St. Louis S. W. Ry. Co. v. Russell

• Citation: 34 S.W. 1059
• Parties: ST. LOUIS S. W. RY. CO. v. RUSSELL et al.
• Decision Date: 21 March 1896
• Court: Supreme Court of Arkansas

34 S.W. 1059

ST. LOUIS S. W. RY. CO. v. RUSSELL et al.

Supreme Court of Arkansas.

March 21, 1896.

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

Action by J. C. Russell and others against the St. Louis Southwestern Railway Company. Judgment for plaintiffs. Defendant appeals. Reversed.

Appellees filed their complaint, containing 39 paragraphs, in each of which they alleged the negligent killing of certain live stock, giving the description and value of each animal killed, and the respective dates of the killing. They alleged a failure to comply with section 6350, Sand. & H. Dig., and asked for double damages. Motions were made to make more specific and to strike, but these have not been urged here. The answer was a denial of all the material allegations, admitted the killing of certain stock, but alleged that said killing was unavoidable, and set up contributory negligence. The trial resulted in a verdict for $2,500, and judgment was entered accordingly, which we are asked to reverse.

Sam H. West and Gaughan & Sifford, for appellant. Scott & Jones, for appellees.

WOOD, J.

The only question we find it necessary to discuss is presented by the court's refusing to give the following, asked by the appellant: "No. 2. The jury are instructed that while it is the duty of a railroad company, to the owner of stock which may have come upon its track without negligence on the part of the owner, that the employés in the charge of its trains shall keep a lookout for the purposes of discovering said stock, and, after discovery, that said employés use all proper and available means to prevent the striking of said stock, still it is not required that both the fireman and engineer in charge of a train, both at the same time, keep a constant lookout; and if the jury find that any of plaintiffs' stock sued for in this action were, without plaintiffs' negligence, on defendant's railroad, and were killed by its trains, and that the engineer in charge of the train was keeping a careful lookout for stock, and that he discovered said stock as soon as the light from the headlight of the engine would permit, and that, after discovering said stock, the engineer used all the means at his command to prevent the killing or striking said stock, then, as to such stock, your verdict should be for defendant, and it is not necessary that said stock be posted," — to which refusal the appellant at the time excepted. It was in proof that one of the engineers of appellant killed three mules and two horses of appellees, worth $450, by running an engine over same. It was a level straight track where the injury occurred. The engineer was looking ahead, and says he saw the stock as soon as the light would shine on them, so that he could see what they were. By the light from the engine, he could see a little over 200 or 250 feet. The animals, he supposed, were about 200 feet in front when he saw them on the track. It was impossible to prevent striking them after he saw them. He stopped the train as soon as it was possible to do so. He did not have time, after attempting to stop, to blow the whistle or ring the bell to scare stock off the track. The headlight on the engine cast its light as far ahead as those in general use. This evidence was sufficient to entitle the appellant to the instruction asked. Under the statute (Sand. & H. Dig. § 6207), it is the duty of railroads to keep a constant lookout for persons and property upon their tracks. Before the passage of this act, it was not negligence for railroads to fail to keep a lookout for persons on their tracks; and...