CASES

IN THE

SUPREME COURT

OF

ARKANSAS.

ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY v. RHODEN.

[93 Ark. 29, 123 S. W. 798.]

DOGS-Liability for Killing. Dogs are Personal Property, for the negligent killing of which a railway company is liable. (p. 76.) DOGS.-The Killing of a Dog by the Running of a Train is prima facie evidence of negligence on the part of the railroad company. (p. 76.)

DOGS-Right to Protection from Negligence.-There is no distinction between dogs and other property in respect to the right of the owner to recover for negligent injuries. He is entitled to have this species of property receive the care due to other species. (p. 76.)

DOGS. A Railroad Company Owes to the Owner of Dogs on its tracks the duty to keep a constant lookout for the protection of that character of property, which is required by section 6607 of Kirby's Digest. (p. 76.)

DOGS-Negligent Killing by Railway.-Where the engineer of a locomotive testifies that he first discovered a dog on the track when it was only one hundred feet in front of his engine, and that he could not stop the train in time to avoid killing the animal, but other witnesses testify that the dog ran in front of the engine for half a mile before being struck, there is sufficient testimony upon which to submit to the jury the question whether the engineer was keeping a constant lookout. (pp. 76, 77.)

DOGS.-It is the Duty of a Railroad Company to give a dog on the track the same care that is due to other species of property under similar circumstances. In this respect there is no distinction between a dog and other animals. (p. 77.)

DOGS. The Same Care That Would be Used by an ordinarily prudent man under similar circumstances in regard to other animals should be used in regard to a dog. (p. 77.)

DOGS Duty of Railroad.-The Fact That a Dog may be more alert and intelligent than other animals does not absolve a railroad company from using that care for its protection that an ordinarily prudent man would use in regard to other animals. (p. 77.)

Kinsworthy & Rhoton and J. H. Stevenson, for the appel

lant.

J. C. Ross, for the appellee.

30 FRAUENTHAL, J. This was an action brought by the plaintiff below, R. C. Rhoden, against the St. Louis, Iron Mountain and Southern Railway Company for the recovery of damages for the alleged negligent killing of a fine-blooded bird dog. The dog was killed about 12 o'clock on October 22, 1907, by one of defendant's fast mail trains. The testimony on the part of the plaintiff tended to prove that just after the train had passed Perla, a station on defendant's line of railroad, the dog was seen upon the railroad track a short distance in front of the train and trotting or running down the track in the same direction in which the train was moving. The dog continued to run in this manner in front of the running train for a distance of about one-half a mile, when it was overtaken by the train and killed. For this entire distance the track was straight, and the dog could readily have been seen by the employés in the cab of the engine. The employés did not give any alarm by whistle, and did not ring the bell, and did not open the cylinder cocks; and as one of the witnesses expressed it, the train "just came right on and hit the dog without doing anything."

The engineer testified that when he first noticed the dog it was running along by the side of the track, and then got on the track at a point about one hundred feet in front of the engine; that the train was running at the rate of fifty miles an hour, and that he could not have stopped the train in time to have avoided striking the dog. He stated that when he observed the dog he kicked open the cylinder cocks in order to frighten it from the track; that he did not blow the whistle or ring the bell because he thought that the opening of the cylinder cocks was the best method to frighten the animal from the track; that he did 31 not attempt to slacken the speed of the train because at the rate of speed that the train was moving he could not have prevented striking the dog.

On the part of the plaintiff, the court in effect instructed the jury that it was the duty of the defendant to keep a constant lookout for persons and property upon its tracks, and that if the dog was killed by reason of the failure to keep such constant lookout, the defendant would be liable. The following instruction was also given at the request of the plaintiff : "The court instructs the jury that it was the duty of the servants and agents of defendant in charge of the engine of said train to use ordinary care to avoid killing plaintiff's animal by resorting to the usual means of sounding the stock alarm, ringing the bell or opening the cylinder cocks to scare said animal off the track; and if you find that said servants failed to use ordinary care to frighten said animal off the track, and that such failure resulted in the killing of plaintiff's dog, then your verdict must be for the plaintiff."

At the request of the defendant the court in effect instructed the jury that the engineer in charge of the train was under no obligation to try to stop the train until he saw that the dog was in a place of danger and would be injured unless he did stop; and, after discovering the peril of the dog, if he did everything reasonably within his power to frighten the dog from the track, the plaintiff could not recover. It also gave to the jury at the request of the defendant the following instruction:

"5. If you believe from the evidence that the engineer in charge of defendant's train which struck plaintiff's dog was keeping a constant lookout for persons and property on the railroad track, and that, after he saw plaintiff's dog and became aware of its perilous situation, he did everything reasonably within his power to frighten it from the track, and that it was impossible for him to stop his train by the use of reasonable diligence in time to avoid striking said dog, then your verdict should be for the defendant."

The defendant asked the court to give to the jury the following instructions, which were refused:

"1. Under the pleadings and the proof in this case you will return a verdict for the defendant."

32 3. You are instructed that when the engineer in charge of defendant's train saw plaintiff's dog running along beside the railroad track, he had a right to presume that the dog would leave the track before being struck, and he was warranted in acting upon that belief. If you believe from the evidence that after he became aware of the dog's peril he did what he reasonably could to avoid striking it, he was not negligent, and your verdict should be for the defendant.

"4. You are instructed that the same rule does not apply in the case of dogs as in the case of livestock. A dog is an animal of superior intelligence, and possesses greater ability to avert injury; and the presumption is that he has the instinct and ability to get out of the way of danger, unless his freedom of action is interfered with by other circumstances at the time and place. On this account, the diligence and care which locomotive engineers owe to the owners of dogs is placed on the same footing with that of a man walking upon or near a railroad track apparently in possession of all his faculties, and the engineer would be warranted in acting upon the belief that the dog would be aware of the approaching danger, and would get out of the way in time to avoid injury." "6. There is no presumption of negligence on the part of the defendant from the fact of killing a dog.

"7. If you believe from the evidence that plaintiff's dog was killed while on defendant's track, you are instructed that plaintiff is not entitled to recover therefor, unless you further

find that defendant's engineer discovered the dog's peril, and thereafter injured her willfully, wantonly and recklessly.

The jury returned a verdict in favor of the plaintiff for fifty dollars, and the defendant prosecutes this appeal from the judgment entered thereon.

This court has held that dogs are personal property, for the negligent killing of which a railway company is liable. And, under the statute making all railroads responsible for all damages to persons and property done or caused by the running of trains (Kirby's Digest, sec. 6773), this court has declared that the killing of a dog by the running of a train was prima facie evidence of negligence on the part of the railroad company: St. Louis etc. Ry. Co. v. Stanfield, 63 Ark. 643, 40 S. W. 126, 37 L. R. A. 659; St. Louis etc. 33 Ry. Co. v. Philpot, 72 Ark. 23, 77 S. W. 901; El Dorado & B. Ry. Co. v. Knox, 90 Ark. 1, 134 Am. St. Rep. 17, 117 S. W. 779.

It will thus be seen that the right of property in dogs is fully recognized, and that for a wrongful injury to that species of property a right of recovery is given to the owner. In this regard there is no distinction made between dogs and other property, and therefore the owner thereof is entitled to have this species of property receive the same care that is due to other species of property. The railroad company owes to the owner of a dog the duty to keep the constant lookout for the protection of that character of property which is required. by section 6607 of Kirby's Digest, and is liable to such owner for any injury to such property caused by a negligent failure so to do. The court did not, therefore, commit error in instructing the jury to that effect. But the defendant urges that in this case there was no testimony showing that there was any neglect of any of its employés to keep such constant lookout. We think that there was testimony upon which to base such an instruction. The engineer testified that when he first observed the dog on the track it was only about one hundred feet in front of the engine, and that he did not see the dog on the track until then. But two witnesses on the part of plaintiff testified that the dog was running down the track in front of the engine for a distance of probably onehalf a mile. If the dog was on the track for that distance in front of the train and the engineer did not see it, then this was sufficient testimony upon which to submit to the jury the question as to whether or not the engineer was keeping a constant lookout.

It is claimed by the defendant that the dog is a very sagacious animal, exceedingly alert and active, and possesses greater ability to avoid injury than almost any other animal. It is urged, therefore, that the court should have instructed the jury to this effect, and should have given the above in

struction No. 4, asked for by the defendant. But we think that this instruction invades the province of the jury to determine for themselves questions of fact, and that it does not correctly state the degree of care that should be exercised to avoid injuring this character of property. The defendant was only responsible 34 for the negligent killing of the dog, and that negligence would arise from the omission to do something which a reasonably prudent man would have done under all the circumstances of the case, or the doing of something which under such circumstances such a man would not have done. The idea of negligence presupposes the existence of a duty to protect from injury and the failure to perform that duty, from which an injury results: Hot Springs R. R. Co. v. Newman, 36 Ark. 607; Fort Smith Oil Co. v. Slover, 58 Ark. 168, 24 S. W. 106.

This court has held that the killing of a dog by the running of a train is prima facie evidence of negligence on the part of the railroad company. This in effect makes it the duty of the railroad company to give to the dog the same care that is due to other species of property under similar circumstances. In this respect there is no distinction made between the dog and other animals. The same care that would be used by an ordinarily prudent man under similar circumstances in regard to other animals should be used in regard to the dog. The mere fact that the dog may be thought by many people to be more intelligent than other animals, and is also alert, would not absolve the railroad company from using that care in the protection of the dog. It owes the same duty to use the same character of care in protecting the dog from injury that it owes to other animals.

In the case of St. Louis etc. Ry. Co. v. Hauks, 78 Tex. 300, 14 S. W. 691, 11 L. R. A. 383, it is held that a railroad company is liable in damages for the killing by its engine of a dog which is trespassing on the railroad track if the exercise of ordinary prudence and care on the part of the engineer would have prevented the injury. In the case of Meisch v. Rochester Electric Ry. Co., 72 Hun, 604, 25 N. Y. Supp. 244, it was held that the employé of the company was not justified in running down a dog trespassing on the track if by reasonable diligence he could have discovered and averted the injury.

In the case of Citizens' Rapid Transit Co. v. Dew, 100 Tenn. 317, 66 Am. St. Rep. 754, 45 S. W. 790, 40 L. R. A. 518, it was held that the employé of the company could not rely upon the quickness and celerity of a dog in order to absolve it from the duty and care to prevent running over the dog; and that the company was liable for the killing of the 35 dog caused by the negligence of its servant in charge of the train.