St. Louis, Iron Mountain & Southern Railway Company v. Rhoden

• Decision Date: 13 December 1909
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. RHODEN
• Court: Arkansas Supreme Court

123 S.W. 798

93 Ark. 29

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. RHODEN

Supreme Court of Arkansas

December 13, 1909

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; affirmed.

Judgment affirmed.

Kinsworthy & Rhoton and James H. Stevenson, for appellant.

The testimony of the engineer was uncontradicted, and the jury were not warranted in disregarding it. 78 Ark. 234; 80 Ark 396; 89 Ark. 120. The presumption of negligence is rebutted when it is shown that the engineer, after discovering the dog, could not have prevented the injury. 80 Ark. 396; 78 Ark. 234; 69 Ark. 619. The engineer had a right to presume that the dog would leave the track. 37 Ark. 593; 69 Ark. 619. There is no liability for killing a dog where the engineer has turned loose the steam cocks to frighten it away. 33 S.E 466. The same degree of diligence is not required as in case of other animals. Elliott, Railroads, § 1190; 40 F. 281; 136 N.C. 554; 100 Tenn. 317; 40 L. R. A. 518; 66 Am. St. R 755; 53 S.E. 534.

J. C. Ross, for appellee.

The presumption of negligence from killing a dog is the same that arises in other stock cases. 117 S.W. 779; 63 Ark. 636. The engineer's testimony that, after discovering the dog's peril, he did not have time to sound the alarm, without going into particulars, will not overcome the presumption of negligence, as the jury might find to the contrary, if all the facts were before them. 76 Ark. 100. Appellee's dog was property, for the negligent killing of which appellant is liable. 63 Ark. 643; 72 Ark. 23.

OPINION

FRAUENTHAL, J.

This was an action brought by the plaintiff below, R. C. Rhoden, against the St. Louis, Iron Mountain & Southern Railway Company for the recovery of damages for the alleged negligent killing of a fine blooded bird dog. The dog was killed about 12 o'clock on October 22, 1907, by one of defendant's fast mail trains. The testimony on the part of the plaintiff tended to prove that just after the train had passed Perla, a station on defendant's line of railroad, the dog was seen upon the railroad track a short distance in front of the train and trotting or running down the track in the same direction in which the train was moving. The dog continued to run in this manner in front of the running train for a distance of about one-half a mile, when it was overtaken by the train and killed. For this entire distance the track was straight, and the dog could readily have been seen by the employees in the cab of the engine. The employees did not give any alarm by whistle, and did not ring the bell, and did not open the cylinder cocks; and as one of the witnesses expressed it, the train "just came right on and hit the dog without doing anything."

The engineer testified that when he first noticed the dog it was running along by the side of the track, and then got on the track at a point about 100 feet in front of the engine; that the train was running at the rate of fifty miles an hour, and that he could not have stopped the train in time to have avoided striking the dog. He stated that when he observed the dog he kicked open the cylinder cocks in order to frighten it from the track; that he did not blow the whistle or ring the bell, because he thought that the opening of the cylinder cocks was the best method to frighten the animal from the track; that he did not attempt to slacken the speed of the train because at the rate of speed that the train was moving he could not have prevented striking the dog.

On the part of the plaintiff, the court in effect instructed the jury that it was the duty of the defendant to keep a constant lookout for persons and property upon its tracks, and that if the dog was killed by reason of the failure to keep such constant lookout the defendant would be liable. The following instruction was also given at the request of the plaintiff:

"The court instructs the jury that it was the duty of the servants and agents of defendant in charge of the engine of said train to use ordinary care to avoid killing plaintiff's animal by resorting to the usual means of sounding the stock alarm, ringing the bell or opening the cylinder cocks to scare said animal off the track; and if you find that said servants failed to use ordinary care to frighten said animal off the track, and that such failure resulted in the killing of plaintiff's dog, then your verdict must be for the plaintiff."

At the request of the defendant the court in effect instructed the jury that the engineer in charge of the train was under no obligation to try to stop the train until he saw that the dog was in a place of danger and would be injured unless he did stop; and, after discovering the peril of the dog, if he did everything reasonably within his power to frighten the dog from the track, the plaintiff could not recover. It also gave to the jury at the request of the defendant the following instruction:

"5. If you believe from the evidence that the engineer in charge of defendant's train which struck plaintiff's dog was keeping a constant lookout for persons and property on the rail road track, and that, after he saw plaintiff's dog and became aware of its perilous situation, he did everything reasonably within his power to frighten it from the track, and that it was impossible for him to stop his train by the use of reasonable diligence in time to avoid striking said dog, then your verdict should be for the defendant."

The defendant asked the court to give to the jury the following instructions, which were refused:

"1. Under the pleadings and the proof in this case you will return a verdict for the defendant.

"3. You are instructed that when the engineer in charge of defendant's train saw plaintiff's dog running along beside the railroad track he had a right to presume that the dog would leave the track before being struck, and, he was warranted in acting upon that belief. If you believe from the evidence that after he became aware of the dog's peril he did what he reasonably could to avoid striking it, he was not negligent, and your verdict should be for the defendant.

"4. You are instructed that the same rule does not apply in the case of dogs as in the case of live stock. A dog is an animal of superior intelligence, and possesses greater ability to avert injury; and the presumption is that he has the instinct and ability to get out of the way of danger, unless his freedom of action is interfered with by other circumstances at the time and place. On this account, the diligence and care which locomotive engineers owe to the owners of dogs is placed on the same footing with that of a man walking upon or near a railroad track apparently in possession of all his faculties, and the engineer would be warranted in acting upon the belief that the dog would be aware of the approaching danger, and would get out of the way in time to avoid injury.

"6. There is no presumption of negligence on the part of the defendant from the fact of killing a dog.

"7. If you believe from the evidence that plaintiff's dog was killed while on defendant's track, you are instructed that plaintiff is not entitled to...