St. Louis & S. F. Ry. Co. v. Thomason

• Decision Date: 12 May 1894
• Citation: 26 S.W. 598
• Parties: ST. LOUIS & S. F. RY. CO. v. THOMASON.
• Court: Arkansas Supreme Court

26 S.W. 598

ST. LOUIS & S. F. RY. CO. v. THOMASON.

Supreme Court of Arkansas.

May 12, 1894.

Appeal from circuit court, Washington county; Edward S. McDaniel, Judge.

Action by Richard A. Thomason against the St. Louis & San Francisco Railway Company for the killing of plaintiff's live stock. From a judgment for plaintiff, defendant appeals. Reversed.

Appellee obtained judgment against appellant for $85, for killing and injuring stock. The record shows: "The defendant, in open court, agreed to admit that the plaintiff's horse was of the value of $75, and that same had been killed as alleged, and that plaintiff's mule was struck by defendant's train at same time and place, and damaged to the extent of $10, and offered to take the burden of proof. Thereupon, without objection, defendant proceeded to pass upon the jury; and, having passed upon same, plaintiff also passed upon the jury, and also, without objection from plaintiff or his counsel, and under the direction of the court, he proceeded to state his cause to the jury; and thereafter plaintiff, by counsel, stated his cause to the jury. That thereupon defendant, without objection of plaintiff, and under the direction of the court, introduced its proof." And, after the proof was in, the record recites that "the attorney for the railway company asked leave to make the opening and concluding arguments to the jury, but the court refused to allow him to do so, and ruled that the attorneys for the plaintiff were entitled to open and conclude the argument; to which the defendant, by attorney, at the time excepted." This is the last ground of the motion for new trial.

E. D. Kenna, B. R. Davidson, and H. S. Abbott, for appellant. T. M. Gunter, for appellee.

WOOD, J. (after stating the facts).

1. The admission of appellant upon the record was equivalent to an abandonment of that part of his answer denying the killing. The injury being admitted, the law makes it prima facie negligent. Railway Co. v. Henson, 39 Ark. 413. The appellant having also admitted the extent of the injury, had no proof been introduced, the verdict should have been for appellee, i. e. the appellant would have been defeated. Mansf. Dig. § 2871. After the appellant, under the direction of the court, and by the acquiescence of the appellee, had taken the initiative in passing upon the jury, stating the case, and introducing the proof, there should not have been a "change of front" at the critical moment when it expected the only reward for its admission, to wit, the right to begin and conclude the argument. Mansf. Dig. § 5131; Rogers v. Diamond, 13 Ark. 474-479.

2. A witness was asked, "Have you noticed how far a headlight throws a light forward to...