Dequeen & Eastern Railroad Company v. Pigue

• Decision Date: 07 October 1918
• Docket Number: 150
• Citation: 205 S.W. 888,135 Ark. 499
• Parties: DEQUEEN & EASTERN RAILROAD COMPANY v. PIGUE
• Court: Arkansas Supreme Court

205 S.W. 888

135 Ark. 499

DEQUEEN & EASTERN RAILROAD COMPANY v. PIGUE

No. 150

Supreme Court of Arkansas

October 7, 1918

Appeal from Howard Circuit Court; J. S. Lake, Judge; affirmed.

Judgment affirmed.

D. B Sain, for appellant.

1. The court erred in its instructions to the jury. Appellee was a mere trespasser. 83 Ark. 300; 88 Id. 172; 57 Id. 461; 99 Id. 422.

2. The verdict is not supported by the evidence.

W. P Feazel, for appellee.

1. No exceptions were saved to the instructions. 114 Ark. 300; 88 Id. 505.

2. Appellee was not a trespasser and he was entitled to the exercise of ordinary care on the part of appellant's servants not to injure him. 104 Ark. 409; 93 Id. 15.

3. The testimony is abundantly sufficient to sustain the verdict.

OPINION

HART J.

Harmon Pigue was injured while unloading freight from one of the cars of the DeQueen & Eastern Railroad Co. at Dierks, Arkansas. He alleged that the injuries were sustained on account of the negligence of the railroad company and sued it to recover damages. The case was tried before a jury which returned a verdict in favor of the plaintiff for $ 350 and from the judgment rendered this appeal is prosecuted.

It is first insisted that the judgment should be reversed because the court erred in giving certain instructions for the plaintiff. No exceptions were saved to the action of the court in giving or refusing instructions, but the alleged errors now complained of were made grounds of the defendant's motion for a new trial. This was not sufficient. Exceptions to the action of the trial court in giving or refusing instructions must be made during the trial and brought into the record by a bill of exceptions, and can not be reserved by merely assigning them as grounds for a motion for a new trial. Arkansas-Denning Coal Co. v. Yocum, 128 Ark. 291, 194 S.W. 34; Kentucky Military Institute v. Cohen, 131 Ark. 121, 198 S.W. 874, and Cammack v. Southwestern Fire Ins. Co., 88 Ark. 505, 115 S.W. 142.

The only question presented for review on this appeal is the sufficiency of the evidence to sustain the verdict. The circumstances attending the injury as proved by the plaintiff are substantially as follows:

On the day the plaintiff was injured he was engaged in driving a public dray for Ike Garrison. He drove his wagon to the depot at Dierks for the purpose of unloading from the railroad company's cars some angle irons for lintels over some windows. The freight checker of the railroad company pointed out the car in which this freight was and directed them to enter the car and unload the freight. The plaintiff backed his wagon up against the door of the car and got in his wagon for the purpose of receiving the freight and loading it in the wagon as it was handed to him from the car. The consignee of the freight was in the car handing the freight to the plaintiff in the wagon. The car which they were unloading was attached to a local freight train and while they were unloading it the engineer backed the train which caused the wagon in which the plaintiff was standing to turn over and throw him from it whereby he was painfully injured. The freight train had been backed from the main track onto the house track before they commenced to unload the car. The car however, was still attached to the train. The plaintiff and the consignee of the freight knew that the car was still attached...