Railway Co. v. Taylor

1. Right oi special owner g^etestoek Cockrill, C. J. 1. Construing the evidence most . strongly in xavor ox the appellant, Taylor had a special property in the animal killed which empowered him to recover its full value. St. Louis, etc. Railway v. Biggs, 50 Ark. 169. No prejudice results to the railway, therefore, in permitting him to maintain the action. 2. NegliwlyCL°kiiHnostock. 2. The statute declares that railroads operated in . r State shall be responsible for all damages done or caused by the running of their trains. Mansf. Dig. sec. 5537. In a suit against a railway company to recover for an injury done to property by a running engine or train, this statute casts upon the company the burden of showing due care on its part. That is not the express provision of the statute, but it is the nearest approach to the legislative intent that the court was able to extract from it, consistent with the constitution. L. R. etc. R. Co. v. Payne, 33 Ark. 816; Tilley v. Railway, 49 id. 535, 542. The statute has found application in our courts mainly in cases where live stock when running at large have been injured by railway trains, and we have ruled many times that proof of injury by the railway in such cases raises a presumption of negligence against the company. There is nothing in the terms of the statute to warrant a change in the construction of it when the proof shows that an animal was under the control of its owner or his agent at the time of the injury. The statutory policy of casting the burden of proof on the railway to show care when the injury is proved may have had its origin in the fact that the company’s employees are most likely to know the facts while the owner of the injured property is ignorant of them, but the enactment does not limit the operation of the rule to that state of facts. The arg-ument that the party having the best means of information should bear the burden of proof might well be addressed to the policy of enacting such a statute, but not to its construction when its language will not admit of the distinction. When the proof shows that the act of the owner having control of the animal when injured has contributed to the injury, the statute is. inoperative because the contributory negligence of the owner would bar a recovery. Thus, if the plaintiff here in developing his case had shown that he was wrongfully using the track of the railway as a highway for his mule and vehicle, and had shown no other fact save that the property was injured by the defendant’s moving train, he would not have established a frima facie case under the statute, because, upon the case thus proved, he could recover only for a wanton injury, and the statute raises no presumption of wantonness. St. Louis, etc. Railway v. Monday, 49 Ark. 257, 264-5. But in this case the plaintiff adduced evidence tending to show that, at the time of the injury, he was using the right of way between the main and side tracks by the license and invitation of the company. If that was true, he was not a trespasser but was there as of right, and the company owed him the duty to observe ordinary care to preserve his property from injury. The fact of injury is therefore evidence of the want of such care— that is, of negligence. The charge to that effect was not erroneous. The court’s charge upon the subject of contributory negligence by the owner was full, and it was favorable to the defendant. The jury found upon conflicting testimony that he was not guilty of contributory negligence, and that the railway did not use due care. The verdict is conclusive. 3. The party having the “burden of proof in the whole action ’ ’ has the right to open and conclude the argument. Mansf. Dig. sec. 5131. Such a burden lies on the party who would be defeated if no evidence were given on either side. Ib. 2871. Upon the defendant’s admission of the killing only, if the plaintiff could have recovered at all, his recovery would have been confined to nominal damages • because the defendant specifically denied the extent of his injury. But a recovery of substantial damages, and not of the costs only, was what the plaintiff sought. The burden of proving the extent of his injury remained upon him throughout, and gave him the right to begin and reply. Springfield Railway v. Rhea, 44 Ark. 258, 264; 1 Thompson, Trials, secs. 228-9. No other objection is urged by the appellant. Finding no error, the judgment is affirmed.