Jonesboro, Lake City & Eastern Railway Co. v. Kilgore

WOOD, J., (after stating the facts). The appellee does not allege that his mare was killed or wounded by contact or collision with appellant’s train running in this State, nor does the testimony of the appellee tend to prove that the animal in controversy was struck by the running of a train. Therefore, sections 6776 and 6781 of Kirby’s Digest have no application to the facts of this record. The only issue is whether or not the proximate cause of the injury and death of appellee’s mare was the negligence of the employees of the appellant. Earl v. St. L., I. M. & S. Ry. Co., 84 Ark. 507-10. The above case rules this. See, also, Central Ry. Co. v. Lindley, 105 Ark. 294-98. Under the evidence it was a question for the jury to determine whether or not the engineer of the appellant, after discovering the peril that the animal was in, exercised ordinary care, that is all the care that a reasonably prudent person should have exercised under the circumstances to avoid the injury. This issue was submitted under correct instructions, and there was testimony to sustain the verdict. The judgment is, therefore, affirmed.