St. Louis Southwestern Railway Co. v. Cone

• Decision Date: 09 February 1914
• Citation: 163 S.W. 1170,111 Ark. 309
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. CONE
• Court: Arkansas Supreme Court

163 S.W. 1170

111 Ark. 309

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. CONE

Supreme Court of Arkansas

February 9, 1914

Appeal from Calhoun Circuit Court; Geo. W. Hays, Judge; reversed.

Judgment reversed and cause remanded.

S. H West and Gaughan & Sifford, for appellant.

1. Employees are required to use only ordinary care to prevent injury to stock. 89 Ark. 121. At least the question of negligence should have been left to the jury.

2. The statute allowing attorney's fee is unconstitutional. 224 U.S. S.Ct. 354, 56 S.E. 799.

J. S McKnight, for appellee.

1. The Supreme Court will not explore the record for errors; the appellant must set forth in his abstract the errors relied on, or this court will affirm. 103 Ark. 430; 101 Id 207; 93 Id. 93; 95 Id. 123; 83 Id. 352.

2. The court properly directed a verdict. Kirby's Dig., § 6607, amended by Acts 1911, p. 275.

3. Before a party can complain of the giving of an instruction, he must ask a correct instruction on the point at issue. 104 Ark. 322; 102 Id. 588.

4. The law allowing attorney's fee is not unconstitutional. 224 U.S. 354, 56 S.E. 799; 104 Ark. 500.

OPINION

SMITH, J.

Appellee brought this suit to recover the value of a certain hog owned by him, which was killed by one of the appellant's trains, and in addition to the damages for the value of the hog he also sued for a reasonable attorney's fee.

It is not denied that the hog was killed by the train, neither is it questioned that the claim for damages was presented more than thirty days before the institution of the suit, and the judgment rendered was for the amount of the claim presented to appellant, which was also the amount for which the suit had been brought. Appellee asked that an attorney's fee of $ 25 be allowed him; but the jury, under the direction of the court, assessed the fee at the sum of $ 10. This is the minimum amount of fee which could have been assessed under the proof, if any should have been charged at all. At the conclusion of the evidence the court directed the jury to return a verdict in appellee's favor for $ 5, the value of the hog, and for an attorney's fee of $ 10. It is not denied that the hog was worth $ 5, and it is not claimed the attorney's fee is excessive, but appellant insists that instead of directing a verdict against it, the court should have directed a verdict in its favor, or should, at least, have submitted the question of its negligence to the decision of the jury, and appellant also questions the assessment of the attorney's fee upon the ground that the act of the General Assembly of the State of Arkansas, approved February 27, 1907, authorizing its assessment, is unconstitutional.

Appellant offered no proof to rebut the statutory presumption of negligence which arose upon the proof that the hog had been killed by one of its trains, but the evidence which showed that fact also showed the circumstances under which the injury occurred. The train was a short local freight train, and had stopped at the station of Thornton, Arkansas, during which time the hog came upon the track near where appellant's brakeman and others, who were engaged in unloading the freight, were standing. One Roy Sisson, who was employed as a clerk for the railroad at the depot, and who had been assisting in unloading the freight, testified that just before the train started the hog had been standing only a few feet away from the brakeman, and that there was nothing to obstruct his view, nor to prevent the brakeman from seeing the hog. But this witness also testified that some minutes before the train was put in motion he had run the hog out from under the train, and that he never saw it any more until the train was in motion, and that the hog was at about the center of the track, under the car, when the train started to move and that it was struck by the wheels on the side of the car opposite him. The witness testified that the brakeman was standing five or six feet from the car, when he gave the signal for the train to start, and that the brakeman could have seen the hog, if he had looked for it. But he also testified that the brakeman was a man about six feet high and that the car was elevated only three or four feet above the track and extended out some distance over the wheels.

The witness was asked these questions:

Q. Was there any obstructions between the brakeman and the hog at the time the train ran over him?

A. No, sir; there was not.

The hog had been on the side next to the depot and had started across the track and at that time the brakeman was "right up against the train."

The witness further testified that ...