Brigham v. Dardanelle & R. Ry. Co.

• Decision Date: 01 July 1912
• Citation: 149 S.W. 90
• Parties: BRIGHAM v. DARDANELLE & R. RY. CO.
• Court: Arkansas Supreme Court

149 S.W. 90

BRIGHAM v. DARDANELLE & R. RY. CO.

Supreme Court of Arkansas.

July 1, 1912.

Appeal from Circuit Court, Pope County; Hugh Basham, Judge.

Action by Lizzie Brigham, administratrix, against the Dardanelle & Russellville Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

J. T. Bullock and R. B. Wilson, both of Russellville, for appellant. Brooks & Hays, of Russellville, and J. W. House & J. W. House, Jr., of Little Rock, for appellee.

KIRBY, J.

The appeal herein comes from a directed verdict. It is the second appeal of this case, which is sufficiently stated in the opinion on the first appeal in 98 Ark. 178, 135 S. W. 869. Upon the trial anew, the court directed a verdict in favor of appellee, and its action is complained of as error by appellant.

In deciding the question whether there is sufficient testimony to support a verdict in favor of the party against whom the court directed one, the rule is that that view of the testimony most favorable to the losing party shall be accepted and the testimony in his favor given its strongest probative force, and when there is a conflict in the testimony on the material points at issue, or when the testimony is such that different minds may reasonably draw different conclusions therefrom, it is the duty of the trial court to submit the issues to the jury for determination. Crawford v. Sawyer-Austin Lumber Co., 91 Ark. 340, 121 S. W. 286; Railway v. Coleman, 97 Ark. 442, 135 S. W. 338; Williams v. St. L. & S. F. Ry. Co., 147 S. W. 93. The question of sufficiency of the evidence is one of law, and it is only when the facts are undisputed and when different minds cannot draw different conclusions therefrom that it becomes the court's duty to direct the verdict. Railway v. Coleman, supra; Catlett v. Railway, 57 Ark. 461, 21 S. W. 1062, 38 Am. St. Rep. 254. Upon remanding the case, the court said: "The only theory upon which the appellee could recover damages of appellant is the one that the engineer, Shuttle, was guilty of negligence in failing to give a stop signal as soon as the Iron Mountain engine started down the track towards him. The fireman was at the time, according to some of the testimony, at work, shoveling coal, and did not see the approaching engine. The duty, therefore, of avoiding the injury, devolved entirely upon the engineer; and, if he discovered the approaching engine in time to have avoided a collision, or in time to have warned the fireman so that he could escape before the collision, and failed in his duty, then appellant is responsible for his negligence in that respect. It appears from the great preponderance of the evidence that, as soon as the engineer realized that the other engine was not coming to the house track, he gave a stop signal, and did all that he could reasonably do to avoid a collision. Still, the evidence shows that, when the Iron Mountain engine started, it gave a start signal, which meant that it was about to resume its journey, and there was room to find that appellant's engineer should have taken cognizance of the fact that there was danger of a collision, and that the trainmen on the other engine were...