Prescott & Northwestern Railway Co. v. Brown

86 S.W. 809, 74 Ark. 606, 1905 Ark. LEXIS 508

Opinion

Wood, J.,

(after stating the facts.) 1. The question of negligence was submitted to the jury upon proper instructions, and there was evidence to support the verdict.

2. Appellees under the pleadings and proof had the right to open and close the argument. The burden of proof was upon them. Section 6137 of Kirby’s Digest provides that “allegations of value, or of amount of damage, sháll not be considered as true by the failure to controvert them.” It is held in Railway Company v. Taylor, 57 Ark. 136, that (quoting syllabus) “the right to open and close the argument abides with the plaintiff so long as he has anything to prove in order to recover a verdict for more than nominal damages.” The failure to controvert the value of the animal did not relieve appellee of the burden of proving it, in order to show the extent of his injury or damage. Derrick v. Cole, 60 Ark. 394; Springfield & Memphis Ry. Co. v. Rhea, 44 Ark. 258.

3. It is urged that the court ignored the doctrine of contributory negligence in refusing to grant appellant’s request for instruction No. 3

*, and in failing to mention it in the instructions given. There is nothing in the evidence to warrant an instruction upon the subject. The fact that one of the appellees on one occasion some time prior to the killing (just when it is not shown) was seen riding the mule that was killed along the track of the railroad for some distance at the place where the mule was killed would not even tend to establish contributory negligence. Yet this was all the evidence upon which appellant predicated its request for instruction No. 3. We are unable to see how riding the mule one time along appellant’s railroad fifty yards at the place where it was afterwards killed would tend to establish contributory negligence in appellees at the time of the killing. The idea is far-fetched.

4. Appellant claims that it was error to charge -the jury that the burden was upon it to show that it kept a lookout for stock upon the track, and contends that it was not the duty of the appellant to keep a lookout for stock, under the decision of this court in Memphis & Little Rock Ry. Co. v. Kerr, 52 Ark. 162. That case was decided at the May term, 1889. In April, 1901, the Legislature passed the “lookout” statute. Kirby’s Dig. § 6607. Since then it has been the duty of railroads to keep a lookout for property on their tracks, and in case of injury to such property the burden is upon the railroad to show that the lookout was kept in order to absolve them from the charge of negligence in failing to keep such lookout. Railway Company v. Taylor, 57 Ark. 136; St. Louis Southwestern Ry. Co. v. Russell, 62 Ark. 182; St. Louis Southwestern Ry. Co. v. Russell,, 64 Ark. 236; St. Louis, I. M. & S. Ry. Co. v. Pritchett, 66 Ark. 46.

There was no error. Affirm.

Appellant's request for instruction No. 3, which was refused, was as follows:

“3. The jury are instructed that no one has the right to ride on or along the roadbed of a railway, and that every one so riding is a trespasser: and if in this case the jury believe from the evidence that the plaintiff, R. Fultz, by frequently riding the mule in question on and along defendant's roadbed, so accustomed said mule to travel ou said roadbed that when it got loose it naturally took the roadbed, instead of the other route, then the plaintiff will be guilty of contributory negligence, and you will find for the de« f endant."