{ "id": 1499073, "name": "Little Rock Railway & Electric Company v. Newman", "name_abbreviation": "Little Rock Railway & Electric Co. v. Newman", "decision_date": "1906-02-10", "docket_number": "", "first_page": "599", "last_page": "602", "citations": [ { "type": "official", "cite": "77 Ark. 599" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "62 Ark. 164", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1905711 ], "opinion_index": -1, "case_paths": [ "/ark/62/0164-01" ] }, { "cite": "72 Ark. 572", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505607 ], "opinion_index": -1, "case_paths": [ "/ark/72/0572-01" ] }, { "cite": "51 Ark. 467", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724096 ], "opinion_index": -1, "case_paths": [ "/ark/51/0467-01" ] }, { "cite": "37 Ark. 571", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1870932 ], "opinion_index": -1, "case_paths": [ "/ark/37/0571-01" ] }, { "cite": "33 Ark. 816", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726426 ], "opinion_index": -1, "case_paths": [ "/ark/33/0816-01" ] }, { "cite": "69 Ark. 249", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "50 Ark. 397", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723270 ], "opinion_index": -1, "case_paths": [ "/ark/50/0397-01" ] }, { "cite": "66 Ark. 495", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "62 Ark. 166", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "58 Ark. 277", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329131 ], "opinion_index": 0, "case_paths": [ "/ark/58/0277-01" ] }, { "cite": "68 Ark. 32", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1334049 ], "opinion_index": 0, "case_paths": [ "/ark/68/0032-01" ] }, { "cite": "66 Ark. 414", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1909775 ], "opinion_index": 0, "case_paths": [ "/ark/66/0414-01" ] }, { "cite": "66 Ark. 248", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1909778 ], "opinion_index": 0, "case_paths": [ "/ark/66/0248-01" ] }, { "cite": "64 Ark. 236", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907417 ], "opinion_index": 0, "case_paths": [ "/ark/64/0236-01" ] }, { "cite": "69 Ark. 289", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722156 ], "opinion_index": 0, "case_paths": [ "/ark/69/0289-01" ] }, { "cite": "37 Ark. 562", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871013 ], "opinion_index": 0, "case_paths": [ "/ark/37/0562-01" ] }, { "cite": "48 Ark. 333", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1887737 ], "opinion_index": 0, "case_paths": [ "/ark/48/0333-01" ] }, { "cite": "61 Ark. 52", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902352 ], "opinion_index": 0, "case_paths": [ "/ark/61/0052-01" ] }, { "cite": "43 Ark. 99", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1894499 ], "opinion_index": 0, "case_paths": [ "/ark/43/0099-01" ] }, { "cite": "72 Ark. 572", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505607 ], "opinion_index": 0, "case_paths": [ "/ark/72/0572-01" ] }, { "cite": "33 Ark. 816", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726426 ], "opinion_index": 0, "case_paths": [ "/ark/33/0816-01" ] } ], "analysis": { "cardinality": 450, "char_count": 9512, "ocr_confidence": 0.646, "pagerank": { "raw": 1.5490373149860001e-07, "percentile": 0.6743020539035287 }, "sha256": "f74d3437751c2011b875fc179fe6729d835fc99bf949bb12ba445dfaa46e6f6c", "simhash": "1:8f6749185963d7fc", "word_count": 1712 }, "last_updated": "2023-07-14T17:07:56.426688+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Little Rock Railway & Electric Company v. Newman." ], "opinions": [ { "text": "Wood, J.\nThis appeal seeks to reverse a judgment against appellant recovered by appellee for the alleged negligent killing of a certain hog.\nThe proof showed that the hog was killed by one of appellant\u2019s cars. And there was evidence from which the jury might have found that the motorman in charge of the car was negligent. But there is no evidence that the negligence of the motorman was the proximate cause of the injury. There is no proof that the motorman saw or could have seen the hog in time, by the use of ordinary care, to have prevented striking it. There was proof that the track was straight, and that the motorman might have seen a hog, had it been on the track in front of him. But there is no proof that the hog came on the track in front 'of the motorman in time for him to have stopped the car before striking it, had he seen it and used all the means in his power to that end. On the contrary, it was in evidence that the motorman remarked at the time \u201cthat the hog jumped on the track right in front of the car.\u201d This was objected to, but the declaration, was a part of the res gestae and proper testimony. Carr v. State, 43 Ark. 99; St. Louis, I. M. & S. Ry. Co. v. Kelley, 61 Ark. 52; Little Rock, M. R. & T. Ry. Co. v. Leverett, 48 Ark. 333. This was the only \u2022evidence as to how the hog got on the track.\n\u2022 The hog was outside the \u201cstock limit,\u201d and it was not therefore contributory negligence for it to be running at large. Little Rock & F. S. Ry. Co. v. Finley, 37 Ark. 562; Little Rock Traction & El. Co. v. Morrison, 69 Ark. 289.\nThe' burden was upon the appellee to show that the hog was killed through the negligence of the appellant. She has failed to prove this; for, under the proof in this record, there is nothing to show that the hog would not have been killed, even if the motorman had been keeping the proper lookout, and had used every means available on a properly equipped car to avoid it.\nSec. 6773, Kirby\u2019s Digest, making all railroads responsible for all damages to property caused by the running of trains in this State, is not applicable to street railways. They do not run trains, in the sense in which the term was intended by the law-makers. The whole act, February 3, 1875, shows that the Legislature did not have in mind street railways. This court, since Little Rock & F. S. Rd. Co. v. Payne, 33 Ark. 816, has often .held under this statute that where stock is.killed by the running of trains there is a presumption that such killing was through the \u2018 negligence of. the company operating such trains. St. Louis S. W. Ry. Co. v. Russell, 64 Ark. 236; St. Louis, I. M. & S. Ry. Co. v. Bragg, 66 Ark. 248; Little Rock & F. S. Ry. Co. v. Wilson, 66 Ark. 414; St. Louis S. W. Ry. Co. v. Costello, 68 Ark. 32. \u2018But no such presumption prevails in the case of street railways. In such cases it is not a question of presumption, but a matter of proof. Hot Springs Street Rd. Co. v. Hildreth, 72 Ark. 572. Doubtless, the presumption that is indulged under the statute applicable to railroads running trains was invoked below, \u25a0.as it has. been here, to uphold this verdict, which is otherwise \u2018without proof to support it.\nThe court should have given the first instruction asked by appellant. The court did not err in refusing requests fourth and sixth. The latter part of the fourth instruction as requested was abstract, there being no evidence- that the motorman discovered the hog before the injury occurred. The fourth as modified was objectionable because it was abstract, there being no evidence to support it. The instruction given to the jury after the case had been submitted was in bad form, if not erroneous and prejudicial. Southern Ins. Co. v. White, 58 Ark. 277. But it is unnecessary to determine whether it was reversible errof. We assume it will not be repeated on another trial. For the error indicated the judgment is reversed, and the cause is remanded for new trial.\nThe first, fourth and sixth instructions asked by the defendant and refused by the court are as follows:\n\"First: You are instructed to find for the defendant.\u201d\n\"Fourth: You are instructed that before you can find for the plaintiff you must find from the evidence that the hog went upon the track and was seen by the motorman of the car when the car was a sufficient distance away to have permitted him, by the exercise of ordinary care and prudence, to stop the car before striking the hog. If you find from the evidence that the motorman exercised ordinary and reasonable care to avoid the accident after he discovered the danger to the hog, and was unable to do so, then your verdict will be for the defendant.\u201d\n\"Sixth: If you find from the evidence that plaintiff was guilty of negligence in failing to properly care for and guard her hogs, and that such negligence directly contributed to cause the injury complained of, your verdict should be for the defendant, unless you further find that defendant\u2019s employees in charge of the car became aware of the danger to the hog in time to have avoided injuring it by the exercise of proper care, and failed to use such care.\u201d\nThe fourth instruction, with the court\u2019s modification indicated by the black letters, is as follows:\n\u201cYou are instructed that before you can find for the plaintiff you must find from the evidence that the hog went upon the track and was seen by the motorman of the car, or could have been seen by him In the use of ordinary care In operating the car,, when the car was a sufficient distance away to have permitted him by the exercise of ordinary care and prudence to stop the car before striking the hog. If you find from the evidence that the motorman exercised ordinary and reasonable care to avoid the accident after he discovered the danger to the hog, and was unable to do so, then your verdict will be for the defendant.\u201d\nThe instruction given by the court after the case was submitted was as follows:\n\u201cGentlemen, this is a case peculiarly within the province of the jury to decide. The facts are as fully before you as they can be put before any jury. The law is plain and simple. The amount is small. It costs the county more to try this case than is involved to either of the litigants, and it is the earnest desire of the court that you decide this case, if you can, without giving up your honest and conscientious conviction.\u201d (Reporter.)", "type": "majority", "author": "Wood, J." } ], "attorneys": [ "Rose, Hemingway, Cantrell, & Loughborough, for. appellants.", "A. J. Newman, for appellee." ], "corrections": "", "head_matter": "Little Rock Railway & Electric Company v. Newman.\nOpinion delivered February 10, 1906.\n1. Evidence \u2014 RES GESTAS.\u2014 In an action, against a street railroad company for negligently killing a hog a statement of the motorman in charge of the car, made at the time of the killing, \u201cthat the hog jumped on the track in front of the car\u201d was admissible as part of the res gestae. (Page 600.)\n2. Contributory negligence \u2014 stock running at large. \u2014 The fact that a hog was running at large outside the stock limits of the city did not constitute contributory negligence on the part of the owner.\u2019 (Page 600.)\n3. Street railroad \u2014 killing of animal \u2014 burden of proof. \u2014 In an action against a street railroad company for negligently killing an animal, the burden is on the plaintiff to show that it was killed - by the company\u2019s negligence. (Page 601.)\n4. Negligence \u2014 proximate cause. \u2014 Evidence that a motorman in charge of a street car was not -keeping a lookout and did not use every means to avoid killing an animal on the track will not support a finding against the street railroad company, where there was nothing to show that the hog would not have been killed if the motorman had kept the proper lookout. (Page 601.)\n5. Street railroad \u2014 presumption of negligence. \u2014 The statutory rule that where damage to property is done by the running of trains there is a presumption that such damage was caused by the negligence of the company operating such trains (Kirby\u2019s Digest, \u00a7 6773) does not apply to the case of stock killed by the running of a street car. (Page 601.)\n6. Trial \u2014 refusal of abstract instruction. \u2014 It was not error to refuse \u2022 to give an abstract instruction. (Page 601.)\nAppeal from Pulaski Circuit Court; Edward W. Win\u00ediBld, Judge;\nreversed.\nRose, Hemingway, Cantrell, & Loughborough, for. appellants.\n1. Plaintiff can not complain because the conductor testified \u25a0to the motorman\u2019s statement'that \u201cthe hog jumped on the track right in front of the car,\u201d having brought it out on cross-examination. It was a part of the res gestae and competent.\n2. The court erred in refusing defendant\u2019s first, .fourth and sixth instructions, and in giving the fourth as modified. The question whether the plaintiff, living by the car tracks, was negligent in permitting her hog to run at large, ought to have gone, to the jury. 62 Ark. 166.\n3. The court\u2019s instruction to the jury, after they had announced that they could not agree on a verdict, was highly prejudicial. The amount involved and the cost to the - county have nothing to do with the merits, and ought not to influence a jury in deciding the case.\nA. J. Newman, for appellee.\nx. Testimony as to the declaration of the motorman was incompetent, and not admissible as a part of the res gestae. 66 Ark. 495; 50 Ark. 397.\n2. There was no evidence of negligence on the part of plaintiff. 37 Ark. \u00bf68; 69 Ark. 249.\n3. The killing being proved, the presumption is that the accident was the result of negligence on the part of defendant. 33 Ark. 816; 37 Ark. 571.\n4. The evidence is sufficient to support the verdict, and the judgment will not be disturbed. 51 Ark. 467; 72 Ark. 572; 62 Ark. 164." }, "file_name": "0599-01", "first_page_order": 621, "last_page_order": 624 }