Mahor v. Kansas City Southern Railway Co.

Hart, J. (after stating the facts). According to the testimony of the engineer, he was keeping a lookout as the engine approached the point where the steer is said to have been struck by the engine and killed. There was a sharp curve in the track there, and on that account he could not see anything on the track at the point where the steer was killed. A demonstration was made by the engineer at a later date, and he testified that he could not see a man on' the.track at that point from the engine. His tesimony was corroborated by that of another person who was on the engine with him. According to the testimony of the fireman, he was busy shoveling coal at the time the steer was killed. The engine was approaching at the time a flag station, and there had beemno signal given to stop at the station that morning. Hence the train was running at its regular speed of thirty miles an hour. This testimony was amply sufficient to sustain a verdict for the defendant. It is next insisted that the court erred in modifying instruction No. 2 given at the request of the plaintiff. The instruction reads as follows: “You are instructed that if you believe from the preponderance of the evidence that the animal in question was killed by one of the defendant’s trains, then the presumption that the injury was the result of the defendant’s negligence arises and tends to contradict the testimony of the employees that a proper lookout was kept.” The modification consisted in striking out the words, “arises and tends to contradict the testimony of the employees that a proper lookout was kept.” There was no error in modifying the instruction. It is true the language of the instruction may be found in the opinion in the case of Fenton v. DeQueen & E. Ry. Co., 102 Ark. 386, but the court was there discussing a question of law, and the remarks by the court were entirely appropriate. The trial court properly modified the instruction so as to strike out the language. To have given the instruction without the modification would have been, under our system of practice, an invasion of the province of the jury. It is not the duty of the presiding judge to point out what inferences are made, or should be drawn, from particular facts. This rule is so well settled in this State that a citation of authorities in support of it is unnecessary. The court should have left in the instruction the word, “arises.” Doubtless, the presiding judge would have done this, had his attention been called to it. Having failed to do so, the plaintiff is not now in an attitude to complain. It is next insisted that the court erred in giving an instruction relating to the right of the plaintiff to recover double the value of the steer. We do not dee'm it necessary to set out this instruction or to discuss it. The jury returned a verdict for the defendant, and for this reason the instruction could not have in any wise prejudiced the rights of the plaintiff. It is next insisted that the court erred in giving instruction No. 3 requested by the defendant. The instruction reads as follows: “If the animal was upon the track, and if in the darkness it was impossible by reason of the light going in a straight line or other reason to see the animal on the track, then the engineer nor the fireman would be guilty of negligence by failing to see the animal on the. track, provided said animal was in the darkness .so that it could not be seen. If the animal was in the darkness by reason of there being a curve, and if, after they have seen it upon the track, it was- impossible to avoid the killing, then’ and in that event the plaintiff can not recover.” It is insisted that the instruction is too broad, and that under it the defendant would be relieved from all liability if its servants had purposely placed something in front of them to prevent them from seeing the animal on the track, or were looking another way. In making this contention, counsel refers to the words, “or other reason.” We can not agree with counsel in this contention. The instruction must he construed with reference to the facts in the case. The instruction was given to present the defendant’s theory of the case. The position of the engineer was on the right-hand side of the cab, and the steer was killed on a sharp curve to the left. The testimony showed that the headlight shone directly in front of the engine in a straight line, and it was the theory of the' defendant that on this account the engineer could not see the track at the point where the steer was killed. The words, “or other reason,” evidently referred to some fact as shown by the testimony which would prevent the engineer from seeing the track at the place where the steer was killed, and they were doubtless so understood by the jury. It was dark when the accident occurred, and this was one of the facts included in the words, “or other reason.” In any event, these words plainly referred to some fact or circumstances introduced in evidence and would be readily so understood by the jury. There is no prejudicial error in the record, and the judgment will be affirmed.