St. Louis, M. & S. E. Ry. Co. v. Busick

• Decision Date: 01 April 1905
• Citation: 86 S.W. 674
• Parties: ST. LOUIS, M. & S. E. RY. CO. v. BUSICK.
• Court: Arkansas Supreme Court

86 S.W. 674

ST. LOUIS, M. & S. E. RY. CO. v. BUSICK.

Supreme Court of Arkansas.

April 1, 1905.

Appeal from Circuit Court, Randolph County; John W. Meeks, Judge.

Action by Charles S. Busick against the St. Louis, Memphis & Southeastern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

L. T. Parker and Orr & Luster, for appellant. Chas. S. Busick, pro se.

HILL, C. J.

Busick sued the railroad company, alleging that it constructed a cattle guard in such a negligent and defective manner that it would not prevent the passage of stock over it, and left it in an unsafe condition, and that by reason thereof his mare was injured in it, and died from such injuries, and prayed judgment for her value. A demurrer to the complaint was overruled, issue taken on the answer, a trial by jury, and verdict for Busick, and from judgment thereon the railroad has appealed.

Among other instructions, the court gave this: "If the jury find from a preponderance of the evidence that the cattle guard in which it was alleged plaintiff's horse was injured was defectively constructed, so as not to effectively prevent stock from passing over the same, and that plaintiff's horse was injured while attempting to pass over the same, then you will find for the plaintiff in such sum as the evidence may show was the value thereof at the date of the injury." Prior to the passage of the act of April 10, 1893, which is contained in sections 6644, 6645, Kirby's Dig., there was no duty resting upon railroad companies to construct stock guards. Defective stock guards, or their absence, or other unsafe places, upon the right of way, where there was no duty owing to the public, gave rise to no cause of action for injuries received from them. Railway v. Walbrink, 47 Ark. 330, 1 S. W. 545; Railway v. Fairbairn, 48 Ark. 493, 4 S. W. 50; Railway v. Ferguson, 57 Ark. 16, 20 S. W. 545, 18 L. R. A. 110, 38 Am. St. Rep. 217; Railway v. Vosburg, 71 Ark. 232, 72 S. W. 574. Therefore the whole remedy for injuries from stock guards must be looked for in this statute, and not elsewhere, as there is no common-law remedy for such injuries. Railway v. Ferguson, 57 Ark. 16, 20 S. W. 545, 18 L. R. A. 110, 38 Am. St. Rep. 217; Railway v. Vosburg, 71 Ark. 232, 72 S. W. 574.

The first section (section 6644, Kirby's Dig.) provides when and where stock guards may be required, and that they shall be "suitable and safe stock guards" and that they must be kept in repair. The next section (section 6645, Kirby's Dig.) provides that a failure to comply with the requirements preceding shall render the railroad company liable to the person aggrieved thereby for a penalty of not less than $25 nor more than $200 for each and every offense,...