St. Louis, Iron Mountain & Southern Railway Co. v. Campbell, 116 Ark. 119

St. Louis, Iron Mountain & Southern Railway Co. v. Campbell

116 Ark. 119 | Ark. | 1915

Kirby, J.,

(after stating the facts). It is contended by appellant that it had no knowledge that the cattle necessarily unloaded and collected at Alicia because of the injury to the car in which they were being shipped, were infected with the fever or carried the fever-producing tick, and that there is no evidence tending to show they -were brought from infected territory, nor sufficient to sustain the verdict, .and also that the court erred in giving-instruction numbered 2 for plaintiff.

In said instruction the court told the jury that if the railroad company had in charge a car of cattle from infected territory, which it caused ór permitted to be unloaded at Alicia, and that the cattle of plaintiff were infected with the fever tick and died as a result thereof, and that the infection was communicated to plaintiff’s cattle or to the range, and from the range to plaintiff’s cattle, by the unloading of the car of cattle in charge of the defendant railroad company, or in the driving of said cattle along the road, it should find for the plaintiff.

(1) The district cattle quarantine line of the State runs along the boundary line between Jackson and Lawrence counties, being the southboundary line of Lawrence and the north line of Jackson County. The wreck occurred in Jackson County below the quarantine line, and one of the cattle escaped from the car and was driven to the pen, and the others were carried across the line and unloaded above the line at Alicia in Lawrence County. It is unlawful for any railroad company carrying cattle from other States or Territories- below the quarantine line established by the United States Department of Agriculture or from below the district cattle quarantine line of this State to unload such cattle at any point in the State above the district cattle quarantine line, except such points as are designated by the officials in charge of the enforcement of the law establishing the cattle quarantine. Section 12, Act 409, Acts of 1907. This law also declares that all cattle above the district quarantine line bearing boopMlus anulatus ticks should be considered as affected with a contagious disease.

'Congress by Act of March 3, 1905, chapter 1496, 33 Stat. L. 1264, provided for the establishment of cattle quarantine districts by the Secretary of Agriculture and that cattle or live stock may be moved from a quarantine State or Territory or the quarantined portion of any State or Territory into any other State or Territory under and in compliance with the rules and regulations made 'by the Secretary of Agriculture in pursuance of the act authorizing the establishment of the quarantine district and making it unlawful to move or -allow to be moved any cattle from any quarantine district in any manner or under any conditions other than those prescribed by the -Secretary of Agriculture.

It is contended that the instruction is erroneous because it did not require the jury to find that the company knew or should have known that the cattle which it turned loose and unloaded at Alicia were infected and that the burden was upon appellees to show that appellant had such knowledge or notice of such facts as would make it chargeable with knowledge that the cattle unloaded were infected and liable to communicate the disease within the principle announced in Railway Co. v. Goolsby, 58 Ark. 401.

There is no allegation herein as in that ease that the company knew or had knowledge of -such facts as would make it chargeable with knowledge that the cattle were infected, the allegation being only that the railway com-, pany brought infected cattle into Alicia and unloaded them there and that the infection and disease was thereby communicated to plaintiff’s cattle.

(2) The national law prohibits the -moving and.carrying of cattle from a quarantine State, Territory or district into any other State or Territory, except in compliance with the regulations prescribed by the Secretary of Agriculture, and the State makes it unlawful for a railroad company carrying cattle from any other States or Territories below the quarantine line established by the United States Department of Agriculture or from below-the district cattle quarantine line of the State to unload such cattle at any point in Arkansas above the said district quarantine line, except in accordance with the prescribed regulations. The railroad company is bound to comply with the requirements of -both these laws in the carrying and unloading of cattle which dispenses with any necessity for charging it with knowledge that the cattle brought from below the quarantine line and unloaded above it were infected or infested with the fever tick, and liable to communicate the disease if they were in fact so infected. And if the cattle were carried and unloaded in accordance with the regulations prescribed by the officials charged with the enforcement of these laws, it devolved upon the railroad company to show that fact in justification of its conduct in carrying cattle from below and unloading them above the quarantine line, which would otherwise be unlawful.

(3) The majority of the court, however, is of opinion that there is not sufficient testimony to show that the cattle came from infected territory and communicated the fever, there being nothing tending to show such facts further than that a witness heard the roadmáster say they were Southern cattle and another that they must be, from the peculiar brands upon them. The witness who saw the ticks upon the cattle that were unloaded did not know whether they were fever-producing ticks or not, and his description of their color did not indicate that they were. If the railroad company brought cattle from infected territory or cattle bearing ticks that produced the disease among the plaintiff’s cattle from which they died, it would of course be liable for the damages, but the mere fact that the fever developed among the cattle about Alicia after the car of cattle was unloaded, with further testimony that for some time prior thereto there had been no infection nor fever among the cattle in and around the place, was not sufficient to show that said cattle were infected or from infected territory and communicated the disease to the cattle of plaintiffs. The station at Alicia is within a short distance of the district cattle quarantine line and it is equally as probable that the disease from which plaintiff’s cattle died could have been communicated by cattle or ticks coming’ from below the quarantine line, which was hard by said station.

For the error designated the judgment is reversed and the canse remanded for a new trial.