Hot Springs Railroad v. Newman , 36 Ark. 607 ( 1880 )

Harrison, J.

There was no proof of any hindrance or impediment in the way of the cow’s getting off the track, or of any facts or .circumstances from which the persons in charge of the train might have foreseen, as a probable consequence of not sooner stopping the train, an injury to her, or that she would, in her fright, attempt to pass over the culvert, and not go off the track as the other cattle had done. Eor anything appearing to the contrary, egress from tbe track at the culvert was as possible and safe as where the others left it.

Though the injury might not have happened if the train had been sooner stopped,- yet, if it was not to have been foreseen or anticipated by the person in charge of it, as a natural or probable consequence of not stopping sooner, that the cows would attempt to pass over the culvert, or be injured, and which they, as persons of ordinary care and prudence, should have guarded against, negligence can not be imputed to them, or the defendant. “Culpable negligence is the omission to do something which a reasonable, prudent and honest man would do, or the doing something which such .a man would not do, under all the circumstances surrounding each particular case.” Shear. & Redf. on Negligence, sec. 7.

He who seeks a recovery for an injury caused by the alleged negligence of the defendant, must not only prove that he has suffered loss by the defendant’s act, or omission, but, also, that the act or omission was a violation of a duty required of him. (lb., sec. 18). We do not think the evidence sustained the finding of negligence.

As there was, as we think, no proof of negligence, the declaration of law asked by the defendant, which the court declined to make, should have been made.

The judgment is reversed, and the cause remanded for a new trial.