St. Louis-San Francisco Railway Co. v. Cole
| Decision Date | 12 May 1930 |
| Docket Number | 328 |
| Parties | ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. COLE |
| Court | Arkansas Supreme Court |
Appeal from Lawrence Circuit Court, Eastern District; S. M. Bone Judge; reversed.
Judgment reversed, and case dismissed.
E. T Miller, E. L. Westbrooke, Jr., and E. L. Westbrooke, for appellant.
Cunningham & Cunningham, for appellee.
Joe B Cole, the appellee, was the owner of a team of mules, wagon and harness. The mules were hitched to the wagon in front of the house of Mr. Jones, but were not hitched to anything to prevent them moving. The lines were tied to the wagon standard, and the team was left standing, no one about them. Mr. Jones had hitched them to the wagon and left them standing in front of the house, and they walked off, went to the railroad crossing, and were struck by a train, and the mules were killed, the wagon and harness damaged. After Jones had tied the lines in front of the wagon and left the mules unhitched, he walked towards the railroad track, and was on the track when the mules started towards the track. The railroad crossing where the mules were killed was about 170 steps from the front door of Mr. Jones' house, in front of which the mules were left.
There is some conflict in the testimony as to whether the mules in going from Jones' house to the railroad crossing were walking fast or slow, but all of the witnesses agree that they were walking. Some of appellant's witnesses say they were walking at a good fast walk, and appellee's witnesses testify that they were walking slow. The track was straight and unobstructed for more than a quarter of a mile from the crossing where the mules were killed, in the direction from which the train came.
The engineer, King, testified that he was the engineer on a passenger train of six steel coaches and locomotive, going south towards Memphis. That he struck the team of mules a short distance west of Hoxie, was running about sixty miles an hour. He also testified that he sounded the whistle at the whistling post for the crossing, following that with the station whistle, and that the whistle was sounded all the way until they were over the crossing. He said he turned on the bell ringer and the bell was ringing. That the fireman hollered at him, and he slipped the brakes over to the emergency, and then saw the heads of the mules as he struck them. The mules came on to the track from the left side and had never been in the view of the engineer. He testified that he had been an engineer since May 12, 1905; that he was looking ahead all the time. The front of the engine and boiler obstructed his view of the mules, and when the fireman hollered at him he put the brake into emergency. They were a short distance from the crossing, probably 100 feet when the fireman gave him notice. The brake valve is right at the engineer, and he struck the brake valve back into emergency, and about that time they hit the mules.
The fireman testified that he had had experience of 11 years, and, when they approached the crossing about 700 feet away, he saw a team coming on the side of the right-of-way line. They walked on, and he saw there was no driver in the wagon. When he discovered that there was no driver, he hollered to the engineer, and the engineer applied the brakes in full force, but they struck the mules. The fireman testified that the engineer was blowing the whistle for the crossing, that the mules were getting into the inside of the right-of-way line fence before the fireman discovered them. He did not have any sight of them while they were off the right-of-way until they reached the fence; saw the first glimpse of their heads when they were coming into the right-of-way fence. From the right-of-way line to the center of the track is 50 feet.
Ernest Jones testified that there was nothing to obstruct the view of one on a locomotive approaching the crossing in the direction the train was going, from seeing a team when it comes into the right-of-way a quarter of a mile, but he said when the train was a quarter of a mile away the mules were not there. He did not think the train whistled, but would not be positive about it.
Bessie Holder testified that she was between the house and the railroad, and saw the train strike the mules, and did not hear any alarm. She said she did not know how many times she heard the train whistle, but she heard it after it hit the mules.
Nina Jones testified that she heard the whistle north of the trestle, but not south of it.
Ruby Cole, daughter of appellee, testified that the whistle blew before the train got to the trestle, but never before it got to the crossing, and the train did not whistle any more after the first time. She admitted, however, that she signed a statement, and that she herself wrote at the bottom of the statement, "I have read this, and it is true," and in that statement she admitted that she had said she heard the whistle sounded. It was the musical sounding whistle, and she did not know how many times it sounded.
Claudia Cole, another daughter of appellee, saw the train and said it did not whistle. She had also signed a statement and had written at the bottom of it before she signed it, "I have read this, and it is true," and in that statement she said she did not think the whistle was sounded, but could not be positive; if it sounded, she did not hear it.
The only question for our consideration is whether the evidence is legally sufficient to sustain the verdict. There was a verdict for $ 250 in favor of appellee. It is the established doctrine of this State, under § 8562, C. & M. Digest, that where an injury is caused by the operation of a railway train a prima facie case of negligence is made against the company operating such train. When the evidence shows that an injury was caused by the operation of a train, the presumption is that the company operating the train is guilty of negligence, and the burden is upon such company to prove that it was not guilty of negligence. St. L. S.W. Ry. Co. v. Vaughan, 180 Ark. 559, 21 S.W.2d 971.
The Supreme Court of the United States recently said, in construing a statute similar to the Arkansas s...
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