St. Louis Southwestern Railway Co. v. Russell

• Decision Date: 26 June 1897
• Citation: 41 S.W. 807,64 Ark. 236
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. RUSSELL
• Court: Arkansas Supreme Court

41 S.W. 807

64 Ark. 236

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. RUSSELL

Supreme Court of Arkansas

June 26, 1897

Appeal from Lafayette Circuit Court, CHARLES W. SMITH, Judge.

STATEMENT BY THE COURT.

This action was brought against the appellant railway company to recover damages for the killing of a mule, a mare and a cow owned by plaintiffs.

The animals, the property of plaintiffs, were struck and killed at different times by trains of appellant, and the complaint alleged, in separate paragraphs, that the killing of each of them was due to negligence of the employees of appellant in charge of its trains. The allegation of negligence was denied, and the main question upon the trial was whether the employees of the defendant company were guilty of negligence in failing to keep a lookout, and in other respects causing the injury alleged. Upon the trial, among other instructions the court, over the objections of the defendant, gave the following at request of the plaintiffs. After telling the jury that the law required the employees in charge of the train to keep a constant lookout, the court said: "The burden of proof to show such constant lookout upon its track is upon the defendant, and it is not sufficient for the defendant to show that one or even two of its employees running such train were keeping such lookout, if the other employees on said train might, by the keeping of such constant lookout, have seen and prevented such injury. And further, it is not sufficient for the defendant that its engineer may have been doing his duty in keeping such lookout. but it devolves upon the defendant to show that its fireman was keeping such lookout."

There was a verdict in favor of plaintiffs, and the jury assessed the damages as follows: Mare $ 81.75; cow $ 32.42; mule $ 31.10. Total $ 145.27. And judgment was rendered against the defendant company for that sum.

Judgment reversed and new trial ordered.

Sam H West and Jno. T. Sifford, for appellant.

Scott & Jones, for appellees.

RIDDICK J. Absent WOOD, J.

OPINION

RIDDICK, J., (after stating the facts.)

This is an action against the defendant company to recover damages for the killing of certain domestic animals owned by plaintiff. As it was shown that these animals were killed by the trains upon the railway of defendant, the burden was upon it to show that due care was exercised in the management of said trains at the time of the injury. But as to one of the animals this was not shown. The engineer testified that the cow came upon the track upon the fireman's side, and that by reason of a curve in the track he (the engineer) did not see it in time to avoid striking it. The fireman did not testify, and, so far as we know, he may have been guilty of negligence in failing to see the cow, or,...