The plaintiff was the messenger of the Southern Express Company engaged in conducting the express company’s business on the line of the appellants’ railway. The car provided by the railway for the use of the express company was derailed while the plaintiff was discharging his duties as express messenger, and he was injured in the wreck which followed. He recovered judgment for the personal injury, and it is argued by the appellants that his relation to the company does not warrant a recovery.
i. Liability express mes-
It is true there was no express contract between the plaintiff and the railway company; but as the railway undertook to carry him, it was bound to use every reasonable precaution to carry him safely. He could recover, therefore, in tort, just as any passenger may, for the violation of this general duty. All the cases upon this and analogous questions are to that effect. Thompson on Carriers, p. 45, sec. 5; Patterson’s Railway Ac. Law, sec. 222; 2 Wood, Railway, p. 1042 and n. 3; Yeomans v. Navigation Co. 44 Cal. 71 ; Penn. Co. v. Woodworth, 26 Ohio St. 585; Brewer v. Railway, 124 N. Y. 59; Seybolt v. Ry. 95 id. 562; Blair v. Ry. 66 id. 313; Gulf, etc. Railway v. Wilson, 15 S. W. Rep. (Tex.), 280.
% Evidence held to establish negligence.
The testimony on behalf of the plaintiff tended to show that two causes conduced to the wreck, viz., a bull on the track and a rotten bridge.
The undisputed facts were that a bull came' upon the track near the bridge, the engine ran over the animal, the tender broke loose from the express car, the latter went through the bridge, and the plaintiff was injured by the fall of the car.
Those facts establish a prima facie case for recovery in the plaintiff’s favor, for the accident would not have happened, ordinarily, had the track been safe and the train operated with care. Seybolt v. Ry. 95 N. Y. sup.; Railway Co. v. Hopkins, 54 Ark. 209 ; St. Louis, etc. R. Co. v. Harper, 44 id. 524.
To overcome the- case thus made, the railway points to testimony introduced by it tending to show that the bridge was in sound condition, and that the bull came upon the track without the knowledge of the company’s employees. This testimony is contradictory of that of the plaintiff, but it does not extirpate it. If it could be conceded, however, that the jury was bound to find that the bridge was safe, the plaintiff’s prima facie case would not be overcome, because the railway did not show that the company; or its servants in charge of the train, had exercised due care to keep the animal off the track or to prevent a collision with it. It is no answer for the railway to prove simply that the animal came there without its knowledge.
3. Duty of railway toward passenger.
In this State it is the general custom to permit cattle to run at large. It is apparent to those who operate railroads that roaming cattle are a constant menace to-the safety of an unguarded track. The railway’s obligation, to every one whom it undertakes to carry in the relation of a passenger, is that it will take every reasonable precaution to avert injury to his person, whether from collision with cattle or from other danger which it has reason to apprehend. The omission of any reasonable precaution to effect that end is negligence. Arkansas Midland Railway v. Canman, 52 Ark. 517.
This obligation requires of the employees in charge of trains faithful watchfulness to prevent accidents by collision with cattle, and it requires the company to keep a clear right of way to afford them the facility of performing that duty. If these or other precautions are insufficient to guard against the danger, .and a fence will render the track safe from the intrusion of cattle, the company’s obligation demands the more effective precaution. “ If the want of a proper fence makes the railway unsafe, and an accident happens to a passenger in consequence, the company are responsible to him, although they are under no obligation to the adjacent (land) owner,” or the owner of cattle, to fence the track., Buxton v. N. E. Ry., 3 L. R. Q. B. 549 ; Lackawanna, etc., Ry. v. Chenewith, 52 Pa. St. 382 ; Gulf, etc., Railway v. Wilson, 15 S. W. Rep. sup.; Cornwall v. Sullivan Railroad, 8 Fost. (N. H.) 161, 169.
Now the testimony, considered in its strongest bearing for the railway, did not warrant the ■ jury in finding that the company had taken the necessary precaution to prevent collision with cattle.
There is' nothing tending to prove that the track could not have been made safe by the use of a fence at the point where the bull entered upon the right of way ; and the uncontradicted statement of the fireman shows that he did not exercise due care in maintaining q. lookout. He testifies that he quit his watch just as the train entered upon the curve in the road where the accident happened. He knew that the engineer could not keep watch upon both sides of the curve at that point, and common prudence demanded that he should remain at his post until his companion could see both sides of the track from his place in the cab. The curve was short, and the duty which he turned to perform was not imperative at that moment, and it could have been performed upon the straight track before reaching or after passing the curve. If the fireman had kept a lookout, the presumption is he would have discovered the animal in time to avert the accident, unless prevented by the trees and bushes which, some of the witnesses say, grew near the track at that point. But if prevented by that cause, it would- have offered no excuse for the company, as before stated.
4. ^Vlien •erroneous instruction not prejudicial.
The appellants argue that the charge of the court imposes a higher degree of care upon the railway, in its effort to avoid danger to passengers, than the law justifies. The instruction mainly complained of * is couched in language copied- from an opinion of this court. But if we should concede that its language is too rigid for application in this case, the verdict should not be disturbed because the undisputed facts establish a state of case upon which the plaintiff should recover.
5. Amending' bill of exceptions by affidavits of by-standers.
The appellants attempt to add to the bill of exceptions allowed by the trial judge by presenting certificates filed with the circuit clerk and affidavits attesting the truth of his additional exceptions. But their effort must prove futile, because the record fails to show that the omitted exceptions were presented to the judge for allowance and rejected by him. It is only where the exceptions are presented to the judge for allowance and are rejected by him that the statute permits them to be preserved by the certificate and affidavits of bystanders. Mansf. Dig., secs. 5160-1.
When the judge rejects any part of the bill of exceptions presented to him for allowance by either party, be should certify that fact, if the aggrieved party desires, in the bill of exceptions. The foundation is then laid for preserving the excluded exceptions by the aid of bystanders. If the judge refuses to certify this disallowance of any matter, it is time enough then to attempt to bring that fact upon the record by the bystanders. For aught that appears here, the judge allowed the bill of exceptions, presented to him by the appellant. There is no intimation to the contrary in the bill of exceptions, the certificates or affidavits. We .cannot extend our consideration therefore beyond the exceptions contained in the bill allowed by the judge.
Let the judgment be affirmed.
The portion of charge of the lower court above referred to was copied from the opinion in the case of George v. St. L., I. M. & S. Ry. Co. 34 Ark 625., and is as follows :
“The jury are instructed that passenger carriers by railway are bound to the utmost diligence which human skill and foresight can effect, and that if any injury occurs by reason of the slightest omission in regard to the highest perfection of all the appliances of transportation, or the mode of management at the time the damage occurs, the carrier is responsible.”