Railway Co. v. Taylor

• Decision Date: 07 January 1893
• Citation: Railway Co. v. Taylor, 57 Ark. 136, 20 S. W. 1083 (Ark. 1893)
• Parties: RAILWAY COMPANY v. TAYLOR
• Court: Arkansas Supreme Court

20 S.W. 1083

57 Ark. 136

RAILWAY COMPANY v. TAYLOR

Supreme Court of Arkansas

January 7, 1893

APPEAL from Jefferson Circuit Court, JOHN M. ELLIOTT, Judge.

Taylor brought suit against the St. Louis, Iron Mountain & Southern Railway Company, alleging that defendant negligently ran one of its trains through the streets of Pine Bluff, killing plaintiff's mule, valued at $ 125, and damaging his dray to the extent of $ 10. The answer denied negligence on the part of defendant, and charged that plaintiff was guilty of contributory negligence.

Plaintiff testified that he was not present when the mule was killed that the mule did not belong to him, but that he had possession of it on trial, under a contract to purchase it if satisfactory; that he had not paid for it when the accident occurred, but intended to pay for it; that as soon as the mule was killed he paid $ 90 as part of the purchase price ($ 125), and agreed to pay the balance as soon as he collected it from the railroad.

The drayman who was in charge of plaintiff's team at the time the mule was killed testified that on the day of the accident he was sent with his dray to the depot to haul a car-load of flour to the store. With another drayman he went to the depot. The depot agent went with them and pointed out the car. They told the agent that it was a dangerous place. He said that that was the only place he had; he put the car there for them to unload. They had unloaded two or three dray-loads before the accident happened. Witness drove in next to the car loaded with the flour, and placing his mule and dray next to the car door, went into the car to handle the flour. The place he drove his dray was on the south side of the freight car and in between the main track and the car and was the usual place to unload. When he had loaded two sacks on his dray, he heard the passenger train coming. Witness jumped onto his dray, seized the reins and gave a signal to the engineer to stop his train. He did this by waving his hat, but the engineer paid no attention, but came right along, struck the tongue of the dray, broke it, and throwing the mule under the engine, broke its leg. Witness had hauled freight from the same place before, and knew it was a dangerous place.

After plaintiff had testified, defendant asked leave to amend its answer in words as follows, to-wit:

"That the defendant further denies that the said plaintiff, E. L Taylor, was the owner of the mule mentioned in the complaint in this action, at the time of the accident in which said mule was alleged to have been injured."

The court refused to allow the amendment to be made, and defendant excepted.

The court gave the following instructions to the jury over defendant's objection:

"The injury of the mule being admitted, the law presumes negligence on the part of the defendant, and the burden of proving proper care on the part of the defendant is cast upon it, and if it fails to show proper care and caution to prevent the killing, they will find for the plaintiff." Other instructions by the court were given which it is not material to set out.

After the court had declared the law as set out above, the defendant moved the court that it be given the opening and closing of the argument to the jury, for the reason that, under the pleadings in the case and the instructions given to the jury by the court, no burden rested upon plaintiff to maintain any issue then made in the case, and that, the entire burden of proof having been placed upon the defendant, it was in law entitled to have said request granted. The motion was overruled by the court and all proper exceptions saved.

The jury returned a verdict of $ 156.87 for the plaintiff. A motion for a new trial was filed and overruled, and defendant appealed.

Judgment affirmed.

Dodge & Johnson for appellants.

1. Section 5544 Mansf. Dig. applies only to stock running at large, and not to human beings, or to stock in charge of or under control of human beings at the time of the injury. 49 Ark. 264.

2. It was error to refuse to allow defendant to amend its answer denying that plaintiff was the owner of the mule. 42 Ark. 57; ib. 503; 10 Hun, 109; 41 Barb. 337; 3 Abb. Ct. App. 129; 3 Keyes, 428; 44 Ark. 527.

3. The court, having instructed the jury that the burden of proof was upon defendant, erred in refusing to permit defendant to open and close the case. Mansf. Dig. sec. 5131, par. 6.

4. Upon the facts proven, plaintiff's driver was guilty of contributory negligence. 1 N.W. 37.

Bell & Bridges for appellee.

1. Neither plaintiff nor his driver was a trespasser; the dray was between the tracks by permission and invitation of defendant's agent, and there was no trespass. The injury being admitted, the law presumes negligence, and throws on defendant the burden to prove proper care and caution or to prove contributory negligence. 52 Ark. 402; 55 Ark. 248.

2. The burden was on plaintiff to prove: 1. That it was his mule and dray. 2. That it was damaged by negligence. 3. The amount of damage. The burden was on him to pro ve these, and he was entitled to open and close

OPINION

COCKRILL, C. J.

1. Construing the evidence most strongly in favor of the appellant, Taylor had a special property in the animal killed which empowered him to recover its full value. St. Louis, etc. Railway v. Biggs, 50 Ark. 169, 6 S.W. 724. No prejudice results to the railway, therefore, in permitting him to maintain the action.

2. The statute declares that railroads operated in this State shall be responsible for all damages done or caused by the running of their trains. Mansf. Dig. sec. 5537.

In a suit against a railway company to recover for an injury done to property by a running engine or train, this statute casts upon the company the burden of showing due care on its part. That is not the express provision of ...