Fletcher v. Freeman-Smith Lumber Co.
| Decision Date | 11 November 1912 |
| Parties | FLETCHER v. FREEMAN-SMITH LUMBER COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Calhoun Circuit Court; George W. Hays, Judge; affirmed.
Judgment affirmed.
J. S McKnight and C. Hamilton Moses, for appellant.
Where there is any evidence tending to prove the issues in favor of either party to a suit, even though it be conflicting, or if the evidence is such that reasonable minds might draw different conclusions therefrom, it is the province of the jury to pass upon such evidence. 89 Ark. 522; 97 Ark. 347; Id. 353.
This court has held that where there is no evidence upon which a verdict could be found by the jury, the trial court may then direct a verdict. 57 Ark. 461-6; 35 Ark. 155; Id 499.
Gaughan & Sifford, for appellee.
This cause was formerly here on plaintiff's appeal, and was reversed on account of the trial court's error in giving a certain instruction. Fletcher v. Freeman-Smith Lbr. Co., 98 Ark. 202, 135 S.W. 827.
The second trial resulted in another verdict in favor of defendant, the court giving a peremptory instruction, and the plaintiff again appealed.
There is a slight difference in the testimony given in the two trials, and it therefore becomes necessary to restate the facts. Plaintiff was brakeman on a log train operated by defendant in the course of its business, and one of his duties was to couple cars. He was injured while attempting to couple to the end of the tender a car loaded with logs as the engine and tender backed on a spur track on which the log car was situated. He went in between the rails, and, after adjusting the coupling pin on the log car, took hold of the iron bar or "reach" as it is called which serves as the connection, but, as it came in contact with the drawhead of the car, he saw that it was too low to connect, and then attempted to signal the engineer to stop. Before the engine was stopped, he was caught between the ends of the tender and the car, and his leg was mashed. He charges in his complaint that the engineer was guilty of negligence in failing either to get the signal or to stop the engine after the signal was given. Does the evidence, viewing it in the strongest light, sustain that charge? The evidence is uncontradicted that the engineer was at his place in the cab of the engine, where he could have seen the signal if it was properly given. He testified that he was looking for a signal, and would have seen it if given. Plaintiff testified that he was between the rails, and gave a signal with his hand, but could not remember whether he gave it by throwing his hand upward or outward--that it could have been seen from the engine cab if he gave it by an outward movement of his hand, but not if given by an upward movement. At least, he stated that he did not know that it could have been seen if given by an upward movement with the hand. The burden was on plaintiff to show that he gave the signal in such a manner that it could be seen by the engineer in the cab while in proper...
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