{
  "id": 1504068,
  "name": "Saint Louis Southwestern Railway Company v. Bowen",
  "name_abbreviation": "Saint Louis Southwestern Railway Co. v. Bowen",
  "decision_date": "1905-01-21",
  "docket_number": "",
  "first_page": "594",
  "last_page": "596",
  "citations": [
    {
      "type": "official",
      "cite": "73 Ark. 594"
    }
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    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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    "name": "Ark."
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    {
      "cite": "60 Ark. 188",
      "category": "reporters:state",
      "reporter": "Ark.",
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    {
      "cite": "48 Ark. 366",
      "category": "reporters:state",
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      "cite": "66 Ark. 264",
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      "cite": "65 Ark. 54",
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    {
      "cite": "65 Ark. 255",
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      "reporter": "Ark.",
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    {
      "cite": "64 Ark. 236",
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      "reporter": "Ark.",
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        1907417
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  "analysis": {
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    "char_count": 3785,
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  "last_updated": "2023-07-14T18:58:55.652140+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Saint Louis Southwestern Railway Company v. Bowen."
    ],
    "opinions": [
      {
        "text": "Hire, C. J.\nThis case is brought here to review the following instruction: \u201cOrdinary care in the management of their trains is the measure of vigilance which the law exacts of railroad companies to avoid injury to domestic animals, and this means practically that companies\u2019 servants are to use all reasonable efforts to avoid harming an animal after it is discovered, or might by proper watchfulness be discovered, in or near the track; and if you believe from the .evidence that the defendants kept a constant lookout for stock along their right of way, and that, after seeing the horse or by proper watchfulness could have seen it, used reasonable care to avoid the killing, then you will find for the defendants.\u201d\nThis instruction is based upon section 6607, Kirby\u2019s Digest, which requires persons running trains to keep \u201ca constant lookout for persons and property upon the track.\u201d The instruction tells the jury that this requires the watchfulness near the track as well as on it, and then says that a constant lookout must be kept along the \u201cright of way.\u201d It is insisted that this broadens the duty of the railroad, and that it is error. With the exception of the use of the term \u201cright of way,\u201d the instruction is in exact accord with the construction placed on this statute in St. Louis S. W. Ry. Co. v. Russell, 64 Ark. 236. In that case the court said it was the duty of the employee keeping the lookout to take notice of animals approaching the track in front of the train and so close to the track as to be within range of his vision while looking along the track.\nIt is evident that the use of the term \u201cright of way\u201d was a formal inaccuracy, and it was not intended, construing the whole instruction together, to broaden the statute. The objection to the instruction was general, and not to this specific point, and, being a merely formal inaccuracy, it was the duty of the appellant to have specifically .pointed it out to the trial court. Had this been done, doubtless it would have been corrected. Under repeated decisions of this court a general objection and exception to the instruction is not sufficient to raise the question as to such error. St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255; Phoenix Ins. Co. v. Flemming, 65 Ark. 54; Williams v. State, 66 Ark. 264; St. Louis, I. M. & S. Ry. Co. v. Pritchett, 66 Ark. 46.\nThe judgment is affirmed.",
        "type": "majority",
        "author": "Hire, C. J."
      }
    ],
    "attorneys": [
      "Sam H. West and I. M. & J. G. Taylor, for appellant.",
      "I. H. Harrod, for appellee."
    ],
    "corrections": "",
    "head_matter": "Saint Louis Southwestern Railway Company v. Bowen.\nOpinion delivered January 21, 1905.\nInstruction \u2014 general objection \u2014 sufficiency.\u2014A general objection to an instruction concerning the duty of railway companies to keep a lookout for stock is insufficient to point out that the court erred in defining the duty to be to keep a constant lookout for stock \u201calong their right of way,\u201d instead of \u201cupon their track,\u201d as the language employed was merely formally inaccurate.\nAppeal from Arkansas Circuit Court.\nGeorge M. Ci-iaprine, Judge.\nSuit by W. C. Bowen against St. Louis Sbuthwestern Railway Company to recover damages caused by the killing of plaintiff\u2019s horse by engine and train of defendant at a highway crossing. Plaintiff recovered, and defendant appealed.\nAffirmed.\nSam H. West and I. M. & J. G. Taylor, for appellant.\nThe.third instruction was misleading. The jury were told, in effect, that, in defending against the presumption of negligence, etc., they could consider whether or not the railroad servants kept a lookout over the right of way, instead of the track. 48 Ark. 366; 52 Id. 62; Acts 1891, p'. 213; 60 Ark. 188.\nI. H. Harrod, for appellee.\nEven if the third instruction is technically erroneous, the judgment is right on the whole case. It was not prejudicial. An engineer cannot keep a lookout along the track without looking along the right of way within the limits of his vision."
  },
  "file_name": "0594-01",
  "first_page_order": 616,
  "last_page_order": 618
}