Hart, J., (after stating the facts).
It is first earnestly insisted that the evidence is not legally sufficient to warrant the verdict. In this contention we cannot agree with counsel for appellant. The undisputed evidence shows that the injuries sustained by appellee were caused by the engine of one of appellant’s passenger trains striking an automobile in which appellee and other members of his family were riding. The accident happened while they were attempting to cross the railroad track of appellant at a public road crossing. Under our statute this proof was sufficient to make out a prima facie case, of negligence against the appellant. This is conceded by counsel for appellant, but they insist that appellee is barred of recovery on the ground of contributory negligence, and that on this account the court should have directed a verdict in favor of appellant.
It is true that the engineer in charge of the train - testified that he gave the statutory signals of his approach to the crossing, and that he applied the emergency brake and gave the alarm whistle as soon as he saw the automobile approaching the crossing. It is also true that other witnesses testified that the whistle was blown for the crossing, and that the bell was kept ringing until after the accident happened. But it cannot be said that this testimony is reasonable and consistent in itself and is not disputed by any other evidence in the case.
Witnesses for appellee testified that they saw the automobile approaching the crossing, and that the statutory signals of ringing the bell or blowing the whistle were not given. Appellee himself testified that he was listening and looking for the approach of the train, and neither saw nor heard it approaching nor heard the bell ringing nor the whistle blown. He almost stopped his car as he got on top of the little hill where he could see in both directions. He neither saw nor heard the train approaching, and then continued on his way towards the crossing at a low rate of speed. His vision was somewhat obscured by bushes from four to seven feet high which grew along the rightrof-way fence until he. came to the cattle guard. Appellee did not see nor hear the train until he got within ten feet of it. He immediately applied his emergency brake, but could not stop his car. ' He denied that the emergency brake was defective aud out of order, as testified to' by his little son. The evidence in favor of appellee made the question of contributory negligence one for the jury, and the court did not err in refusing to direct a verdict for appellant. Ark. Cent. Ry. Co. v. Williams, 99 Ark. 167; Bush v. Brewer, 136 Ark. 247, and St. L. S. F. R. Co. v. Whitfield, 155 Ark. 560.
Counsel for appellant nest insists that the court erred in refusing to give instruction No. 12, which is as follows:
“You are instructed in this case that you cannot return a verdict against James C. Davis, as agent for the President, unless you also return a verdict against C. F. Edrington; in other words, there can be no verdict against one without a verdict against the other, ’ ’
Counsel for appellant rely upon the case of Patterson v. Risher, 143 Ark. 376. In that case it was held (quoting from syllabus): “Where a master jointly with its servant is sued for an injury to a co-servant, the injury being alleged to be proximately caused by the servant’s negligence, it was not error, at plaintiff’s request, to refuse to instruct that the jury might find for or against either defendant, as, if there was no negligence of the defendant servant, there could be no liability on the part of the master. ”
We do not think that case is controlling here. It is true that in that case, as in the present case, the servant of the company whose negligence is alleged to have caused the injury was made a party defendant to the action. But in that case there was no statutory presumption of negligence against the coal company. The burden of proof was upon the plaintiff to establish the negligence of the coal company, and under the facts stated he could not do that without also showing; negligence against Risher, the superintendent of the mine and the codefendant of the coal company. The burden of proof in each instance rested upon the plaintiff to show negligence. The burden was on him to show negligence on the part of the coal company as well as upon the part of Risher.
Here the rule is different. The burden of proof was upon the appellee to show negligence on the part of Edrington, but under the long established doctrine in this State, where an injury is caused by operation of a railway train, a prima facie case of negligence is made against the company operating the train, and the burden of proof is upon the railroad company to rebut this presumption or inference of negligence. Barringer v. St. L. I. M. & S. R. Co., 73 Ark. 548; and St. L. I. M. & S. R. Co. v. Armbrust, 121 Ark. 351.
Where the burden of proof rests upon a party to establish an ultimate fact, it cannot be said to be established unless the evidence of its existence.or non-existence is proved by a preponderance of the evidence, and this is true whether the burden rests on the party to establish an affirmative or negative proposition. The action against Edrington would be defeated if the jury found from all the evidence that it was just as probable that the injury occurred without negligence on his part as if he was guilty of negligence. This is so because it devolves upon appellees to establish Edrington’s negligence in order to recover against him. Not so in his action against the railroad company. As we have already seen, the undisputed evidence shows that appellee was injured by one of appellant’s passenger trains striking an automobile in which he was riding at a public crossing.
Under our statute the burden of proof then devolved upon the railroad company to show that the accident happened without any fault or negligence on its part. So, if the jury had been of the opinion that the evidence of negligence or not on the part of Edrington was of equal probative force, still it would have been its duty to have found against the railroad company. In short, such a finding- of the jury would lead to a verdict in favor of Edrington and against the railroad company.
The testimony of Edrington in regard to .giving the statutory signals was directly contradicted by other witnesses besides appellee, and his testimony with regard to keeping a lookout is inferentially contradicted by that of appellee. Hence it cannot be said that his testimony is reasonable and consistent in itself. The jury were the judges of the credibility of the witnesses, and might have found that the evidence was in equal poise as to the negligence of Edrington. Hence it might have returned a verdict in his favor because, as above stated, the burden was upon appellee to establish his negligence, and it might have returned a verdict against appellant because the burden was upon it to show that it was not negligent. Therefore, the court did not err in refusing to give this instruction.
It is next insisted that the court erred in refusing to give instruction No.
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Hart, J., (after stating the facts).
It is first earnestly insisted that the evidence is not legally sufficient to warrant the verdict. In this contention we cannot agree with counsel for appellant. The undisputed evidence shows that the injuries sustained by appellee were caused by the engine of one of appellant’s passenger trains striking an automobile in which appellee and other members of his family were riding. The accident happened while they were attempting to cross the railroad track of appellant at a public road crossing. Under our statute this proof was sufficient to make out a prima facie case, of negligence against the appellant. This is conceded by counsel for appellant, but they insist that appellee is barred of recovery on the ground of contributory negligence, and that on this account the court should have directed a verdict in favor of appellant.
It is true that the engineer in charge of the train - testified that he gave the statutory signals of his approach to the crossing, and that he applied the emergency brake and gave the alarm whistle as soon as he saw the automobile approaching the crossing. It is also true that other witnesses testified that the whistle was blown for the crossing, and that the bell was kept ringing until after the accident happened. But it cannot be said that this testimony is reasonable and consistent in itself and is not disputed by any other evidence in the case.
Witnesses for appellee testified that they saw the automobile approaching the crossing, and that the statutory signals of ringing the bell or blowing the whistle were not given. Appellee himself testified that he was listening and looking for the approach of the train, and neither saw nor heard it approaching nor heard the bell ringing nor the whistle blown. He almost stopped his car as he got on top of the little hill where he could see in both directions. He neither saw nor heard the train approaching, and then continued on his way towards the crossing at a low rate of speed. His vision was somewhat obscured by bushes from four to seven feet high which grew along the rightrof-way fence until he. came to the cattle guard. Appellee did not see nor hear the train until he got within ten feet of it. He immediately applied his emergency brake, but could not stop his car. ' He denied that the emergency brake was defective aud out of order, as testified to' by his little son. The evidence in favor of appellee made the question of contributory negligence one for the jury, and the court did not err in refusing to direct a verdict for appellant. Ark. Cent. Ry. Co. v. Williams, 99 Ark. 167; Bush v. Brewer, 136 Ark. 247, and St. L. S. F. R. Co. v. Whitfield, 155 Ark. 560.
Counsel for appellant nest insists that the court erred in refusing to give instruction No. 12, which is as follows:
“You are instructed in this case that you cannot return a verdict against James C. Davis, as agent for the President, unless you also return a verdict against C. F. Edrington; in other words, there can be no verdict against one without a verdict against the other, ’ ’
Counsel for appellant rely upon the case of Patterson v. Risher, 143 Ark. 376. In that case it was held (quoting from syllabus): “Where a master jointly with its servant is sued for an injury to a co-servant, the injury being alleged to be proximately caused by the servant’s negligence, it was not error, at plaintiff’s request, to refuse to instruct that the jury might find for or against either defendant, as, if there was no negligence of the defendant servant, there could be no liability on the part of the master. ”
We do not think that case is controlling here. It is true that in that case, as in the present case, the servant of the company whose negligence is alleged to have caused the injury was made a party defendant to the action. But in that case there was no statutory presumption of negligence against the coal company. The burden of proof was upon the plaintiff to establish the negligence of the coal company, and under the facts stated he could not do that without also showing; negligence against Risher, the superintendent of the mine and the codefendant of the coal company. The burden of proof in each instance rested upon the plaintiff to show negligence. The burden was on him to show negligence on the part of the coal company as well as upon the part of Risher.
Here the rule is different. The burden of proof was upon the appellee to show negligence on the part of Edrington, but under the long established doctrine in this State, where an injury is caused by operation of a railway train, a prima facie case of negligence is made against the company operating the train, and the burden of proof is upon the railroad company to rebut this presumption or inference of negligence. Barringer v. St. L. I. M. & S. R. Co., 73 Ark. 548; and St. L. I. M. & S. R. Co. v. Armbrust, 121 Ark. 351.
Where the burden of proof rests upon a party to establish an ultimate fact, it cannot be said to be established unless the evidence of its existence.or non-existence is proved by a preponderance of the evidence, and this is true whether the burden rests on the party to establish an affirmative or negative proposition. The action against Edrington would be defeated if the jury found from all the evidence that it was just as probable that the injury occurred without negligence on his part as if he was guilty of negligence. This is so because it devolves upon appellees to establish Edrington’s negligence in order to recover against him. Not so in his action against the railroad company. As we have already seen, the undisputed evidence shows that appellee was injured by one of appellant’s passenger trains striking an automobile in which he was riding at a public crossing.
Under our statute the burden of proof then devolved upon the railroad company to show that the accident happened without any fault or negligence on its part. So, if the jury had been of the opinion that the evidence of negligence or not on the part of Edrington was of equal probative force, still it would have been its duty to have found against the railroad company. In short, such a finding- of the jury would lead to a verdict in favor of Edrington and against the railroad company.
The testimony of Edrington in regard to .giving the statutory signals was directly contradicted by other witnesses besides appellee, and his testimony with regard to keeping a lookout is inferentially contradicted by that of appellee. Hence it cannot be said that his testimony is reasonable and consistent in itself. The jury were the judges of the credibility of the witnesses, and might have found that the evidence was in equal poise as to the negligence of Edrington. Hence it might have returned a verdict in his favor because, as above stated, the burden was upon appellee to establish his negligence, and it might have returned a verdict against appellant because the burden was upon it to show that it was not negligent. Therefore, the court did not err in refusing to give this instruction.
It is next insisted that the court erred in refusing to give instruction No. 9, which is as follows: “You are instructed that if the driver of the car, by tlie exercise of ordinary care with reference to looking and listening, as you find in these instructions, could have discovered the train in time to have stopped, and he did not stop the car because there whs a defective brake on said car, then the defective brake on said car was the proximate cause of the injury, and your verdict must be for the defendant.”
This instruction was erroneous because it, in effect, told the jury that if the emergency brake on the automobile was defective, this was the proximate cause of the injury. The proximate cause of the injury was the train striking the automobile and thereby demolishing it and severely injuring the appellee and killing his daughter. The question of the brake being defective only went to the contributory negligence of appellee. If the emergency brake of appellee’s car was defective, as testified to by his son, such fact would tend to show that appellee was guilty of contributory negligence, in the use of it; but this ’would not make it the proximate cause of the injury. Therefore the court did not err in refusing to give this instruction.
We do not deem it necessary to discuss the instructions given by the court. It is sufficient to say that they fully and fairly submitted the respective theories of the parties to the jury.
We do not think that the verdict is excessive. A mere reading of the evidence on the part of the appellee will show that the jury was warranted in finding for appellee in the sum of $6,000. Besides the death of his daughter and the. loss of his automobile, he was severely injured in his spine and suffered great pain therefrom.
It follows that the judgment must be affirmed.
Smith, J., dissents.