As stated in the opinion by the majority, the question for decision is whether the undisputed testimony overcomes the presumption of negligence arising from the fact that the train had struck the dog.
It is true, as stated in the opinion, that Nelson 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, but it is perfectly plain from his own testimony that he did not see the dog run under, and that he could not, according to his own testimony, know whether the dog ran in front of the caboose and was killed or ran under the side. He says: "I saw the dog standing there as we started to pass, but was not looking at the dog when he started under." The dog was standing between the tracks four or five feet from the track on which this train was operated; was standing there when the train started. This witness also says that he did not stop to pay any particular attention to the dog. It appears from this witness' testimony that when he started the train up he saw the dog within approximately four feet of the track; that he did not look at it any more and paid no further attention to it. There is no testimony that he gave any alarm or did anything to prevent killing the dog or to frighten it away. If the brakeman told the truth, after seeing the dog, he paid no further attention *Page 252 to it; did not sound any alarm; did not know whether the dog had started across the track or not, and did not testify to having done anything or having taken any precaution at all to avoid injuring the dog or to see whether it was going on to the track.
I agree with the statement in the opinion of the majority that the jury has no right to arbitrarily disregard the testimony of any witness, but I do not agree that it was arbitrary for the jury to disregard Nelson's testimony. There is nothing in the record to show that they disregarded it, either arbitrarily or otherwise. If everything Nelson told was true, it is not, in my judgment, sufficient to overcome the statutory presumption of negligence.
It is stated in the majority opinion that no fact or circumstance was offered in evidence which contradicts or conflicts with Nelson's testimony. Nelson's testimony does not undertake to show that any care was exercised at all, and while it is true that we have many times held that the jury cannot arbitrarily cast aside the testimony of any witness, it is also a well-established rule that the credibility of a witness and the weight to be given to his testimony is a question for the jury and not for the court.
In reversing this case, I think the court has passed not only on the credibility of the witness, but the weight to be given to his testimony. The majority opinion said that Nelson was keeping a lookout and keeping it efficiently. On the contrary, his own testimony shows that, if he saw the dog there, he paid no further attention to it, and if he looked out at all, there is no evidence tending to prove that he did. He doesn't say so, and no other witness testifies with reference to this matter. If he had been keeping a lookout, he would have been bound to see the dog when it started across the track. It may be that the brakeman could not have avoided killing the dog, but the testimony does not show this, and I think in this case that, the credibility of the witnesses and the weight to be given to his testimony being for the jury, the jury had a right to *Page 253 determine whether the presumption of negligence was overcome by the testimony of the brakeman, who himself said that he paid no attention to the dog after he saw it between the tracks. Mo. Pac. Ry. Co. v. Edwards, 178 Ark. 732,14 S.W.2d 230.
I therefore think that the case should be affirmed.
Justice HUMPHREYS agrees with me in this conclusion.