, the finding should be for plaintiff."

"5. You are instructed that it is not negligence to allow cattle, or other domestic animals, to run at large, nor can the owner, possessor, or bailee be held liable for damages resulting therefrom by reason of said animals communicating an infectious disease to other cattle, unless it be shown that the fact that the animals were infected and liable to communicate the disease to other animals was known to the person suffering them to run at large."

The court gave the following prayers over defendant's objection:

"3. While the burden is upon the plaintiff to prove his own case, yet, if the plaintiff makes out a case, and the defendant relies upon contributory negligence on part of plaintiff to defeat his action, the burden to prove such contributory negligence is on the defendant, unless it appears from evidence on the part of plaintiff.

"6. Even if you believe, from the evidence, that the disease with which plaintiff's cattle were affected was communicated to them from the stray cattle which escaped from the wrecked train, and that defendant was guilty of negligence in permitting such cattle to go at large, yet, if you further find that plaintiff knew or had notice that such stray cattle were from the wrecked train, and that they were Texas cattle, and from a district infected with Texas fever, and liable to communicate disease, and that, with this knowledge, he negligently permitted such cattle to frequent the pen in which his own cattle stayed, and this contributed in any respect to his own injury, you will find for defendant--for the reason that, when the wrong of both parties contributed to the injury, the law declines to apportion the damages, and leaves the injured party without any compensation."'

Reversed and remanded.

Dodge & Johnson for appellant.

1. Scienter on part of defendant was charged in the complaint but not shown nor attempted to be shown on the trial by any testimony whatever. 37 Kas. 133; 38 id. 550; ...