Railway Co. v. Thomason

• Decision Date: 12 May 1894
• Parties: RAILWAY COMPANY v. THOMASON
• Court: Arkansas Supreme Court

26 S.W. 598

59 Ark. 140

RAILWAY COMPANY v. THOMASON

Supreme Court of Arkansas

May 12, 1894

Appeal from Washington Circuit Court, EDWARD S. MCDANIEL, Judge.

Action by Thomason against the St. Louis & San Francisco Railway Co. The facts are stated in the opinion.

Judgment reversed and cause remanded.

E. D Kenna, B. R. Davidson and H. S. Abbott for appellant.

1. Defendant admitted the ownership and the injury by the railway company. This made a prima facie case for plaintiff and threw the burden of proof on defendant. 39 Ark. 413; Mansf. Dig. sec. 2871; 32 id. 593; 30 id. 285-297. Having the burden of proof, defendant was entitled to open and conclude the argument. Mansf. Dig. sec. 5131, subd. 6; 13 Ark 474-479. And it was reversible error to deny this right. 29 Ark. 151-3; 32 id. 593.

2. The testimony completely overcame the prima facie case, and defendant was entitled to a verdict. 53 Ark. 93; 40 id. 336; 41 id. 161; 48 id. 366.

3. It was error to refuse the fifth instruction. 33 Wis. 552.

T. M. Gunter for appellee.

1. The negligence was still denied, and the burden was on plaintiff, and he was entitled to open and conclude the argument. Mansf. Dig. sec. 5131.

2. The fifth instruction for appellant was properly refused. It was designed to draw the attention of the jury especially to the railroad witnesses. Const. sec. 23, art. 7; 49 Ark. 439.

3. A failure to sound the alarm at a public crossing is negligence, and the company would be liable, whether its servants saw the stock or not. Mansf. Dig. sec. 5478; 55 Ark. 200; 56 id. 155.

4. There is an irreconcilable conflict in the evidence. The jury is judge of the weight of evidence. There was ample evidence to support the verdict. 13 Ark. 285; ib. 296; ib. 306.

OPINION

WOOD, J.

Appellee obtained judgment against appellant for $ 85, for killing and injuring stock. The record shows: "The defendant, in open court, agreed to admit that the plaintiff's horse was of the value of $ 75, and that same had been killed as alleged, and that plaintiff's mule was struck by defendant's train at same time and place, and damaged to the extent of ten dollars, and offered to take the burden of proof. Thereupon, without objection, defendant proceeded to pass upon the jury; and, having passed upon same, plaintiff also passed upon the jury, and, also without objection from plaintiff or his counsel and under the direction of the court, defendant proceeded to state his cause to the jury; and thereafter plaintiff by counsel stated his cause to the jury. Thereupon defendant, without objection of plaintiff, and under the direction of the court, introduced its proof." And, after the proof was in, the record recites that "the attorney for the railway company asked leave to make the opening and concluding arguments to the jury, but the court refused to allow him to do so, and ruled that the attorneys for the plaintiff were entitled to open and conclude the argument; to which the defendant by attorney at the time excepted." This is the last ground of the motion for new trial.

1. The admission of appellant upon the record was equivalent to an abandonment of that part of his answer denying the killing. The injury being admitted, the law makes it prima facie negligent. L. R. etc. Ry. v. Henson, 39 Ark. 413. The appellant having also admitted the extent of the injury, had no proof been introduced, the verdict should have been for appellee, i. e., the appellant would have been defeated. Mansf. Dig. 2871. After the appellant, under the direction of the court, and by the acquiescence of the appellee, had taken the initiative in passing upon the jury, stating the case and introducing the proof, there should not have been a "change of front" at the critical moment when it expected the only reward for its admission, to-wit: the right to begin and conclude the argument. Mansf. Digest, sec. 5131; Rogers v. Diamond, 13 Ark. 474 at 474-79.

2. A witness was asked: "Have you noticed how far a head light throws a light forward to the right and left?" and answered, "Yes, somewhat." "How far does it throw a light forward, and how wide a space does it light?" Ans. "It would throw a light about 100 yards in front, I think, and cover a space from fifty to 100 feet wide, I suppose. I never was on an engine at night. The closer the engine, the narrower the light, I suppose; and the further from it, the dimmer. The light is concentrated ahead, and does not fall on the track close to the engine." The admission of this testimony is assigned as error. We can see nothing in the distance or...