L. R. & F. S. Railway Co. v. Finley

Harrison, J. i. tees-PASS: stock going; upon unincios“er 13 The doctrine of the Common Law that the owner of domestic animals is bound to keep them within . his own enclosure, or on his own land, and that if he permits them to run at large and they go upon the land of another, though uninclosed, he becomes a trespasser, has never been recognized in this State. Such a rule is inapplicable to the condition and circumstances of our people. It would be, or would have been in the early settlement of the country, where there was so much land lying waste and uninclosed, most oppressive and unwise, and from the first settlement of the State to the present time, all kinds of stock have been allowed to go at large on uninclosed lands. And it is shown, not only by the common understanding and custom of the people, but by the Statutes in relation to inclosures, estrays, and the marking and branding of stock, that the doctrine or rule was never considered as having any force or existence in Arkansas. 2. neghpermitting stock to go at A very prudent person might not, perhaps, allow his stock to go at large in the immediate vicinity of a railroad, and ° ° J -one who does so may not be altogether free from negligence, yet he assumes only the risk of an accident which might not be avoided by ordinary care and watchfulness of the agents or employes of the railroad company. Kerwhacker, v. The Cleveland, Columbus and Cincinnati R. R. Co., 3 Ohio St., 172; Trow v. The Vermont Cen. R. R. Co., 24 Verm., 487; The Chicago & Alton R. R. Co. v. Gretzner, 46 Ill., 74; Raiford v. Miss. Cen. R. R. Co., 43 Miss., 233; Davies v. Mann, 10 Mee. & Wel., 545. In Davis v. Mann, supra., the plaintiff fettered the forefeet of his ass and turned him into the public highway, and whilst it was grazing on the off-side of the road (which was about eight yards wide), and unable to get out of the way, the defendant’s wagon, with a team of three horses, coming down a slight descent, at what the witness termed a smartish pace, the driver being some little distance behind the horses, ran against the ass and killed it. The judge (Erskine) who tried the case at the assizes, told the jury that though the act of the plaintiff in leaving the ass on the highway, so fettered as to prevent his getting •out of the way of carriages traveling along it, might be illegal, still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the defendant; and he directed them, if they thought the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff. The jury having found a verdict for the plaintiff, on a motion for a new trial, Parke, B., said: “The judge simply told the jury that the mere fact of negligence on the part of the plaintiff in leaving his donkey on the public highway was no answer to the action, unless the donkey’s being there was the immediate cause of the injury; and that if they were of opinion that it was caused by the fault of the defendant’s servant, in driving too fast, or, which is the same thing, at a smartish pace, the mere fact of putting the ass upon the road would not bar the-plaintiff of his action. All that is perfectly correct, for although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there; or the purposely running against a carriage going on the wrong side of the road.” And Lord Abinger, C. B., said : “The defendant has not denied that the ass was lawfully in the highway; and, therefore, we must assume it to have been lawfully there; but even were it otherwise, it would have made no difference, for, as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.” 3. Dmgonce required of st00k' Although the mule was wrongfully on the defendant’s ** ^ track when lie received the injury of which he died, and was seen by the engineer, yet, if by the exercise of ordinary care and watchfulness, he might have seen him in time to have averted the danger, the defendant was liable for the injury that resulted from the accident. It was certainly the duty of the engineer to keep a constant and careful lookout and watch for stock which might be upon the track. The defendant's first instruction, as it was asked by him, was, therefore, not correct, but as modified by the court, was properly given to the jury. j;EI^f/fLI' ^1]®'0°¿ The construction by the court of the Act of February 3, 1875, for the recovery of damages for injuries by railroads, in the first instruction given on its own motion, was in accordance with the ruling in the case of L. R. & F. S. Ry. v. Payne, 33 Ark., 816. We held in that case that the killing of the animal on the track being shown or admitted, the presumption is that it was done by the train,- and resulted from want of due care, but that the presumption may be repelled by proof; and we see no reason to doubt the correctness of the ruling then made. There was, therefore, no error in that instruction, and the others complained of being in harmony with the view we have above expressed, they were all properly given. 5. pbaoTICE IN Discretes’tim.oSf^ The objection that the plaintiff; was permitted, after the J . A ' A evidence was closed, and the court had instructed the jury, to call a witness and prove that the mule was killed in Faulkner county, has not been insisted on hefebyappellant’s counsel. It was a matter within the sound discretion of the court, and there was no abuse of its discretion in allowing it to be done. Turner v. Tapscott, 30 Ark., 312; Lovells v. The State, 32 Ark., 585. As to the sufficiency of the evidence to warrant the verdict, we think there can be no question ; of its weight and the credibility of the witnesses, it was the province of the jury to judge. Finding no error, the judgment is affirmed.