{ "id": 1530602, "name": "Arkansas & Louisiana Railway Company v. Sanders", "name_abbreviation": "Arkansas & Louisiana Railway Co. v. Sanders", "decision_date": "1907-02-11", "docket_number": "", "first_page": "604", "last_page": "608", "citations": [ { "type": "official", "cite": "81 Ark. 604" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "81 Ark. 35", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1530659 ], "opinion_index": -1, "case_paths": [ "/ark/81/0035-01" ] }, { "cite": "68 Ark. 32", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1334049 ], "opinion_index": -1, "case_paths": [ "/ark/68/0032-01" ] }, { "cite": "91 S. W. Rep. 187", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "14 Ark. 537", "category": "reporters:state", "reporter": "Ark.", "weight": 3, "pin_cites": [ { "page": "646" }, { "page": "591" } ], "opinion_index": -1 }, { "cite": "91 S. W. Rep. 8", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "91 S. W. Rep. 30", "category": "reporters:state_regional", "reporter": "S.W.", "pin_cites": [ { "page": "31" } ], "opinion_index": -1 }, { "cite": "64 S. W. Rep. 630", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "65 Oh. St. 403", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 954828 ], "opinion_index": -1, "case_paths": [ "/ohio-st/65/0403-01" ] }, { "cite": "64 S. W. Rep. 863", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "109 Mich. 546", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1478628 ], "opinion_index": -1, "case_paths": [ "/mich/109/0546-01" ] }, { "cite": "21 Ark. 349", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1868251 ], "opinion_index": -1, "case_paths": [ "/ark/21/0349-01" ] }, { "cite": "41 W. Va. 332", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 12165662 ], "opinion_index": -1, "case_paths": [ "/w-va/41/0332-01" ] }, { "cite": "106 Cal. 220", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 1945291 ], "opinion_index": -1, "case_paths": [ "/cal/106/0220-01" ] }, { "cite": "28 Col. 502", "category": "reporters:state", "reporter": "Col.", "opinion_index": -1 }, { "cite": "23 Ark. 282", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1866046 ], "opinion_index": -1, "case_paths": [ "/ark/23/0282-01" ] }, { "cite": "70 Miss. 348", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1781444 ], "opinion_index": -1, "case_paths": [ "/miss/70/0348-01" ] }, { "cite": "81 Ga. 202", "category": "reporters:state", "reporter": "Ga.", "opinion_index": -1 }, { "cite": "67 Ark. 514", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1152569 ], "pin_cites": [ { "page": "516" } ], "opinion_index": -1, "case_paths": [ "/ark/67/0514-01" ] }, { "cite": "76 Ark. 607", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1501075 ], "opinion_index": 0, "case_paths": [ "/ark/76/0607-01" ] }, { "cite": "65 Ark. 98", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 609246 ], "opinion_index": 0, "case_paths": [ "/ark/65/0098-01" ] }, { "cite": "69 Ark. 619", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725642 ], "opinion_index": 0, "case_paths": [ "/ark/69/0619-01" ] } ], "analysis": { "cardinality": 448, "char_count": 7949, "ocr_confidence": 0.654, "pagerank": { "raw": 8.596571388704563e-08, "percentile": 0.4898754715043232 }, "sha256": "e61f639d4505645c80e94cced83671ae0afc9a3cc64856d31abffcf2c6d5062d", "simhash": "1:2ae9dc910918b981", "word_count": 1422 }, "last_updated": "2023-07-14T21:26:22.159591+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Arkansas & Louisiana Railway Company v. Sanders." ], "opinions": [ { "text": "McCulloch, J.\nThis is an action against the railway company by the owner of a horse to recover damages for its alleged negligent killing by servants of the company in the operation of a train, and it is the second appearance here of the case. Arkansas & Louisana Ry. Co. v. Sanders, 69 Ark. 619. The facts are stated in the former opinion. The second trial resulted in a verdict in favor of the plaintiff for the value of the horse, and the defendant again appealed. It is contended that the evidence does not sustain the verdict.\nProof of the killing of the animal made a prima facie case of negligence against the company, and cast upon it the burden of proving that its servants were not guilty of negligence. It was admitted by the engineer that no alarm, was given, either by ringing the bell or sounding the whistle. He stated, however, that in his judgment the chances of avoiding the injury'were, under the circumstances, better by omitting these alarms. \u2022 This left a question for the jury to determine whether he exercised ordinary care'to avoid injuring the animal. The jury were not bound to ' accept his opinion as to the best means of avoiding the injury. They had the right to exercise their own judgment in determining that question, as it was not a question calling for especial knowledge or experience on the subject. The evidence shows that the horse was running toward the track in front of the approaching engine, and it is very probable that an unusual alarm, such as a blast of the whistle, would have frightened the animal and diverted its course from the direction of the danger. Fordyce v. Edwards, 65 Ark. 98.\nAppellant complains of the court\u2019s refusal to give the following instruction: \u201cNo. 9: If the jury find from the evidence that the engineer and fireman did all they reasonably could have done to avert an injury to the animal in controversy, and in good faith exercised the best judgment they could under the circumstances and in the time they had to consider, they will find for the defendant, though they further find that, had they acted otherwise, the accident would not dr might not have happened.\u2019' The instruction was properly refused. It made the question of negligence or due care depend upon whether or not the engineer and fireman \u201cin good- faith exercised the best judgment they could under the circumstances.\u201d This is not the correct test of negligence, which is the omission to do something which a reasonably prudent and careful person would, or the doing something which such a person would not, do under like circumstances. 1 Thompson on Negligence, \u00a7 \u00a7 1, 2; Hot Springs Railway Co. v. Newman, 76 Ark. 607. The engineer and fireman may have in perfect good faith done what they honestly believed to be the best in order to avoid the injury, and yet have been guilty of negligence.\nNo error was committed by the court in permitting witnesses to testify, from having the plaintiff point out the place where the animal was killed, as to the distance the engineer and fireman could have seen it after the engine passed out of the cut.- Their testimony was, of course, founded upon the truth of plaintiff\u2019s statement pointing out the place to them, and the jury considered this in testing the weight of their testimony. It was not hearsay, because the plaintiff testified that he went with them and assisted in measuring the distance.\nNor was there any error in instructing the jury upon the duty of defendant\u2019s servants to keep a lookout. There was evidence to base the instruction upon, as the engineer testified that he saw the horse only 70 or 100 yards in front of the engine, and the testimony of the. other witnesses tended to show that the horse could have been seen about 156 yards. If it could have been seen that distance, and the engineer did not see it until he got within a distance of 100 yards, the jury were warranted in finding that no lookout was kept.\nJudgment affirmed.", "type": "majority", "author": "McCulloch, J." } ], "attorneys": [ "W. C. Rodgers and B. S. Johnson, for appellant.", "W. P. Peazel and Sain & Sain, for appellee." ], "corrections": "", "head_matter": "Arkansas & Louisiana Railway Company v. Sanders.\nOpinion delivered February 11, 1907.\n1. Stock killing \u2014 negligence.\u2014Proof of the killing of an animal by a railroad train makes a prima facie case of negligence against fhe company, and casts upon it the burden of proving that its servants \u2022 were not guilty of negligence. (Page 606.)\n2. Same. \u2014 'Although the engineer in charge of the engine which killed an animal testified that in his judgment the chances of avoiding the injury were bettered by omitting to ring the bell or sound the whistle, the jury were not bound to accept his opinion, and might have found that he failed to exercise ordinary care to avoid injuring the animal. (Page 606.)\n3. Same \u2014 test oe negligence. \u2014 An instruction which made the question of negligence to depend upon whether or not the person did the best he could under the circumstances was properly refused; the test of negligence being whether such person omitted to do something which a reasonably prudent person would, or did something which a reasonable prudent person would not, do under like circumstances. (Page 607.)\n4. Evidence- \u2014 hearsay.\u2014It was not error to permit witnesses to testify, from having the plaintiff point out the place where the animal in question was killed by a train, as to the distance the engineer and fireman could have seen the animal after the engine passed out of a certain cut, where the plaintiff also testified that he went with these witnesses and assisted them in measuring the distance. (Page 607.)\n3, Railroad \u2014 duty to keep lookout. \u2014 Where the evidence showed that an animal on a railroad track could have been seen by the trainmen about 136 yards ahead of the engine, and the engineer testified that he did not see it until he got within a distance of 100 yards, the jury were warranted in finding that no lookout was kept. (Page 607.)\nAppeal from Howard Circuit Court; James S. Steel, Judge;\naffirmed.\nW. C. Rodgers and B. S. Johnson, for appellant.\n1. The peremptory instruction for defendant should have been given. The issues are matters of law, as there is no conflict in the evidence, and no liability. The prima facie case resulting from the injury was clearly overcome by the evidence, and the jury could not disregard it. 67 Ark. 514, 516; 53 Id. 96, 97; 62 Id. 182, 185; 66 Id. 439, 441; -81 Ga. 202; 83 Id. 393; 70 Miss. 348.\n2. It was error to permit plaintiff to prove the location of the accident by witnesses from his own statements as to where the horse was when struck. 23 Ark. 282-6; 28 Col. 502'; 106 Cal. 220; 41 W. Va. 332; 21 Ark. 349> 356; 109 Mich. 546; 64 S. W. Rep. 863; 65 Oh. St. 403; 64 S. W. Rep. 630; 91 S. W. Rep. 30, 31; 92 Id. 251; 91 S. W. Rep. 8.\n3. The ninth instruction asked by defendant correctly stated the law, and should have been given\u2019. The first, second, third and fourth instructions for plaintiff should not have been given. The first is vicious; the second is wrong; the third is objectionable as it gives the jury no guide as to what is due care; the fourth is abstract. Abstract instructions serve no good purpose, and giving them is error. 14 Ark. 537; 36 Id. 646; 37 Id. 591; 54 Id. 339; 56 Id. 461; 61 Id. 560; 91 S. W. Rep. 187; 92 Id. 788.\nW. P. Peazel and Sain & Sain, for appellee.\nIt was the duty of the employees, after discovering the horse, to do all in their power to avoid the killing. They did nothing, and can not excuse their negligence by stating their experience. Whether it was safer not to sound the alarm was for the jury. 68 Ark. 32; 57 Id. 192; See, also, 81 Ark. 35. These authorities show that there is no error in the instructions given and none in refusing these asked by defendant. If the engineer saw the horse so near as to indicate danger, he was negligent in not .sounding the alarm, slowing up, etc. If he could have seen the horse in time and by exercise of ordinary care avoided the injury, and failed to do so, he was guilty of . negligence; or, if no proper lookout was kept, it was negligence." }, "file_name": "0604-01", "first_page_order": 624, "last_page_order": 628 }