Missouri Pacific Railroad Co. v. Mitchell , 170 Ark. 689 ( 1926 )

Hart, J.,

(after stating the facts). At the request of the defendant the court gave instructions Nos. 7 and 8, which read as follows:

“No. 7. You are instructed in this case that, where no person is injured, but only property is damaged, the defense of contributory negligence is an absolute defense, and, although you may find that the defendant was guilty of negligence, yet, if you find that the plaintiff was guilty of any negligence contributing to the damage, your verdict must be for the defendant, notwithstanding the negligence of the defendant, unless you find that the accident was caused by failure of keeping a constant lookout. ’ ’

“No. -8. You are instructed that if the act of the plaintiff or his son in permitting said team to become loose and wander upon the railroad track was the proximate cause of the damage, and that the negligence of the defendant was not the proximate cause of the damage, your verdict must be for the defendant.”

After counsel for the defendant had argued the case, the court modified instruction No. 8 to read as follows:

“You are instructed that, if the act of the plaintiff or-his son in permitting said team to become loose and wander upon the railroad track was the proximate cause of the damage, and that the negligence of the defendant was not the proximate cause of the damage, your verdict must be for the defendant, unless you find that the cause of the accident was defendant’s failure to keep a lookout.”

The sole reliance of counsel for the defendant for a reversal of the judgment is that the court erred in modifying instruction No. 8.

It is the contention of counsel for the defendant that the court correctly instructed the jury on the question of the plaintiff’s contributory negligence in instructions Nos. 7 and 8, as originally given, and that the modification of instruction No. 8 had the effect to eliminate the defense of the contributory negligence of the plaintiff. In other words, it is insisted that by modifying instruction No. 8 the court confused the defense of whether or not the negligence of the defendant was the proximate cause of the injury with the plea of the contributory negligence of the plaintiff.

We can not agree with counsel in this contention. The mule and horse were not in the immediate care, custody or control of the plaintiff or his son when they went upon the track. According to the plaintiff’s testimony, which is not contradicted, his son brought the team down and hitched it to a post near the postoffice in the town of Menifee. In some way not explained the team got loose and went upon the railroad track. There was no other testimony submitted to the jury upon this question, and we are .of the opinion that the court erred in submitting to the jury the contributory negligence of the plaintiff. The error in submitting the question of contributory negligence was committed at the request of the defendant, and it can not therefore be prejudiced by it.

The question then remains whether or not the court erred in modifying instruction No. 8, when considered without regard to the question of contributory negligence. The undisputed evidence shows that the animals were killed by the moving passenger train, and this fact constituted prima facie evidence of negligence on the part of the defendant in managing its train, and the burden devolved upon the defendant to show that it was not negligent in the premises. The question of whether the defendant’s servants were keeping a lookout, as required by the statute, was properly supmitted to the jury.

The question whether or not the engineer did all in his power to keep from injuring or killing the animals after he discovered that they were on the track was also properly submitted to the jury. Of course, according to the evidence of the engineer, the defendant was not negligent in this respect. According to his testimony, there was a slight curve in the track as the train approached the station at Menifee, and he at first thought that the animals were hitched to a vehicle in charge of some one near the track. He had whistled for the crossing, and was ringing the bell. Menifee was not a stop for his train, but, as soon as he saw that the team was on the track and not in charge of any one, he did all in his power to stop the train and to prevent hitting the team. His testimony, however, on this point is not undisputed. According to the testimony of the plaintiff and of a witness for him, the engineer could have seen the animals on the track at a. distance of 3,000' feet, and could have stopped the train in time to have avoided injuring them. In this connection it may be stated that the color of the mule was gray, and of the horse white. The engineer did not ring the bell or sound the whistle. The jury might have inferred that, had he given warning by a blast of the whistle, this would have scared the team, and made it get off of the track; or the jury might have found that, had he been keeping a lookout, the engineer could have discovered the team on the track in time to have stopped the train, and to have avoided hitting it.

It follows that the judgment must be affirmed.