78 Ark. 234 | Ark. | 1906
(after stating the facts.) There was no error in the court’s ruling. The cases of St. Louis S. W. Ry. Co. v. Costello, 68 Ark. 32, and St. Louis & S. F. Rd. Co. v. Carlisle, 75 Ark. 560, are not applicable. In those cases the statutory presumption of negligence arising from the killing was not overcome by the proof. On the contrary, the evidence in the latter case tended affirmatively to show negligence on the part of the railway company. The case at bar is ruled by the principle announced in St. Louis, I. M. & S. Ry. Co. v. Landers, 67 Ark. 514.
Here the statutory presumption of negligence is fully overcome by the testimony of the engineer, which is consistent, reasonable and uncontradicted in essential points. Indeed, it is corroborated by the testimony of appellant's witness. The engineer and fireman did not fail to keep a lookout. They saw the animals feeding on the right of way thirty or forty feet from the track. But the animals had their heads turned away from the track, and seemed to be going from it, as long as they were in the line of vision of the engineer, who continued to observe them, and not until they had passed out of his line of vision did they become confused and suddenly turned toward the railway track. Whereupon the fireman notified the engineer. Then he did everything in his power that could be done to avoid injuring them. Unless the testimony of appellee's witness could be arbitrarily disregarded, which can not be done, we do not see how the court could have ruled otherwise. St. Louis, I. M. & S. Ry. Co. v. Landers, supra, and cases cited. It was not the. duty of the engineer to slow down or take other precautionary measures for the protection of the animals until their presence upon the track or in proximity thereto indicated that they were in danger.
Affirm.
