Fenton v. De Queen & Eastern Railway Co.

Kirby, J., (after stating the facts). The instruction, numbered 1, as requested, should have been given. St. Louis, I. M. & S. Ry. Co. v. Ewing, 85 Ark. 53; St. Louis, I. M. & S. Ry. Co. v. Norton, 71 Ark. 317. It is insisted by learned counsel for appellee that there was no testimony upon which to base such instruction, and that no prejudice could have resulted from the failure to give it, since the undisputed testimony shows that the employees did keep the lookout required by law, the engineer and fireman both having testified they were keeping a lookout at the time and that the injury was not done by that train. It is true that no witness testified that the animal was struck by a train, but she was found near the track badly in- • jured, opposite where a horse’s tracks left the track of the railroad, after having come down the track for fifty or sixty yards between the rails, the tracks of other horses showing on the sides of the dump and at the ends of the ties, and the jury might have inferred from all the facts in evidence that she was injured by the running of a train on appellee’s road, either by the one upon which the employees testified a lookout was kept, or another train. No presumption arises from the finding of an animal injured near a railroad track that it was done by the running of trains, as the court properly told the jury in .its instruction numbered 1. Railway Co. v. Sagely, 56 Ark. 549; Railway Co. v. Parks, 60 Ark. 187; Midland Valley Rd. Co. v. Skinner, 99 Ark. 370. It is only after proof of facts and circumstances from which the jury can reasonably infer that the animal was injured by the operation of a railroad train that the presumption arises that it was negligently done. “But this presumption of negligence against the railroad company could be rebutted by proof that at the time of the injury complained of the company did exercise due care and diligence and was free from negligence.” Midland Valley Rd. Co. v. Skinner, supra. When sufficient proof is introduced to convince the jury that the injury to the animal was caused by the operation of the train, then the presumption that the injury was the result of the railroad company’s negligence arises and tends to contradict the testimony of the employees that a proper lookout was kept, and it can not be said that the the evidence of such employees was undisputed. This presumption of negligence is rebuttable, however, and, if the jury believed from the evidence that a proper lookout was kept, and the animal was not discovered, it is rebutted, for it might have come upon the track so close to the approaching train that the injury could not have been avoided, without regard to whether a proper lookout was kept or not, although, no evidence of this kind was introduced in this case. Instruction numbered 2, as requested, was properly refused, since it directed a finding against the defendant if the animal in question was injured by one of its trains, without regard to whether it was negligently done or not. Instruction numbered 4 was subject to like objection,in that it, after properly stating that the injury to the animal could be proved by circumstantial evidence, etc., told the jury that if,they believed from a preponderance of the evidence, taking the facts and circumstances into consideration, that the animal was injured by a train, the presumption would arise that it was negligently done, and directed them to find for the plaintiff. The direction was not proper, since it had the effect to declare the presumption of negligence conclusive. No other instruction, defining the duty of appellee to keep a lookout for stock upon its track, while in the operation of its trains, being given, for the court’s error in refusing to give appellant’s instruction numbered 1 the judgment is reversed, and the case is remanded for a new trial.