{ "id": 8726426, "name": "L. R. & F. S. R. R. Co. v. Payne", "name_abbreviation": "L. R. & F. S. R. R. v. Payne", "decision_date": "1878-11", "docket_number": "", "first_page": "816", "last_page": "824", "citations": [ { "type": "official", "cite": "33 Ark. 816" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "53 Ala., 595", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3345440 ], "opinion_index": 0, "case_paths": [ "/ala/53/0595-01" ] }, { "cite": "48 Ga., 464", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 863044 ], "opinion_index": 0, "case_paths": [ "/ga/48/0346-01" ] }, { "cite": "32 Ark., 131", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877189 ], "opinion_index": 0, "case_paths": [ "/ark/32/0131-01" ] }, { "cite": "31 Ark., 684", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879334 ], "opinion_index": 0, "case_paths": [ "/ark/31/0684-01" ] } ], "analysis": { "cardinality": 756, "char_count": 15879, "ocr_confidence": 0.436, "pagerank": { "raw": 1.283213690475913e-06, "percentile": 0.9891188636866474 }, "sha256": "dbdfb6c4e3f046f53a6de9f7a0b3d20ba963009452814f9761f8224a73c22227", "simhash": "1:ca9a0eb928f417ba", "word_count": 2724 }, "last_updated": "2023-07-14T16:55:04.416113+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "L. R. & F. S. R. R. Co. v. Payne." ], "opinions": [ { "text": "EaiiiN, J. :\nPayne sued the railroad company before a justice of the peace, for damages resulting from breaking the leg of a horse and injuring him permanently \u2014 claiming $150. He recovered $100, and the road appealed to the Circuit Court, where, upon trial, the jury rendered a verdict against defendant for $200,, upon which judgment was entered. There was a motion for a new trial overruled, bill of exceptions and appeal.\nThere was a direct conflict of evidence as to the cause of the injury. Some witnesses testified that the train had run upon the horse and pushed him into a culvert; others swore roundly and directly that the train did not come within four feet of the-horse, but stopped before it reached the culvert, and that the-horse, which had been running along the track before the engine, jumped into the culvert and was injured. Amongst the witnesses for plaintiff who testified upon this point, was-his wife. Her testimony was admitted against the objections of appellant, which makes this one of the grounds of its motion for a new trial.\nThis was erroneous. Husband and wife are prohibited, from motives of public policy, from testifying for or against each other. Collins v. Mack, 31 Ark., 684. The evidence of the wife was material and may have influenced the jury in arriving at their verdict.\nIt is urged upon the court to rule, in this case, upon other points made by the record, involving the construction and validity of the act of February 3, 1875, entitled, \u201cAn act-requiring railroad companies to pay for damages to persons- and property, and for other purposes.\u201d\nThe court, upon motion of plaintiff, and against the objections of defendant, gave, amongst others, the following-instruction : \u201cIf the jury believe, from the evidence, that the defendant\u2019s engine, or cars, ran over or against the horse,, mentioned in the complaint, and that the animal died from wounds or injuries thus received, they should find for the plaintiff and assess his damages at a sum equal to the actual value of the horse on the day he was injured, together with six per cent interest thereon from that until the present day. But, if the jury find for the plaintiff, and also find that the \u2022engineer, or conductor on the train, doing such injury, knew that the same was done, and failed within one week thereafter to cause to be posted, by the station master, or overseer at the nearest station-house, and at the nearest station-house and \u25a0depot house, a correct description of said horse, including his. \u2022color, marks, brands, and such other natural description as might have assisted in identifying said horse ; and also a notice \u2022of the time and place where said horse was injured, and to keep such notice and description so posted for twenty days thereafter : then they should assess the damages of the plaintiff at double the actual value of said horse.\u201d\nThe following, in effect, amongst others asked on the part \u25a0of the defendant, were refused :\n3. That the jury must not only find that the injury was inflicted by the train, but that it was done through the want of due care and skill or diligence on the part of defendant\u2019s \u25a0agents, or employees, or some of them in charge of the train.\n4. That the company was not liable for injury to animals running at large in the range, and straying upon its track, where the company and its agents use due caution and reasonable care and diligence to avoid said injury.\n5. That the onus jprobandi was on the plaintiff, notwithstanding the eighth section of the statute.\n6. That the company could not be made liable under the Constitution and laws of the State for double damages, as provided by the second section of the statute.\nThere were other instructions, principally regarding the weight of evidence and the duties of the jury with reference to the conflict therein \u2014 which, on the whole, were well given, and need not be noticed.\nThe statute referred to provides, by section 1, that \u201call railroads, which are now, or may be hereafter built and operated, in whole or in part in this State, shall be responsible \u2022for all damages to persons and property done or caused by the Tunning of trains in this State.\u201d\nThe second section makes it the duty of the conductor or \u2022engineer, when stock of any sort are killed, to make the advertisement, indicated in the instruction for plaintiff, and provides that \u201con failure to so advertise any stock so killed or wounded, that the owner shall recover double damages for all stock so \u2022killed and not advertised.\u201d\nThe fifth section provides a mode of arbitration between the \u25a0company and the injured party.\nThe eighth section provides that \u201cthe killing of stock on any \u2022railroad track shall be prima facie evidence*\u2018that it was done by the trains, and the onus to prove the reverse will be on the railroad company.\u201d\nThere are other sections not bearing upon the points at issue.\nThe court below construed the first section of the act as imposing upon the road an absolute liability to pay for stock killed by the trains, and withdrew from the consideration of the jury all considerations of negligence on the one hand or \u25a0due care on the other. This would be to make the railroad \u25a0companies insurers of the safety of all the live animals in the State against injury from their roads, and would either take away from them defenses, which all other corporations and persons might by law set up, or make the killing of stock conclusive evidence of want of due care, and negligence. In the absence of express language we cannot suppose that the Legislature intended either. Railroads are useful to all -the community, in the development of the resources and increase of the wealth of the State. The exercise of their franchises, and the pursuit of their business, is lawful, and to hold them liable for unavoidable accidents which could not have been prevented by due care, is contrary to reason. It is not within the province of the Legislature to divest rights by prescribing to the courts what should be conclusive evidence. This matter was fully considered by this court in the case of, Cairo & Fulton Railroad Company v. Parks, 32 Ark., 131, which arose under a statute, which endeavored to make a county clerk\u2019s deed of lands, sold for taxes, conclusive of its recitals against the true owner. Justice Walker, in delivering the opinion, remarked \u00ed \u201cThe Legislature may declare what shall be received as evidence, but it cannot make that conclusively true which may be shown to be false; at all events, if such facts are necessary to show that the substantial rights of property are to be affected, and he is made to lose his property.\u201d Railroad companies, have the right to run their trains, and the consequent right of being protected in doing so, unless damage to others should result from some negligence, want of due care, or culpable neglect of reasonable precautions, imposed by the legislative power. It affects their substantial rights of property to be able to show the facts, and they cannot be constitutionally deprived of the power.\nThere are cases where this indisputable liability has been imposed upon railroads and sustained by the courts. It has generally been in those States whose circumstances and policy have required railroads to be fenced by the company, and where there have been express laws imposing this duty. These cases, obviously, rest upon the neglect of the company in fencing so as to keep animals off the track.\nIn Massachusetts, by statute, railroad companies are made absolutely liable for injuries by fire communicated from their engines ; but, in compensation, are given an insurable interest in any buildings along the route. The courts have sustained this law, but the nature of it is peculiar and exceptional, and the language too clear to admit of doubt.\nIn Georgia, by act of December 30, 1847, the Legislature \u00abdeclared, in language substantially like ours, \u201cthat the several railroad companies of this State shall be held liable in law for any damage done to live stock or other property (to the owner \u00abor owners thereof) by the running of the cars or locomotives \u2022of such companies or their roads respectively.\u201d This is very broad and very positive, yet the courts of that State have never .given it any other effect than to impose a prima facie liability \u2022and to shift the burden of proving due care on the company. Macon & Augusta Railroad Company v. Vaughn, 48 Ga., 464. The court, in that case, said: \u201cA railroad company is not liable for an unavoidable accident, even under our statute, in relation to stock. If, with every reasonable precaution, proper lookout and proper speed, and proper attention, an unavoidable damage ensues, the company which has, by law, a right under such precautions, to run its trains, is not responsible.\u201d * * * * \u201cThe presumption is against the road, and the proof, under our law, must be made that there was no negligence, nor want of ordinary care.\u201d\nTo the same effect, upon a similar statute, have been the sailings in Alabama. Mobile & Ohio Railroad Company v. Williams, 53 Ala., 595; same case, 13 Am. Railroad Rep., p. 153.\nThis is a rational construction of legislative intention, and applicable as regards injuries to stock to our own statute, which, in many respects, seems modeled upon that of Georgia. The court erred in excluding from the jury all considerations \u2022of negligence. There were no formal pleadings in the case, but the jury should have been advised to consider all the circumstances developed by the evidence, as to whether the killing resulted from unavoidable accident or might have been prevented by the exercise of reasonable care on the part of \u25a0defendant\u2019s agents. They should have been instructed, also, that the burden of proof was on the defendant, to show that there had been no negligence, nor want of due care; but if it did show that, to find for defendant.\nIt is apparent that the verdict of $200 in this case is based upon an estimate of $100 as the value of the horse, and the-instruction for double damages, for want of-the subsequent notices prescribed by section 2 of the act.\nThe power of juries at law to render vindictive or punitive-damages for certain classes of torts, is based upon the idea of blending the interests of society with the rights of suitors, and rendering the administration of civil justice ancillary to the deterring influences of more direct punishments on behalf of' the State. The same idea has prompted the Legislature, at times, to prescribe double or treble damages to be rendered in behalf of individuals, in aid of some policy of the Legislature-directed to the protection of property, or the peace of society,, or the ready collection of the revenue of the State. We have many such laws upon our statute books, and the courts have-never considered them amenable to the charge of taking property of A for Bin any unconstitutional manner. For instance : By Sec. 3190 of Gantt\u2019s Digest, owners of animals breaking through, or over sufficient fences, are made liable to double-damages for a second trespass ; and by Sec. 3192, the person, damaged by animals breaking an insufficient fence, is made liable in double damages for killing or otherwise hurting-them.\nThe only distinction between such cases and this is, that in those cited, the circumstances which aggravate the injury exist, and characterize it at the time it is done ; whilst in this case the-aggravation of damages is made to depend upon a certain neglect of certain directions of the statute, framed for the purpose-of giving notice to the neighborhood of the injury done. It is, common in this State to turn stock upon the range, where they are not under the constant supervision of the owners.. Injuries\u00bb to them cannot well bo known at the time by the owners,, whilst the agents of the road running the trains, are generally aware of it. The statute makes it the duty of the engineer or conductor of the train to give the prescribed notice, that the owner may have an opportunity of identifying his property and taking steps for his indemnification, or proposing, or receiving proposals for arbitration, whilst the matter is fresh. In. furtherance of this policy it is by another section made a misdemeanor in any employee of the road to mutilate, disfigure, or carry off the carcass of any animal killed, without notifying two citizens to note and preserve the marks and value.\nThe regulation is a reasonable one, and the Legislature seems to have considered its neglect such a mark of carelessness and disregard of the property of others, as to connect it' with the act of killing, and make the company liable in double damages for the act of its agent, attended with such subsequent, neglect. The distinction between the cases is too nice to form, the ground of a constitutional objection.\nThe Supreme Court of Nebraska, at the October term, 1877, in the case of Atchison & Nebraska Railroad v. Baty, held an act unconstitutional which gave double damages to the owner of live stock killed by a railroad, in case the value was not paid in thirty days after demand made therefor. It was supposed to be in conflict with that clause of their Constitution, declaring that all fines and penalties should be appropriated exclusively to the support of common schools, and also with the declaration that no person should be deprived of life, liberty or property, without due process of law. A careful consideration of the reasoning and authorities cited in that case, has failed to satisfy us of the correctness of the conclusion. It is a grave matter to declare an act of the Legislature null and void, and we decline to do so upon a question of doubt.\nThe true construction of the act in question is, that the killing being shown or confessed, the presumption is that it was done by the train, and that it resulted from want of due care. At common law the onus of proving these facts was on the plaintiff. The statute shifts the bui'den to the defendant, but does not preclude the company from showing that such due care was exercised in pursuit of its lawful business as to .absolve it from liability. In case the company may be liable \u2022at all, that liability is doubled by neglect of its agents to give the notice prescribed by the statute, but the failure to give notice does not impose or create a liability for an innocent act. \"Whether or not the fact that plaintiff had actual knowledge at the time of the injury to his horse, being present and witnessing the accident, renders the notice unnecessary, and prevents the liability for double damages from attaching, is a question \u25a0not made by the instructions given or refused, and will not be noticed here.\nFor error in admitting the testimony of plaintiff\u2019s wife, and also of removing from the jury the question of negligence or due care on the part of defendant, the judgment will he reversed .and the cause remanded for a new trial.", "type": "majority", "author": "EaiiiN, J. :" } ], "attorneys": [ "Ciarle & Williams for appellant.", "Ford, contra." ], "corrections": "", "head_matter": "L. R. & F. S. R. R. Co. v. Payne.\n\"Witnesses : Susband and wife, incompetent.\nHusband and wife are not competent witnesses for or against each other.\nEvidence: Legislative power over.\nThe Legislature has no power to divest rights hv prescribing to the courts, what shall he conclusive evidence.\nRailboads: Damages by; Statute construed.\nThe true construction of the Act of February 3, 1875, for the recovery of dam-, ages for injuries by railroads, is, that the killing being shown or admitted, the presumption is that it was done by the train and resulted from want of due care ; but this presumption may be repelled by proof. And in ease the company may be liable at all, that liability is doubled by the failure to give notice of the injury required by the statute; but the failure to give notice-does not create a liability for an innocent act.\nAPPEAL from Johnson Circuit Court.\nHon. W. W. MaNSEIELD, Circuit Judge.\nCiarle & Williams for appellant.\nFord, contra." }, "file_name": "0816-01", "first_page_order": 816, "last_page_order": 824 }