St. Louis, I. M. & S. Ry. Co. v. Bragg

• Decision Date: 11 March 1899
• Citation: 50 S.W. 273
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. BRAGG.
• Court: Arkansas Supreme Court

50 S.W. 273

ST. LOUIS, I. M. & S. RY. CO. v. BRAGG.

Supreme Court of Arkansas.

March 11, 1899.

Appeal from circuit court, Ouachita county; Charles W. Smith, Judge.

Action by Tom Bragg against the St. Louis, Iron Mountain & Southern Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

Dodge & Johnson, for appellant. Smead & Powell, for appellee.

HUGHES, J.

This is an appeal from a judgment for damages for the value of a mule alleged to have been killed through the negligent operation of appellant's train. The facts, briefly stated, are about as follows: "Plaintiff's mule and another animal were grazing, one on the side of defendant's track and one on the track, when a train was approaching. When within from 200 to 400 yards of the animals, the whistle was sounded, and the engineer immediately commenced to reduce the speed of his train. Plaintiff's mule started down the track, and ran into a culvert or trestle. The other left the track, and the train came to a full stop about the time the animal jumped into the culvert. Seeing that the animal was fastened in the trestle, the engineer pulled up his train until within from 10 to 50 steps of the trestle, and stopped. He and the crew alighted from the train, went to where the animal was, and pulled her out of the trestle. They found that the mule had broken one hind leg and one fore leg when she jumped into the trestle. In lifting her out of the trestle they did not injure her, but did it as best they could. The engine did not strike the animal, and was never nearer to it than two telegraph poles — some 200 yards — until after it pulled up and stopped, a short distance from the trestle."

This case is ruled by the case of Railroad Co. v. Newman, 36 Ark. 607. In that case this court said: "There was no proof of any hindrance or impediment in the way of the cow's getting off the track, or of any facts or circumstances from which the persons in charge of the train might have foreseen, as a probable consequence of not sooner stopping the train, an injury to her, or that she would, in her fright, attempt to pass over the culvert, and not go off the track, as the other cattle had done. For anything appearing to the contrary, egress from the track at the culvert was as possible and safe as where the others left it. Though the injury might not have happened if the train had been sooner stopped, yet if it was not to have been foreseen or anticipated by the person in charge of...