Choctaw, Oklahoma & Gulf Railroad v. Ingram , 71 Ark. 394 ( 1903 )

Hughes, J.,

(after stating the facts). We are of the opinion that the court erred in refusing to give to the jury instruction numbered two asked for by the defendant, which proposed to submit to them for determination the question whether the plaintiff had been guilty of contributory negligence.

If the man Duke was in charge of the horses, and could hear or see the train coming to the depot, and knew that the horses would probably cross the track at the crossing leading to the place where they usually fed, which the proof tends to show, and voluntarily turned them loose, and one of them was killed by the train in attempting to cross the track, this would be negligence contributing to the injury, and would bar recovery for it, although the railroad company was guilty of negligence. Whether the man Duke in charge of the horses voluntarily turned them loose, or whether they were frightened by the approach of the train, and he was obliged to let them go, the evidence does not plainly show. Duke did not testify in the case. There is evidence that tends to show that he voluntarily turned them loose, and we are of the opinion that the question should have been submitted to the jury, and that the instruction numbered 2 asked for by the defendant was proper, and should have been given. For error in refusing to give said • instruction the judgment is reversed, and the cause is remanded for a new trial.