Arkansas & Louisiana Railway Co. v. Sanders , 81 Ark. 604 ( 1907 )

McCulloch, J.

This is an action against the railway company by the owner of a horse to recover damages for its alleged negligent killing by servants of the company in the operation of a train, and it is the second appearance here of the case. Arkansas & Louisana Ry. Co. v. Sanders, 69 Ark. 619. The facts are stated in the former opinion. The second trial resulted in a verdict in favor of the plaintiff for the value of the horse, and the defendant again appealed. It is contended that the evidence does not sustain the verdict.

Proof of the killing of the animal made a prima facie case of negligence against the company, and cast upon it the burden of proving that its servants were not guilty of negligence. It was admitted by the engineer that no alarm, was given, either by ringing the bell or sounding the whistle. He stated, however, that in his judgment the chances of avoiding the injury'were, under the circumstances, better by omitting these alarms. • This left a question for the jury to determine whether he exercised ordinary care'to avoid injuring the animal. The jury were not bound to ' accept his opinion as to the best means of avoiding the injury. They had the right to exercise their own judgment in determining that question, as it was not a question calling for especial knowledge or experience on the subject. The evidence shows that the horse was running toward the track in front of the approaching engine, and it is very probable that an unusual alarm, such as a blast of the whistle, would have frightened the animal and diverted its course from the direction of the danger. Fordyce v. Edwards, 65 Ark. 98.

Appellant complains of the court’s refusal to give the following instruction: “No. 9: If the jury find from the evidence that the engineer and fireman did all they reasonably could have done to avert an injury to the animal in controversy, and in good faith exercised the best judgment they could under the circumstances and in the time they had to consider, they will find for the defendant, though they further find that, had they acted otherwise, the accident would not dr might not have happened.’' The instruction was properly refused. It made the question of negligence or due care depend upon whether or not the engineer and fireman “in good- faith exercised the best judgment they could under the circumstances.” This is not the correct test of negligence, which is the omission to do something which a reasonably prudent and careful person would, or the doing something which such a person would not, do under like circumstances. 1 Thompson on Negligence, § § 1, 2; Hot Springs Railway Co. v. Newman, 76 Ark. 607. The engineer and fireman may have in perfect good faith done what they honestly believed to be the best in order to avoid the injury, and yet have been guilty of negligence.

No error was committed by the court in permitting witnesses to testify, from having the plaintiff point out the place where the animal was killed, as to the distance the engineer and fireman could have seen it after the engine passed out of the cut.- Their testimony was, of course, founded upon the truth of plaintiff’s statement pointing out the place to them, and the jury considered this in testing the weight of their testimony. It was not hearsay, because the plaintiff testified that he went with them and assisted in measuring the distance.

Nor was there any error in instructing the jury upon the duty of defendant’s servants to keep a lookout. There was evidence to base the instruction upon, as the engineer testified that he saw the horse only 70 or 100 yards in front of the engine, and the testimony of the. other witnesses tended to show that the horse could have been seen about 156 yards. If it could have been seen that distance, and the engineer did not see it until he got within a distance of 100 yards, the jury were warranted in finding that no lookout was kept.

Judgment affirmed.