Arkansas Tel. Co. v. Ratteree
| Decision Date | 18 March 1893 |
| Citation | 21 S.W. 1059 |
| Parties | ARKANSAS TEL. CO. v. RATTEREE. |
| Court | Arkansas Supreme Court |
Appeal from circuit court. Sebastian county; Edgar E. Bryant, Judge.
Action by James R. Ratteree against the Arkansas Telephone Company for personal injuries alleged to have been caused by defendant's negligence. At the time of accident plaintiff was in his wagon in a street in the city of Ft. Worth. He was not on the seat of the wagon, but there was a deaf and dumb boy on the seat. A wire belonging to the defendant fell, causing the horse to start suddenly, which threw plaintiff down and injured him. Plaintiff obtained judgment. Defendant appeals. Affirmed.
Clayton, Brizzolara & Forrester, for appellant. R. T. Kerr, for appellee.
There was evidence to support the verdict of the jury. The damages were not excessive. Was there error in the instructions given? Taken together, they declare the law applicable to the case. The court is of the opinion that the third should have been qualified by a statement that, if the jury found the facts referred to in the instruction, and they were unexplained by evidence showing that the falling of the wire was unavoidable by the use of proper care on the part of the appellant, it made a prima facie case of negligence against it. The rule is that the happening of the accident from which injury results, where the occurrence is not out of the usual course, is prima facie evidence of negligence, which throws the burden upon the appellant of showing that the occurrence was unavoidable. The maxim "res ipsa loquitur" applies to such a case. Railroad Co. v. Hopkins, 54 Ark. 209, 15 S. W. Rep. 610; Railroad Co. v. Mitchell, (Ark.) 21 S. W. Rep. 883. But as there was no attempt by the appellant to show that the falling of the wire was unavoidable, the instruction was not prejudicial to the appellant. For such an error the court will not reverse.
As to the fifth instruction, refused by the court, there was no evidence upon which to base it. At the time the wire fell and caused the horse to start the appellee was in his wagon, and the deaf-mute boy was on the seat of the wagon. We are of the opinion that the question whether at the time of the accident the appellee had left his horse standing in the street without a competent person in charge of him was a question of fact properly left to the jury under the instructions of the court. On the evidence in this case it could hardly be said that the appellee could have...
To continue reading
Request your trial