Arkansas Telephone Co. v. Ratteree ( 1893 )

Hughes, J.

There was evidence to support the verdict of the jury. The damages were not excessive. ■

1. Negligence as to fall of overhead wire.

Was there error in the instructions given ? Taken together, they declare the law applicable to the case. The court is of the opinion that the third should have been qualified by a statement that if the jury found the facts referred to in the instruction, and they were unexplained by evidence showing that the falling of the wire was unavoidable by the use of proper care on the part of the appellant, it made a prima facie case of negligence against it. The rule is that the happening of the accident from which injury results, where the occurrence is not out of the usual course, is prima facie evidence of negligence, which throws the burden upon the appellant of showing that the occurrence was unavoidable. The maxim “Res ipsa loquitur” applies to such a case. Railway Co. v. Hopkins, 54 Ark. 209; Railway Company v. Mitchell, ante, p. 418. But as there was no attempt by the appellant to show that the falling of the wire was unavoidable, the instruction was not prejudicial to the appellant. For such an error the court will not reverse.

2. contributory negligence question

As to the fifth instruction refused by the court, there was no evidence upon which to base it. At the time the wire fell and caused the horse to start, the appellee was in his wag'on, and the deaf mute boy was on the seat of the wagon. We are of the opinion that the question whether at the time of the accident the appellee had left his horse standing in the street without a competent person in charge of him was a question of fact properly left to the jury under the instructions of the court. On the evidence in this case it could hardly be said that the appellee could have been convicted of a misdemeanor, under the ordinance of the city of Fort Smith, for leaving his horse in the street, without a competent person to take charge of him. The jury might have found that the appellee being' in the wag-on was in charge of him himself, or they might have found the deaf mute boy, being- on the seat of the wagon, was competent to take charge of him. The horse did not run away. The ordinance shows that its purpose is to make owners of horses left in the street, without some competent person to take charge of them, responsible for all damages caused by the horse running away, and to punish the act as a misdemeanor, in the interest of the public as a police regulation.

Finding no substantial error, the judgment is affirmed.