St. Louis Southwestern Railway Company v. Vaughan

• Decision Date: 02 December 1929
• Docket Number: 23
• Citation: 21 S.W.2d 971,180 Ark. 559
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. VAUGHAN
• Court: Arkansas Supreme Court

21 S.W.2d 971

180 Ark. 559

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. VAUGHAN

No. 23

Supreme Court of Arkansas

December 2, 1929

Appeal from Ouachita Circuit Court, Second Division; W. A. Speer Judge; affirmed.

Judgment affirmed.

Carter Jones & Turney and Gaughan, Sifford, Godwin & Gaughan, for appellant.

Saxon & Warren and H. G. Wade, for appellee.

OPINION

MEHAFFY, J.

This suit was begun by the appellee in the justice of the peace court for damages in the sum of $ 45 for the killing of three hogs by the operation of one of appellant's trains. An appeal was taken to the circuit court, where appellant filed answer, denying the material allegations of plaintiff's complaint. In the circuit court there was a verdict and judgment for appellee for forty dollars. Appellant filed motion for new trial, which was overruled, exceptions saved and appellant prosecutes this appeal to reverse the judgment of the circuit court.

The undisputed evidence shows that the hogs were killed by the operation of appellant's train. It is the established doctrine of this State, under § 8562 of 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. Barringer v. St. L. I. M. & Sou. Ry. Co., 73 Ark. 548, 85 S.W. 94, 87 S.W. 814; L. R. & Ft. S. R. R. Co. v. Payne, 33 Ark. 816; St. L. I. M. & S. R. Co. v. Hendricks, 53 Ark. 201, 13 S.W. 699; K. C. Sou. Ry. Co. v. Drew, 103 Ark. 374, 147 S.W. 50; M. & L. R. Ry. Co. v. Jones, 36 Ark. 87; St. L. I. M. & S. R. Co. v. Tomlinson, 78 Ark. 251, 94 S.W. 613.

When the evidence shows that an injury was caused by the operation of a train, the presumption is that the company operating the train was guilty of negligence, and the burden is upon such company to prove that it was not guilty of negligence. Appellant is correct in its statement that this presumption can be rebutted and overcome by testimony on the part of the defendant. The only question in this case is, did the appellant overcome this presumption by evidence? The Supreme Court of the United States recently said, in construing a statute similar to the Arkansas statute: "The only legal effect of this inference is to cast upon the railroad company the duty of producing some evidence to the contrary. When that is done, the inference is at an end, and the question of negligence is one for jury upon all the evidence." Western & A. R. R. Co. v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884.

Appellant's engineer testified that he was engineer on extra 760 south on the day the hogs were killed, and killed two hogs at the place where appellee's hogs were killed. He said as he was approaching the crossing at Onalaska, he noticed some objects about six or seven feet from the track; that he did not know what they were till they started toward the track. He was about 500 feet from them when he first saw them, and was running about thirty or thirty-five miles an hour. When he got within 250 feet of them, they started toward the track. He then saw they were hogs, and sounded the whistle...