St. Louis & San Francisco Railroad v. Thompson

88 S.W. 593, 76 Ark. 37, 1905 Ark. LEXIS 6

• Court: Supreme Court of Arkansas
• Decided: June 17, 1905
• Status: Published

Opinion

Hibtj C. J.

This was ah action for killing a cow by appellant railroad company. The appellant admitted the killing of the cow by the train, and assumed the burden of proof that it was not negligently killed. The testimony of the engineer and fireman sustained the allegation that it was unavoidable, and the case- is brought here on the sole ground that the jury arbitrarily discarded their testimony in finding for the appellee. The engineer’s testimony was weakened on cross-examination, and contradictions with a previous statement shown. The fireman’s testimony, while fully sustaining the allegation that it was an unavoidable accident, did not in all respects accord with the engineer’s version of the matter. The appellee introduced evidence tending to prove the cow could have been seen much further than the testimony of the engineer and fireman showed it could have been. It is true, this testimony was directed to the vision along the track in the day time, but, assuming the engine was equipped with a proper headlight, it was contradictory to the testimony of the engineer and fireman as to the distance of unobstructed vision at night.

The court is of opinion that this is not a case where the refusal to believe the engineer and fireman is arbitrary and without cause, but it presented a conflict in the testimony rendering the submission of the issue of fact proper, and- the finding of the jury final.

The judgment is affirmed.