68 Ark. 289 | Ark. | 1900
This is an appeal from a judgment against the railway company for damages caused by its train striking two mules belonging to plaintiff. The first contention is that the circuit court had no jurisdiction, for the reason that the complaint does not ■ allege that the injury occurred in the county where the action was brought. But the complaint alleges that the injury occurred on the White River branch of the defendant’s road near the town of Newark. The evidence shows that the train at the time of the accident was going from Batesville to Newport, and the • accident took ■ place west of Newark, as the train was approaching 'that place from Bates-ville, and so close to the town that persons at the station saw the mules at the time they were struck by the train. Now, it is a matter of general information that Newark, a town of several hundred inhabitants, with express and post offices, is located in Independence county, on the line of defendant’s road between Batesville and Newport. The courts will take judicial notice- of the fact that it is located in Independence county, and that the circuit court of that county has jurisdiction to try an action for damages for injuries occurring there. Central Railroad & Banking Co. v. Gamble, 77 Ga. 584.
The contention that the court erred in instructing the jury as to the lookout to be kept by employees in charge of a train must be overruled. The engineer, according to his own testimony, saw the mules when they were five hundred yards away from the approaching train. They were at that time within fifty feet of the track, and, having discovered them, the engineer was bound to use ordinary care to avoid injuring them. The question was not whether he kept a proper lookout, but whether he used due care after, he discovered the mules near ■the track. While the instruction as to the duty of the employee to keep a lookout may be abstract, we cannot see that it could in any way prejudice the rights of appellants.
On the facts the case is somewhat doubtful, but our conclusion is that the judgment should be affirmed.