Paragould Southeastern Railway Co. v. Crunk

98 S.W. 682, 81 Ark. 35, 1906 Ark. LEXIS 431

Opinion

Hiee, C. J.

The principal question in this case is the correctness of this instruction:

You are instructed that if you find from the evidence, that plaintiff’s horse was run into a trestle or culvert by a train on defendant’s road and injured, and if you further find, from all the facts and circumstances in proof in the case, that the trainmen in charge of the train could have foreseen, as a natural or probable consequence of not stopping the train, that the horse would attempt to go on the trestle or culvert and be injured, then it was the duty of the trainmen to stop the train' in order to avert the injury to the horse; and if they failed to do so, they would be guilty of negligence, and plaintiff would be entitled to recover.”

This court said in Railway Company v. Ferguson, 57 Ark. 18: “But appellant did owe the appellee the duty, when it discovered his colt upon its track, to use ordinary or reasonable care to avoid injury to it by running its train against it, or by frightening and driving it by unnecessary alarms against the wire fence.” (Citing authorities.) That principle controls here. Generally speaking, ordinary or reasonable care does not require a train to be stopped in order to avoid injury to stock on the track; but there may be facts which make the stoppage only ordinary care to avoid the injury which would otherwise occur, and there were sufficient facts in this case to send that question to the jury.

The other matters presented hava been considered, but no error is found.

Affirmed.