Choctaw, Oklahoma & Gulf Railway Company v. Donovan

• Decision Date: 03 January 1903
• Citation: 72 S.W. 48,71 Ark. 197
• Parties: CHOCTAW, OKLAHOMA & GULF RAILWAY COMPANY v. DONOVAN
• Court: Arkansas Supreme Court

72 S.W. 48

71 Ark. 197

CHOCTAW, OKLAHOMA & GULF RAILWAY COMPANY v. DONOVAN

Supreme Court of Arkansas

January 3, 1903

Appeal from Prairie Circuit Court GEO. M. CHAPLINE, Judge.

Reversed.

Judgment reversed and cause remanded for new trial.

J. W McLoud and E. B. Pierce, for appellant.

The court erred in denying appellant's motion to postpone the trial. 67 Ark. 142; 66 Ark. 612; 55 Ark. 567; 57 Ark. 60.

J. H Harrod, for appellee.

The granting of a motion for new trial on the ground of surprise rests in the discretion of the trial court; and its ruling will not be disturbed, unless clearly erroneous. 34 Ark. 659.

OPINION

BUNN C. J.

This is a suit for $ 2,500 damages alleged to have been done to the plaintiff by the negligence of an employee of the defendant. This was denied in the defendant's answer. Trial, and verdict for plaintiff for $ 400.

The complaint recites, among other things, "That, on January 11th, 1900, plaintiff was working for the defendant in construction of track work, engaged in loading rock on a flat car. That plaintiff was working under the direction of one Patton, defendant's foreman, who had authority to employ and discharge men in said service, and the car, on which plaintiff was loading rock, was part of a construction train, and the train was moved under the direction of said foreman, and was under his control. That, while plaintiff was at work loading rock on said car on said day, standing up in said car, the said car was moved under the order of said foreman without giving any warning or notice to plaintiff, and plaintiff was thrown forward, falling on his hands, and a large rock was thrown on plaintiff's right hand, striking his right forefinger. The said fore-finger was so greatly bruised that blood poisoning set in, and his finger had to be taken off. That plaintiff suffered great pain from the wound for five weeks, and is permanently disabled by the loss of his finger. That plaintiff's injury was caused by the negligence of defendant in moving the train without giving him any notice or warning."

The answer denied the allegations of the complaint specifically.

On the trial, plaintiff, testifying for himself, said that Patton was not in charge of the train on the day he received the injury, but that one Degan, his assistant, was in charge and acting in his place. This was corroborated by Patton, who was present and testifying, and by all the other witnesses testifying in that behalf.

The defendant objected to the admission of all...