Kansas City Southern Railway Co. v. Wayt

97 S.W. 656, 80 Ark. 382, 1906 Ark. LEXIS 162

• Court: Supreme Court of Arkansas
• Decided: October 29, 1906
• Status: Published

Opinion

Hill, C. J.

This was an action for killing two cows of appellee by appellant’s train. The killing by the train being established, the burden of proof shifted to appellant to exonerate itself from the presumption of negligence. Little Rock & F. S. R. Co. v. Payne, 33 Ark. 816; Railway Company v. Taylor, 57 Ark. 136; St. Louis S. W. Ry. Co. v. Russell, 64 Ark. 236; St. Louis, I. M. & S. Ry. Co. v. Bragg, 66 Ark. 248.

The appellant attempted to discharge this burden. • It proved by the fireman- that he was in the discharge of his duty of putting in coal when the stock were killed, and therefore he was not negligent in not seeing them in time to have prevented the injury. The engineer testified that he failed to discover the stock by reason of a cut and curve preventing him seeing them farther than about fifty feet from the point he struck them. The appellee produced three witnesses familiar with the ground who testified that at the point the stock were struck they could have been seen for a distance of from 75 to 100 yards. This presented a proper issue for a jury. It is not a case calling for the application of St. Louis, I. M. & S. Ry. Co. v. Landers, 67 Ark. 514, and Kansas City Southern Ry. Co. v. Lewis, infra, p. 277, wherein it is held that a jury can not be. permitted to arbitrarily disregard unimpeached, uncontradicted and undisputed evidence which is consistent and reasonable in itself. It was merely a question whether the jury would believe the engineer or the three other witnesses on a vital question.

Judgment affirmed.