(after stating the facts.) It is evident that, at the time the mule was shot, it was of no value. The appellee himself must have been of this opinion, for,, when some one said in his presence that it was “ suffering pain and ought to be shot,” he made no objection. So we take it that he was not injured in any way by this shooting. His complaint alleged that the mule was killed by the locomotive and cars of the railway company. The answer of the railway company denied this allegation. The question before the jury was whether or not the circumstances in proof were sufficient to prove that the injuries to the mule were caused by defendant in the operation of its trains, and we need only consider whether the instructions of the court touching this question were correct or not.
It has been several times held by this court that the mere fact that an animal is found on the right of way of a railway company, injured, raises no presumption of law that its injuries were occasioned by the running of the trains. In such a case, to raise the statutory presumption of negligence against the company, there must be evidence to show that the injury was occasioned by the trains of the company. St. Louis etc., Co. v. Hagan, 42 Ark. 126; Railway Co. v. Sageley, 56 Ark. 551.
When an .animal, found wounded on the right of way of a railway company, is. afterwards shot by an employee of such company, this raises no presumption of law that the animal was wounded by the trains of the company. If, in any event, it could be said that such shooting was competent to go to the jury as a circumstance tending to throw light on the question of what was the cause of the injury to the mule, still, it would not be proper for the court to tell the jury that such an act shifted the burden of proof from the plaintiff to the defendant; for, even if competent, it would only be a circumstance for the jury to consider in connection with the other circumstances in the case. But there is nothing to show that, in shooting the mule, the section hand was acting as the agent of the railroad company. So far as the proof discloses, this foreman and his men had no power to affect the railway company by their acts or admissions in regard to the injury to the mule. It was not within the scope of their apparent authority to do so. We think that the shooting of this mule had no proper bearing on the question of what was the cause of the original injury to it, and that the court erred in so instructing the jury. The judgment is therefore reversed, and the cause remanded for a new trial.
Bunn, C. J., being absent, did not participate.