Sands v. Linch , 122 Ark. 93 ( 1916 )

Wood, J.,

(after stating the facts). Appellants contend that there is no basis in the evidence for submitting to the jury the issue as to whether or not the appellants ’ foreman, in charge of the operation of the motor car, was negligent. Giving the evidence its strongest probative force in favor of the appellee, the jury were warranted in finding that the car, at the time of the injury, was being propelled by the motorman under the directions of the foreman, Lenox; that the motorman would not have started up the car at the high rate of speed it was traveling iat the time of the injury if he had known that there were still sheep on the right-of-way; that'the foreman saw that these two sheep were still on the right-of-way, within the enclosure, when he told the motorman that the rail was clear and instructed him to “let her go,” that is, turn on the gasoline and increase the speed of the car; that the foreman, by the exercise of ordinary care, could have seen that' the car, at its increased speed, was overtaking the fleeing sheep; that for a distance of 250 or 300 yards the car moved with its increasing speed until it overtook the frightened sheep; that at the time the sheep, dazed by contact with the guy-wire, jumped upon the track in front'of the car while the same was going at too great rate of speed to avert the collision. These facts, which the jury were warranted in finding from the evidence, justified their conclusion. The evidence warranted these findings of fact, and made the issue as to whether the appellants were negligent in the manner of operating the motor car one of fact for the jury.

(2) The undisputed evidence shows that the appellants negligently failed to comply with the requirements of Act 165 of the Acts of 1905. Section 1 of that act requires that the St. Louis & North Arkansas Railway Company shall fence its right-of-way in the counties of Carroll, Boone and Searcy. Section 2 requires that the fence shall be built on both sides of the roadbed and anywhere on the right-of-way so as to prevent stock from crossing the tracks; that the f encing material shall be close enough to keep out of said enclosure, mules, horses, cattle, hogs, sheep and goats. Section 4 requires that the company shall keep the fences in good repair, and provides that when in such condition the company shall not be liable for any stock killed or injured on the tracks so fenced; but if any stock is killed or injured on the tracks when the fence is not in good condition on account of the negligence of the 'Company, the company shall be liable in damages in double the value of the ¡animal so killed or injured. Section 5 renders a violation of the act a misdemeanor and fixes a fine of not less than $50 nor more than $500 for failure to comply with same.

The instructions given and refused by the court presented the issue ¡as to whether or not a negligent failure on the part of the railroad company to comply with the terms of the act, with the injury to the appellee as the proximate result of such failure, would render the company liable to the appellee for damages on account of such injury. The appellant contends that the act was not passed for the protection of the employees, but was passed to prevent injuries to and the killing of stock and was designed exclusively for the benefit of owners of live stock in the localities ¡affected 'and who were damaged by reason of having their live stock killed or injured on account of a failure of the company to comply with the requirements of the statute. In St. Louis & S. F. Rd. Co. v. Kitchen, 98 Ark. 507-516, we had under consideration a ¡similar statute of Oklahoma. The court said: “If has been decided, under similar statutes, that the requirement is supposed to have been intended for the protection of all persons upon railroad trains who are exposed to dangers of travel, and that the person injured by reason of the omission to comply with the statute was entitled to recover on account thereof. ’ ’ Mo. Pac. Ry. Co. v. Hames, 115 U. S. 522.

While the statute was designed primarily for the protection of live stock and for the benefit of the owners of such stock that might ibe injured by a failure to comply with the requirements of the act, nevertheless where such failure is the proximate cause or contributes proximately to cause a personal injury to an employee of the company, or anyone else, a breach of the statutory duty may 'be shown as evidence of negligence on the part of the company causing the injury. This principle is recognized in Hayes v. Michigan Cent. Rd. Co., 111 U. S. 228. There the railway company, by municipal ordinance, was required to erect ia fence upon the line of its road within the corporate limits for the purpose of protecting against injury to persons, ¡and the court held that one who was injured by a failure to comply with the ordinance might recover if he established that the accident was reasonably connected with the want of precaution as the cause of the injury. Although the ordinance in that case was designed for the protection of persons generally against personal injury, yet the court shows that the same principle applicable under such an ordinance or statute is also applicable under those statutes that are passed for the protection of animals and for the benefit of their owners. For the court says: “In the analogous case of fences required fry the statute as a protection for animals, an action is given to the owners for the loss caused by the breach of the duty. And although in the case of injury to persons by reason of the same default, the failure to fence is not, as in the case of animals, conclusive of the liability, irrespective of negligence, yet an action will lie for the personal injury, and this breach of duty will be evidence of negligence.” See ¡also in this connection Bain v. Ft. Smith Light & Tr. Co., 116 Ark. 125, 172 S. W. 843; Pankey v. L. R. Ry. & Elec. Co., 117 Ark. 337, 174 S. W. 1170-73.

In the case of Atchison, T. & S. F. Ry. Co. v. Reesman, 60 Fed. 370, the Court of Appeals had under review, in an action by an individual to recover damages for personal injuries, a statute of Missouri in purport very similar to the one now under review, land the 'Court held that where an employee on the train was injured by a derailment caused by an animal getting on the track through the failure of the company to erect and maintain fences as the statute required, the company was liable. The court, through Mr. Justice Brewer, after stating the contention of the company, being the same contention as that of appellants here, said: “It is doubtless true that when a right is given by statute only those to whom the right is in terms given can avail themselves of its benefits, but it does not follow that when a duty is so imposed, a violation of that duty exposes the wrong-doer to liability to no person other than those specifically named in the statute. On the contrary, it is not unreasonable to say that every party who suffers injury by reason of the violation. of any duty is entitled to recover for such injuries. At any rate, it is clear that the fact that certain classes of persons were intended to be primarily protected by the discharge of a statutory duty will not necessarily prevent others, neither named nor intended as primary beneficiaries, from maintaining an action to recover for injuries caused by the violation of such legislative command. ’ ’

While there are authorities to the contrary, we are of the opinion that the weight of authority in this country is in favor of the rule above announced by the Court of Appeals of the Eighth Circuit, which is in accord with what we held in St. Louis & S. F. R. Co. v. Kitchen, supra. See many other cases cited in the brief of counsel for the appellee.

The judgment is therefore in all things correct, and it is affirmed.