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

• Decision Date: 29 November 1909
• Citation: 123 S.W. 390
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. GOSS.
• Court: Arkansas Supreme Court

123 S.W. 390

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

Supreme Court of Arkansas.

November 29, 1909.

Appeal from Circuit Court, Boone County; Price B. Hudgins, Judge.

Action by M. F. Goss against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The appellee alleged in his original complaint that the defendant company, on the 11th day of July, 1908, by its freight train known as "Red Ball" No. 253, at or near mile post No. 64 in said county, negligently struck and killed a mare, and negligently chased said mare for a long distance, and onto an open span to a bridge, where her feet went through, and she lay helpless on the track in front of said train, and that said company and its agents stopped said train, and wantonly rolled said mare off the track and killed her; that said mare was the property of the plaintiff, and valued at $175. After the evidence was in and the prayers for instructions presented, the court permitted appellee to amend his complaint by adding thereto the allegation that the defendant company "negligently ran said mare into said bridge where she was injured, and from which injuries she died." Appellant excepted to this ruling. All material allegations were denied.

The evidence of appellee's witnesses tended to show that they observed appellant's train stop at a water tank about one-fourth of a mile from the depot at Myrtle, Ark.; that as the train came on from the water tank, and as it neared the depot, they saw appellee's mare, mule colt, and filly running by the side of the track about 40 or 50 yards in front of the train; that the train did not slow up, nor did the whistle blow; only a few clangs of the bell were sounded, and they kept going. In a little while they heard the train stop. Then there were three short blasts of the whistle, and the train moved a little, and all was still. Witnesses went down to the train and found it standing about 100 feet from the bridge over Bear creek. They could see the trainmen at work out on the bridge. One of the witnesses started out to where the trainmen were at work, and the latter requested that the witness go back. The witness did so, and the colt came off the end of the bridge. The mare was found dead next morning under the second span of the bridge. One of the witnesses stated that: "Shortly after leaving the depot there is a 37-foot fill about 200 yards long, then a side cut 100 yards long, then a big cut 27 feet deep about 200 yards long; then at the south end of this big cut there is another fill of 20 feet 100 yards long, then another little side cut, that being 60 feet from the approach to the bridge."

Appellee testified as follows: "That he was the owner of the mare; that he went to the bridge over Bear creek on the morning after she was killed, and found her lying in the edge of the creek bed under the bridge; that she was torn in the stomach, and head was caved in, and there was a cut place on her thigh that looked like she might have been struck by the pilot of the engine; that she was the only one of the three animals that had shoes on, and that he traced where she had run on the right of way by her tracks; that she had run along by the side of the rails for some 200 yards from the place that she got on the track at the crossing at Myrtle, and then got in the middle of the track and ran all the rest of the way of the one-half mile, down between the two rails; that the mare was six years old, was an extra good brood mare and good working animal, and worth $150; that he examined her limbs and none of the bones in her legs were broken."

The witnesses for appellant testified as follows:

O. A. Adkins: "That he was the engineer in charge of train No. 253, known as the `Red Ball,' going south, on June 11, 1908; that he had taken water at the tank, and was pulling out; that he had passed the depot when he saw three animals on the track; that he sounded the stock alarm, blowing five or six short, sharp blasts of the whistle, and the stock ran down the track; that he shut off the steam and put on the air, and had his train under complete control, running at about four or five miles per hour; that he first saw the stock between the depot and the cut, which is about 300 yards from the depot; that he kept close enough to the stock to keep them in the light of the headlight, so that he could see what became of them; that he did not blow the stock alarm any more for fear that he would scare them worse and increase their peril; that there are several places before they get to the bridge where they could have gotten off the track, and that the filly did get off before they went into the last cut; that when he discovered they had run into the open part of the bridge, he stopped about 20 feet from the approach of the bridge and backed the train about 80 feet, and that he, the fireman, and brakeman went out on the bridge; that they got the colt off, but that the mare was down in between the ties floundering around, and they did not touch her, and she finally fell off the side of the bridge; that he could stop the train...