Ford v. St. Louis, Iron Mountain & Southern Railway

Riddick, J., (after stating the facts.) The only question in this case is, whether the evidence at the trial was legally sufficient to support a verdict in favor of the plaintiff. In order to test that question, we must accept as true that view of the facts the most favorable to plaintiff which the evidence warrants. It is admitted that the cow was killed by defendant’s train, and this, under the statute, makes out a ¶rima facie case against the defendant. To rebut this, the engineer testified that he was keeping a careful lookout, and that the cow came upon the track from behind a box ear, and too close to the engine for him to check the train and avoid striking her. As this testimony was not contradicted, we take it to be true; but although he kept a proper lookout, he may have been guilty of negligence in other respects. There was evidence tending to show that, as the train came into the town from the south, it gave the signal for Louisiana street crossing, and then, running at a high rate of speed, exceeding thirty miles an hour, passed through the town, and over Tennessee crossing, without giving any further signal of any kind, meantime in its passage through the town striking and killing two cows, one of them the property of the plaintiff. Public convenience and necessity of course require that railroad trains should run at a high rate of speed, and the mere fact that a train was running fast at the time of striking an animal is no proof of negligence on the part of the company, when unconnected with other facts tending to show that it was negligence under the circumstances to run at such speed; for trains are expected to run fast. But when the accident happens in a city or populous town, the circumstances then may be such that the jury would be justified in finding the company guilty of negligence in running its train at a great and unusual rate of speed, and this is certainly true when the statutory signals are not sounded'for the different street crossings. St. Louis, I. M. & S. Ry. Co. v. Hendricks, 53 Ark. 201; 3 Elliott, Railroads, § 1160. We think therefore that the evidence in this case would support a finding that the company was negligent, and the next question is, would it authorize a finding that such negligence was the cause of the injury? The evidence tended to show that, at the time of the accident, the train was approaching, and within eighty rods of, the crossing on Tennessee street, but gave no signal of its approach. This court said, in a similar case, that, under such circumstances, it was a question for the jury to say whether the failure to give the statutory signals contributed to the injury. St. L., I. M. & S. Ry Co. v. Hendricks, 53 Ark. 201. In addition to this, if we assume that the jury were justified in finding, and would have found, that, under the circumstances, the company was guilty of negligence in running-its train at a high rate of speed, it would be for them to determine whether such speed was the proximate cause of the injury. The cow was close to the engine when first discovered,—too close for the engineer to avoid the collison with the train running at the rate of thirty miles an hour; but what would have been the effect of a lower rate of speed we are unable to say. Although the train could not have been stopped before reaching the point at which the cow came on the track, we are not able to say that a lower rate of speed would not have permitted the cow to cross the track before being struck by the train. This question was one peculiarly within the province of the jury to determine. On the whole case, we are of the opinion that the circuit judge erred in directing a verdict. The judgment is therefore reversed, and a new trial ordered.