St. Louis, Iron Mountain & Southern Railway Co. v. Ewing

107 S.W. 191, 85 Ark. 53, 1908 Ark. LEXIS 489

• Court: Supreme Court of Arkansas
• Decided: January 6, 1908
• Status: Published

Opinion

Hart, J.,

(after stating the facts.) Counsel for appellant claim that the first instruction is erroneous because it is a charge with regard to matters of fact. It was incumbent upon appellee to show that the death of the animal was occasioned by the train of appellant, in order to raise the statutory presumption of negligence. Ry. Co. v. Parks, 60 Ark. 189. There was no eye witness to the killing, and the circumstances detailed in the first instruction were proved to show that the horse was killed by appellant’s train. These facts were undisputed, and were all the testimony on that point, and therefore the instruction was equivalent to saying to the jury: “If you believe from the evidence that the animal was killed by a passing train, etc.”

Appellant objects to instruction No. 2, because there is no evidence to show that the killing was not posted as required by law. Appellee testified that his place of business was near the depot house, and that he at different times examined all sides of the building for the purpose of finding the notice of the description of the animal killed, and that he failed to find it; that he -made such examination 'at frequent intervals for more than one month next after the animal was'killed.

The third instruction was loosely drawn, but it is not open to the objection that it meant that each and every member of the train crew should keep a constant lookout. St. Louis, I. M. & S. Ry. Co. v. Norton, 71 Ark. 317.

Affirmed.