{ "id": 8720488, "name": "St. Louis-San Francisco Railway Company v. Harmon", "name_abbreviation": "St. Louis-San Francisco Railway Co. v. Harmon", "decision_date": "1929-03-25", "docket_number": "", "first_page": "248", "last_page": "253", "citations": [ { "type": "official", "cite": "179 Ark. 248" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "292 S. W. 120", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "172 Ark. 1053", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1407906 ], "opinion_index": 0, "case_paths": [ "/ark/172/1053-01" ] }, { "cite": "13 S. W. 422", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "53 Ark. 96", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911674 ], "opinion_index": 0, "case_paths": [ "/ark/53/0096-01" ] }, { "cite": "51 S. W. 319", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "66 Ark. 439", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1909784 ], "opinion_index": 0, "case_paths": [ "/ark/66/0439-01" ] }, { "cite": "55 S. W. 940", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "67 Ark. 514", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1152569 ], "opinion_index": 0, "case_paths": [ "/ark/67/0514-01" ] }, { "cite": "95 S. W. 460", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "78 Ark. 234", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1497304 ], "opinion_index": 0, "case_paths": [ "/ark/78/0234-01" ] }, { "cite": "96 S. W. 1062", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "80 Ark. 284", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1491173 ], "opinion_index": 0, "case_paths": [ "/ark/80/0284-01" ] }, { "cite": "97 S. W. 56", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "80 Ark. 396", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1491222 ], "opinion_index": 0, "case_paths": [ "/ark/80/0396-01" ] }, { "cite": "107 S. W. 171", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "85 Ark. 121", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1523267 ], "opinion_index": 0, "case_paths": [ "/ark/85/0121-01" ] }, { "cite": "115 S. W. 942", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "89 Ark. 120", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515285 ], "opinion_index": 0, "case_paths": [ "/ark/89/0120-01" ] }, { "cite": "124 S. W. 776", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "93 Ark. 224", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546824 ], "opinion_index": 0, "case_paths": [ "/ark/93/0224-01" ] }, { "cite": "131 S. W. 44", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "96 Ark. 37", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1541963 ], "opinion_index": 0, "case_paths": [ "/ark/96/0037-01" ] }, { "cite": "142 S. W. 1122", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "101 Ark. 532", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1311101 ], "opinion_index": 0, "case_paths": [ "/ark/101/0532-01" ] }, { "cite": "175 S. W. 517", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "117 Ark. 483", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1564964 ], "opinion_index": 0, "case_paths": [ "/ark/117/0483-01" ] }, { "cite": "175 S. W. 418", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "117 Ark. 638", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1564922 ], "opinion_index": 0, "case_paths": [ "/ark/117/0638-01" ] }, { "cite": "177 S. W. 417", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "119 Ark. 75", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717816 ], "opinion_index": 0, "case_paths": [ "/ark/119/0075-01" ] }, { "cite": "213 S. W. 369", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "139 Ark. 255", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1596409 ], "opinion_index": 0, "case_paths": [ "/ark/139/0255-01" ] }, { "cite": "217 S. W. 801", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "141 Ark. 625", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1592938 ], "opinion_index": 0, "case_paths": [ "/ark/141/0625-01" ] }, { "cite": "240 S. W. 1077", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "153 Ark. 375", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1362275 ], "opinion_index": 0, "case_paths": [ "/ark/153/0375-01" ] }, { "cite": "14 S. W. (2d) 230", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "178 Ark. 732", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1396904 ], "opinion_index": 1, "case_paths": [ "/ark/178/0732-01" ] } ], "analysis": { "cardinality": 452, "char_count": 9259, "ocr_confidence": 0.489, "pagerank": { "raw": 4.036214876077772e-07, "percentile": 0.9072202665097463 }, "sha256": "1bdb84c74afcdb8066693cb5c0f8ec3b72a8b2b08dab32e3d20b4cbbb7c95ddc", "simhash": "1:d8e5465182651d36", "word_count": 1753 }, "last_updated": "2023-07-14T22:44:09.982065+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Humphreys agrees with me in this conclusion." ], "parties": [ "St. Louis-San Francisco Railway Company v. Harmon." ], "opinions": [ { "text": "Smith, J.\nThis appeal is from a judgment in ap-pellee\u2019s favor for the value of a dog which was killed by one of appellant\u2019s trains. No witness who testified on behalf of appellee saw the dog struck, but the testimony on appellee\u2019s behalf was sufficient to. support the finding that the dog had been run over by a train, and appellee relied upon the statutory presumption of negligence arising from the fact that a train had struck the dog. The question for decision is therefore whether the undisputed testimony overcomes this presumption. We think it does.\nThe only witness who 'knew how the train came to strike the dog was B. EL Nelson, who testified as follows: Witness was the rear brakeman on the local freight train which struck the dog. About 8 p. m. on January 17 the train was standing on the main line track, when witness, who was on the rear end of the ealboose, gave a signal for the train to back up. Witness testified that he \u201ctook the engine and caboose and started backing up, and saw the dog was standing between the tracks, and, as the caboose was passing the dog, it ran under the rear end, and was run over.\u201d The dog was about four or five feet from the caboose when it started across the track under the caboose. Witness did not see the dog as it started across the track, but \u2018 \u2018 saw the dog standing there as we started to pass, but was not looking at the dog when he started under. When I heard the dog yelp I looked, and saw it kick back out from under the train.\u201d There was .nothing he could have done', or that could have been done by the train crew or engine crew, that would have prevented the injury to the dog, as the caboose was being backed up in the yard, and the dog ran under the caboose from the side, and was run over. No witness disputed or contradicted this testimony or testified to any fact which even tended to contradict the brakeman\u2019s testimony or to afford any just ground for the inference that the brakeman had not told the truth as to the manner in which the dog was injured.\nWe have said many times that the jury is the judge of the weight of the testimony and the credibility of the witnesses; but we have also said that the jury has no right to arbitrarily disregard the testimony of any witness, and we think it was arbitrary for the jury to disregard Nelson\u2019s testimony. It is consistent in its entirety, and no fact or circumstance was offered in evidence which contradicts it or conflicts with it. It was therefore arbitrary for the jury to cast this testimony aside. Davis v. Porter, 153 Ark. 375, 240 S. W. 1077; Kansas City Sou. Ry. Co. v. Griffin, 141 Ark. 625, 217 S. W. 801; Kansas City Sou. Ry. Co. v. Whitley, 139 Ark. 255, 213 S. W. 369; Steptoe v. St. Louis, I. M. & Southern Ry. Co., 119 Ark. 75, 177 S. W. 417; St. Louis, I. M. & Sou. Ry. Co. v. Belcher, 117 Ark. 638, 175 S. W. 418; St. Louis, I. M. & Sou. Ry. Co. v. Spillers, 117 Ark. 483, 175 S. W. 517; St. Louis, I. M. & Sou. Ry. Co. v. Humbert, 101 Ark. 532, 142 S. W. 1122; St. Louis, I. M. & Sou. Ry. Co. v. Ramsey, 96 Ark. 37, 131 S. W. 44, Ann. Cas. 1912B, 383; Paragould & M. Ry. Co. v. Smith, 93 Ark. 224, 124 S. W. 776; St. Louis S. W. Ry. Co. v. O\u2019Hare, 89 Ark. 120, 115 S. W. 942; St. Louis & S. F. Ry. Co. v. Minor, 85 Ark. 121, 107 S. W. 171; Kansas City Sou. Ry. Co. v. Lewis, 80 Ark. 396, 97 S. W. 56; Kansas City Sou. Ry. Co. v. Cash, 80 Ark. 284, 96 S. W. 1062; Lane v. Kansas City So. Ry. Co., 78 Ark. 234, 95 S. W. 460; St. Louis, I. M. & So. Ry. Co. v. Landers, 67 Ark. 514, 55 S. W. 940; Kansas City, F. S. & M. Ry. Co. v. King, 66 Ark. 439, 51 S. W. 319; Railway v. Shoecraft, 53 Ark. 96, 13 S. W. 422.\nAccording\u2019 to Nelson\u2019s testimony, lie saw the dog in a place of safety between the tracks and four or five feet from the track on which the caboose was standing. Nelson saw the dog standing there as the engine and caboose started backing np. He was keeping a lookout, and Was keeping it efficiently; indeed, he was the only person on the train who conld have kept it. Witness did not see the dog start across the track, but he heard it yelp, and, as he looked, he saw it \u201ckick back out from under the train.\u201d\nThe case is governed by that of Nelson v. Missouri Pacific R. R. Co., 172 Ark. 1053, 292 S. W. 120. In that c\u00e1se a dog ran, according to the finding of the .jury, under a train after the engine had passed it. In that case the plaintiff had requested the court to charge the jury that, if the dog was killed by the train, it was immaterial as to what part of the train struck the dog. In affirming the action of the trial court in refusing this instruction we said: \u201cUnder these circumstances (that of a dog running under a moving train) it would not do to say that it was immaterial that cars following the engine killed it, for no lookout, however constant or effective, could have prevented the dog from running under the train. To hold otherwise would render a railroad company liable for any animal killed, regardless of the circumstances under which it was killed, and the law has never been so declared. \u2019 \u2019\nThe judgment must therefore he reversed, and the cause will he remanded for a new trial.", "type": "majority", "author": "Smith, J." }, { "text": "Mehaffy, J.\n('dissenting). As stated in the opinion by the majority, the question for decision is whether the undisputed testimony overcomes the presumption of negligence arising from the fact that the train had struck the d\u00f3g.\nIt is true, as stated in the opinion, that Nelson testified that he took the engine and caboose and started backing up and saw the dog was standing between the tracks; and, as the caboose was passing the dog, it ran under the rear end and was run over, but it is perfectly plain from his own testimony that he did not see the dog run under, and that he could not, according to his own testimony, know whether the dog ran in front of the caboose and was killed or ran under the side. He says: \u201cI saw the dog standing there as we started to pass, but was not looking at the dog when he started under.\u201d The dog was standing between the tracks four or five feet from the track on which this train was operated; was standing there when the train started. This witness also says that he did not stop to pay any particular attention to the dog. It appears from this witness\u2019 testimony that when he started the train up he saw the dog within approximately four feet of the track; that he did not look at it any more and paid no further attention to it. There is no testimony that he gave any alarm or did anything to prevent killing the dog or to frighten it away. If the brakeman told the truth, after seeing the dog, he paid no further attention to it; did not sound any alarm; did not know whether the dog had started across the track or not, and did not testify to having done anything or having taken any precaution at all to avoid injuring the dog or to see whether it was going on to the track.\nI agree with the statement in the opinion of the majority that the jury has no right to arbitrarily disregard the testimony of any witness, hut I do not agree that it was arbitrary for the jury to disregard Nelson\u2019s testimony. There is nothing in the record to show that they disregarded it, either arbitrarily or otherwise. If everything Nelson told was true, it is not, in my judgment, sufficient to overcome the statutory presumption of negligence.\nIt is stated in the majority opinion that no fact or circumstance was offered in -evidence which contradicts or conflicts with Nelson\u2019s testimony. Nelson\u2019s testimony does not undertake to show that any care was exercised at all, and while it is true that we have many times held that the jury cannot arbitrarily cast aside the testimony of any witness, it is also a well-established rule that the credibility of a witness and the weight to be given to his testimony is a question for the jury and not for the court.\nIn reversing this case, I think the court has passed not only on the credibility of the witness, but the weight to be given to his testimony. The majority opinion said that Nelson was keeping a lookout and keeping it efficiently. On the contrary, his own testimony shows that, if he saw the dog there, he paid no further attention to it, and if he looked out at all, there is no evidence tending to prove that he did. He doesn\u2019t say so, and no other witness testifies with reference to this matter. If he had been keeping a lookout, he would have been bound to see the dog when it started across the track. It may be that the brakeman could not have avoided killing the dog, but the testimony does not show this, and I think in this case that, the credibility of the witnesses and the weight to be given to his testimony being for the jury, the jury had a right to determino whether the presumption of negligence was overcome by the testimony of the brakeman, who himself said that he paid no attention to the dog after he saw it between the tracks. Mo. Pac. Ry. Co. v. Edwards, 178 Ark. 732, 14 S. W. (2d) 230.\nI therefore think that the case should be affirmed.\nJustice Humphreys agrees with me in this conclusion.", "type": "dissent", "author": "Mehaffy, J." } ], "attorneys": [ "E. T. Miller, E. L. WestbrooJce, Jr., and E. L. West-broohe, for appellant.", "Oscar E. Ellis, for appellee." ], "corrections": "", "head_matter": "St. Louis-San Francisco Railway Company v. Harmon.\nOpinion delivered March 25, 1929.\nE. T. Miller, E. L. WestbrooJce, Jr., and E. L. West-broohe, for appellant.\nOscar E. Ellis, for appellee." }, "file_name": "0248-01", "first_page_order": 266, "last_page_order": 271 }