378 LUSK ET AL., RECEIVERS, V. BLEVINS. [130 LUSK ET AL., RECEIVERS ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY V. BLEVINS. Opinion delivered October 1, 1917. RAILROADS—KILLING STOCK—NOTICE TO STATION AGENT.—Under Act of 1907, p. 144, and Act of 1909, P. 778, notice of the killing of stock by a railroad train and presentation of the claim, may be made to a station agent. Appeal from Crawford Circuit Court ; James C och-rani, Judge ; affirmed. W. F. Evans and B. R. Davidson, for appellant. 1. A constant lookout was kept. The injury was unavoidable and the verdict is contrary to all principles of justice. 39 Ark. 413 ; 40 Id. 336 ; 41 Id. 161 ; 53 Id. 96; 67 Id. 514. 2. No foundation was laid for the introduction of the letter. 94 Ark. 158-165; 93 Id. 179 ; 57 Id. 402; 23 Id. 131. 3. No claim was ever presented. Acts 1909, 779, 4; 104 Ark. 500 ; 233 U. S: 325. 4. The act of 1907 . is unconstitutional. 234 U. S. 354; 233 Id. 325. 5. There was no proof as to a reasonable attorney's fee, nor that the mules were killed in Crawford County. The venue was not proven and this is jurisdictional. 67 Ark. 512 ; 72 Id. 376; 70 Id. 346 ; 55 Id. 281 ; 38 Id. 205. 6. The instructions were erroneous. 62 Ark. 182 ; 64 Id. 236; 93 Id. 24-27 ; 48 Id. 366-370. Starbird & Starbird, for appellee. 1. The railroad was clearly liable. 75 Ark. 560. 2. All objections were waived as to testimony except as to competency and relevancy by a general objection. 116 Ark. 307; 113 Id. 296; 60 Id. 333 ; lb. 550. 3. There is no error in the instructions. 80 Ark. 284 ; 75 Id. 61 ; .37 Id. 562 ; 41 Id. 161. McCULLOCH, C. J. The plaintiff, N. E. Blevins, sued the receivers of the St. Louis & San Francisco Railroad Company to recover double damages and attorneys'
.ARK.] LUSK ET AL., RECEIVERS, V. BLVEINS. 379 fees on account of the killing of two mules, the property of plaintiff, run over by a passenger train operated by the receivers. The value of the mules is alleged to be the sum of $225, and it is also alleged in the complaint that plaintiff demanded the payment of that sum and that payment was refused. On the trial of the cause the jury returned a verdict in favor of plaintiff for the sum of $450, double damages, and $50 attorneys' fee. The killing of the stock occurred at night near the station of Mountainburg, in Crawford County, Arkansas. Plaintiff owned the land through which the railroad runs and cultivated a corn crop in the field. He also had a wooded pasture adjoining the field of corn, but on the night in question the gate between the two fields was left open and the mules strayed into the corn field through which the railroad runs. When the passenger train came along the mules ran out of the corn field, which extended up to the edge of the right-of-way, and went upon the track. The evidence adduced by the plaintiff tended to show that the mules ran down the track ahead of the approaching train a considerable distance, a part of the way running along what the witness termed the "shoulder " of the dump, and the balance of the way along the track, before being struck by the engine and killed. The engineer and fireman testified that the mules were struck by the engine as soon as they came on the track—that they saw the mules running out of the corn field toward the track and gave the signal, but that it was impossible for them to stop the train after the mules came on the track. There was, therefore, a conflict in the testimony concerning the circumstances under which the mules were killed and it was a question for the jury to determine whether or not the evidence was sufficient to overcome the presumption of negligence. We think the evidence was sufficient to sustain the verdict. The evidence was likewise sufficient to sustain the verdict as to the amount of damages. It is insisted that the judgment should be reversed for the reason that there is no proof of the venue so as
880 LUSK ET AL:, RECEIVERS; v. BLEVINS. [130 , . to establish the' ' jurisdicdon- of the eourt. 'The:Ortiplaint contained , an"allegatiori • that the killing O . -the Mules od-curred in Cr g iVfOrd : • COUrity, and there Was jib denial of that allegatiOn in the anSWer. TherefOre, the question of insnffidieqy df the eVidende ,'On that isSte IS not raiSed: 'It alsii fiSiSted that thei.e Nivas 'ii6:-',13ioof 'of the aniOunt deMaiided in . adan . e e Of , s . 1 n , it sO hifo . entitle plain- tiff to recover double dainages under the statUte, but we find that there Was an allegation 'in the cOiriplaint as to the anionnt deinanded and thete Was 'n6 'denial in the' . an-Over. The answer *tains' a denial aS to'the allegation that a deMarid wa g Made, but there iS nO denial to the siim demanded; arid the proof of • Plairitiff . iS sUfficient to show' that 'the]e Was a 'dethand Made fOr'pa3#érit,,-al-thongh it l ig riot stated in' the testimony' what the 'actUal surn demanded . WaS.. Plaintiff testified thatle lodged his Claim With the statioil'agent at Mountainbutg ; 'that the agerit proMiSed to forWärd the Sathe and thereafter the daina' agent' 'cartie along' arid loOk his stateinent concerning the and the - eircuniStanCes attending the killing of hiS i's thtied1 that'the ,statiOn ageritWas'nOt the prOp'er person! tO Whom a ntifice of aiilidutST'houlci have been'giVerr,and that the coutt .;eii'dd in aildiving-the-plaintiff, oVer the' Objctibil Of 'defendant,' tO'leStify'donCerning the 'deli-Very' of the:' nOtiCe Of 'claim' to : the Statidri 'Agent. The Starute'Of thiS State'linder Which donble f datilages for kiithig-:-Of 'sib& 'recoiker -able , Indfelf iird-Vide's that-the failtre 6f' a f railWay r coniPany . ' i"-after 'ribtiCe is serVed, On. 'Stich railroad loiuCY ONVriree 'Shalt entitle the Owner 'td reeOVer'daible 'darilages arid'a reasoriable"attorneys ' f e'eyWitliOnt Speeifying • the' nianner -in' Which the notic'e shall 'be given. **ActS"of '1007, page:144. •A later statute , prdVides"that "perSOns, firmS, oriebtporatiOns Operating any' railrOad Within this , stawgh-o- bet required to ondooy 6ne 'Oeniore claim agents, WhOse' drity-it shall be to -Visit all regular -stationS. 'upon their 'Said,line§'Where notice has been given to the agent of said company at said station, that' any- kind of Stock has been killed by the operation of said rOad, as often as on0e every thirty days, at
Atm.] 881 'Sh'alf take )3p the mati4 of s s'eltiginerit killing Of "AiiistOek with the owner thereof with a vieW..to making final settlement for said stock,and_paying forp-s GARP„of-,1909i,page 778. When the two.,statutesareread together it is,;clear that ;the :istation .r agent is:constituted, the..agent.of,the doinpany for the- pUrpos6 ;of , receiving notice -from the owner of the killed L orl inhired stdck and-transmitting the g aine fa' the' claim agent It was, therefdre,' . proper fOr the:ct oiirt"04amif evidence offeed brthe Plaintiff to the effect that" the claim or notice had„been . presented to the station agent. The evidence shows that pursuant to thatnotiCe the elaith ageiThappeafed and t6niefed into negotiations with plaintiff for a settleinefit. - Counsel for defendants . „attack the validity of the statute authorizing a -recovery, or dOUble„damages, and attorneys' f:ees, but,thi.§ court,haS i npheld the Validity: of the statute.- '.Kentsas Ci0i . Co. v.:Aiklerson,, 104 "Ark. ,506. ThiS conri Constrned the statnte tO allOw,such recOV- ery only in case th e ,. sum " ,einan" e is. no in excess of the suni awarded bythe Jury, and , the'SSUpreme C . ourt of the Vnited States s . u ):. S ta " ined - the' 4lidity - of the sfatilte:upon that intermtatiou` Of, itKa 1 n .• s . s.;git ' y So. 10. Co v Ancter SOA-, 23 U S 25 - There are other assignment's:of error which.are not considered Of surffiCient" inaPatance.fO discuss The case * ,..enti3O;_, the jnry 'n.PolfliCOrr:ekt,".i0,trn'eti_Oni:14.djiAlice;evi- denc _ e . was..SUfficient to sustain tlie verdict:', Judgthent affir e m d-IrJ ,1 f. i•;,'10:71
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.