Saint Louis Southwestern Railway Company v. Bowen

• Decision Date: 21 January 1905
• Citation: 84 S.W. 788,73 Ark. 594
• Parties: SAINT LOUIS SOUTHWESTERN RAILWAY COMPANY v. BOWEN
• Court: Arkansas Supreme Court

84 S.W. 788

73 Ark. 594

SAINT LOUIS SOUTHWESTERN RAILWAY COMPANY v. BOWEN

Supreme Court of Arkansas

January 21, 1905

Appeal from Arkansas Circuit Court, GEORGE M. CHAPLINE, Judge.

Suit by W. C. Bowen against St. Louis Southwestern Railway Company to recover damages caused by the killing of plaintiff's horse by engine and train of defendant at a highway crossing. Plaintiff recovered, and defendant appealed. Affirmed.

Judgment affirmed.

Sam H West and J. M. & J. G. Taylor, for appellant.

The third instruction was misleading. The jury were told, in effect, that, in defending against the presumption of negligence, etc., they could consider whether or not the railroad servants kept a lookout over the right of way instead of the track. 48 Ark. 366; 52 Id. 62;Acts 1891, p. 213; 60 Ark. 188.

J. H Harrod, for appellee.

Even if the third instruction is technically erroneous, the judgment is right on the whole case. It was not prejudicial. An engineer cannot keep a lookout along the track without looking along the right of way within the limits of his vision.

OPINION

HILL, C. J.

This case is brought here to review the following instruction: "Ordinary care in the management of their trains is the measure of vigilance which the law exacts of railroad companies to avoid injury to domestic animals, and this means practically that companies' servants are to use all reasonable efforts to avoid harming an animal after it is discovered, or might by proper watchfulness be discovered, in or near the track; and if you believe from the evidence that the defendants kept a constant lookout for stock along their right of way, and that, after seeing the horse or by proper watchfulness could have seen it, used reasonable care to avoid the killing, then you will find for the defendants."

This instruction is based upon section 6607 Kirby's Digest, which requires persons running trains to keep "a constant lookout for persons and property upon the track." The instruction tells the jury that this requires the watchfulness near the track as well as on it, and then says that a constant lookout must be kept along the "right of way." It is insisted that this broadens the duty of the railroad, and that it is error. With the exception of the use of the term "right of way," the instruction is in exact accord with the construction placed on this statute in St. Louis S.W. Ry. Co. v. Russell, 64 Ark. 236, 41 S.W. 807. I...