This appeal is from a judgment in appellee's favor for the value of a dog which was killed by one of appellant's trains. No witness who testified on behalf of appellee saw the dog struck, but the testimony on appellee's behalf was sufficient to support the finding that the dog had been run over by a train, and appellee relied upon the statutory presumption of negligence arising from the fact that a train had struck the dog. The question for decision is therefore whether *Page 249 the undisputed testimony overcomes this presumption. We think it does.
The only witness who knew how the train came to strike the dog was B. H. Nelson, who testified as follows: Witness was the rear brakeman on the local freight train which struck the dog. About 8 p.m. on January 17 the train was standing on the main line track, when witness, who was on the rear end of the caboose, gave a signal for the train to back up. Witness testified that he "took the engine and caboose and started backing up, and saw the dog was standing between the tracks, and, as the caboose was passing the dog, it ran under the rear end, and was run over." The dog was about four or five feet from the caboose when it started across the track under the caboose. Witness did not see the dog as it started across the track, but "saw the dog standing there as we started to pass, but was not looking at the dog when he started under. When I heard the dog yelp I looked, and saw it kick back out from under the train." There was nothing he could have done, or that could have been done by the train crew or engine crew, that would have prevented the injury to the dog, as the caboose was being backed up in the yard, and the dog ran under the caboose from the side, and was run over. No witness disputed or contradicted this testimony or testified to any fact which even tended to contradict the brakeman's testimony or to afford any just ground for the inference that the brakeman had not told the truth as to the manner in which the dog was injured.
We have said many times that the jury is the judge of the weight of the testimony and the credibility of the witnesses; but we have also said that the jury has no right to arbitrarily disregard the testimony of any witness, and we think it was arbitrary for the jury to disregard Nelson's testimony. It is consistent in its entirety, and no fact or circumstance was offered in evidence which contradicts it or conflicts with it. It was therefore arbitrary for the jury to cast this testimony *Page 250 aside. Davis v. Porter, 153 Ark. 375, 240 S.W. 1077; Kansas City Sou. Ry. Co. v. Griffin, 141 Ark. 625,217 S.W. 801; Kansas City Sou. Ry. Co. v. Whitley, 139 Ark. 255,213 S.W. 369; Steptoe v. St. Louis, I. M. Southern Ry. Co., 119 Ark. 75, 177 S.W. 417; St. Louis, I. M. Sou. Ry. Co. v. Belcher, 117 Ark. 638, 175 S.W. 418; St. Louis, I. M. Sou. Ry. Co. v. Spillers, 117 Ark. 483,175 S.W. 517; St. Louis, I. M. Sou. Ry. Co. v. Humbert,101 Ark. 532, 142 S.W. 1122; St. Louis, I. M. Sou. Ry. Co. v. Ramsey, 96 Ark. 37, 131 S.W. 44, Ann. Cas. 1912B, 383; Paragould M. Ry. Co. v. Smith, 93 Ark. 224,124 S.W. 776; St. Louis S.W. Ry. Co. v. O'Hare, 89 Ark. 120,115 S.W. 942; St. Louis S. F. Ry. Co. v. Minor, 85 Ark. 121,107 S.W. 171; Kansas City Sou. Ry. Co. v. Lewis,80 Ark. 396, 97 S.W. 56; Kansas City Sou. Ry. Co. v. Cash,80 Ark. 284, 96 S.W. 1062; Lane v. Kansas City So. Ry. Co., 78 Ark. 234, 95 S.W. 460; St. Louis, I. M. So. Ry. Co. v. Landers, 67 Ark. 514, 55 S.W. 940; Kansas City, F. S. M. Ry. Co. v. King, 66 Ark. 439, 51 S.W. 319; Railway v. Shoecraft, 53 Ark. 96, 13 S.W. 422.
According to Nelson's testimony, he saw the dog in a place of safety between the tracks and four or five feet from the track on which the caboose was standing. Nelson saw the dog standing there as the engine and caboose started backing up. He was keeping a lookout, and was keeping it efficiently; indeed, he was the only person on the train who could have kept it. Witness did not see the dog start across the track, but he heard it yelp, and, as he looked, he saw it "kick back out from under the train."
The case is governed by that of Nelson v. Missouri Pacific R. R. Co., 172 Ark. 1053, 292 S.W. 120. In that case a dog ran, according to the finding of the jury, under a train after the engine had passed it. In that case the plaintiff had requested the court to charge the jury that, if the dog was killed by the train, it was immaterial as to what part of the train struck the dog. In affirming the action of the trial court in refusing *Page 251 this instruction we said: "Under these circumstances (that of a dog running under a moving train) it would not do to say that it was immaterial that cars following the engine killed it, for no lookout, however constant or effective, could have prevented the dog from running under the train. To hold otherwise would render a railroad company liable for any animal killed, regardless of the circumstances under which it was killed, and the law has never been so declared."
The judgment must therefore be reversed, and the cause will be remanded for a new trial.