St. Louis Southwestern Railway Co. v. O'Hare

• Decision Date: 25 January 1909
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. O'HARE
• Court: Arkansas Supreme Court

115 S.W. 942

89 Ark. 120

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. O'HARE

Supreme Court of Arkansas

January 25, 1909

Appeal from Monroe Circuit Court; Eugene Lankford, Judge; affirmed.

Judgment reversed and cause remanded.

S. H West and J. C. Hawthorne, for appellant.

1. The prima facie case of negligence made by proof of the killing was clearly overcome by the testimony of the engineer. 78 Ark. 234; 48 Id. 366.

2. The verdict should be set aside for insufficiency of the evidence. 67 Ark. 514; 80 Id. 514; 110 S.W. 595.

H. A Parker, for appellee.

1. The doctrine laid down in Ry. Co. v. Hendricks, 53 Ark 203, governs this case.

2. The bell was not rung as required by law.

3. The testimony is ample to sustain the judgment. 58 Ark. 521-2; 80 Id. 273-4.

OPINION

HART, J.

This is an appeal by the railway company from a judgment recovered against it in the Monroe Circuit Court by J. N. O'Hare for killing his horse. The railway company admitted that the horse was struck and killed by one of its trains, but sought to overcome by testimony the prima facie case of negligence against it. For this purpose W. A. Lee, the engineer, testified substantially as follows:

"Had been a locomotive engineer for about twenty-three years; he was, on the morning of the 20th of February, 1908, engineer on passenger train No. 4, going north; about 3:30 A. M. on arriving at Keevil he whistled for the town and crossing. There were five or six cars on the side track, and the horse jumped out from behind the cars on the side track, and made two jumps on the track, and was hit. The train was going at the rate of about forty-five or fifty miles an hour. Keevil was not a stop for that train. The horse was about ten feet from the track when he first saw it. The side track was about eight feet from the main track. When he saw the horse, he shut off, and did not have time to do anything else, did not apply the brakes because he had no time to do so. He saw the horse perhaps about three seconds before he struck it. The horse was on the right, or engineer's, side. He understood this was the horse belonging to O'Hare. Witness said the accident was about 100 or 150 yards beyond the crossing. He had blown the whistle and rung the bell, but the bell ceased to ring after he passed the crossing. He could see in front of his engine from 800 to 1,000 yards. Headlight was burning. Appliances on the engine were in proper...