Fordyce v. Key
Decision Date | 21 January 1905 |
Parties | FORDYCE v. KEY |
Court | Arkansas Supreme Court |
Appeal from Polk Circuit Court WILL P. FEAZEL, Judge.
Reversed.
Judgment reversed and cause remanded.
S. W Moore and Read & McDonough, for appellants.
The court erred in overruling defendant's motion to require plaintiff to elect upon which allegation or act of negligence he would rely for a recovery. 88 F. 770; 51 Mo.App. 125; 29 N.W. 224; 71 Mo. 514; 72 Mo. 212; 19 Am. & Eng. R. Cas. 36; 8 Id. 123; 5 Id. 504; 26 Conn. 220; 44 Am. & Eng. R. Cas. 494; 8 How. Pr. 177; 7 N.Y.S. 753; 4 How. Pr 226; 16 S.E. 292; 30 S.C. 111. It was error for the jury to retire from the court room and examine the injuries of the plaintiff. 12 Am. & Eng. Enc. Law, 367; 19 N.J.L. 76; 1 N.J.L. 145; 22 Minn. 5; 42 L.R.A. 372. There was no evidence to support the verdict. 41 Ark. 382; 44 Ark. 524; 45 Ark 318; 46 Ark. 555; 48 Ark. 460; 54 Ark. 389; 4 Elliott, Railroads, § 1697; 27 N.E. 62. Instruction No. 2 was error. 63 Ark. 477. It was error to refuse instructions requested by defendant. 35 Ark. 602; 41 Ark. 542; 46 Ark. 388; 54 Ark. 389; 58 Ark. 125, 168; 46 Ark. 555; 58 Ark. 477. The argument of appellee's counsel was improper. 70 Ark. 179; 69 Ark. 648. It was error to permit appellee to introduce evidence that the engine moved at the time Key was injured. 41 Ark. 394; 59 Ark. 165.
Appellee sued appellants as receivers of the Kansas City, Pittsburg & Gulf Railroad Company for damages for personal injuries received whilst employed by them as "hostler's helper," his duties as such being to assist the hostler or engineer in charge of engines in the yards, and to "knock the fire, rake ashes and to coal and water the engine." The injury occurred in the yards of the company at Mena, Ark., and appellee, in his testimony, describes the occurrence as follows:
Billingsly, the engineer, testified concerning the injury as follows:
Appellants proved by other witnesses that the engine was in good condition and free from defects.
Appellee alleges negligence on the part of appellants' servants in two particulars, viz.: That Billingsly, the engineer, who, he claims, was his superior, and not his fellow servant, caused the engine to move; and that by reason of the worn and defective condition of the throttle of the engine, allowing steam to escape and enter the cylinder, which was known to appellants, the engine was put in motion.
The court, on motion of plaintiff and over the objection of defendants, gave the following instruction:
"It is the duty of a railway company to use reasonable care in furnishing its employees safe appliances for performing the services entrusted or required to be performed by them, and to exercise care in maintaining such appliances in good repair; and in this case if the jury find from a preponderance of the evidence that the accident complained of occurred in a defect in the construction of the engine or a defective condition of the throttle [or] of any other part thereof that conduced to the injury complained of herein, and that the defendant company, by the use of reasonable care, could have prevented such result, then they should find for the plaintiff."
There was no testimony tending to show that there was any defect in the engine, so this instruction was abstract, and should not have been given. The burden was upon the plaintiff to show, not only that the engine was defective, but also that the company had notice of the defect, or could, by the exercise of reasonable care, have discovered the same. Negligence of the company in this particular cannot be inferred from the occurrence of the injury. St. Louis, I. M. & S. Ry. Co. v. Rice, 51 Ark. 467, 11 S.W. 699; St. Louis, I. M. & S. Ry. Co. v. Gaines, 46 Ark. 555; St. Louis, I. M. & S. Ry. Co. v. Harper, 44 Ark. 524; Railway Co. v. Davis, 54 Ark. 389; Little Rock & F. S. Ry. Co. v. Eubanks, 48 Ark. 460, 3 S.W. 808.
The instruction, being without evidence to warrant it, was misleading, and therefore prejudicial. Kansas & Texas Coal Co. v. Chandler, 71 Ark. 518, 77 S.W. 912; St. Louis & S. F. Ry. Co. v. Townsend, 69 Ark. 380, 63 S.W. 994.
The record shows that during the progress of the trial the plaintiff's attorney asked and obtained leave of the court (without objection from the defendants) for plaintiff to make exhibit of his injured parts to the jury, and the court directed the jury and plaintiff and the attorneys in the case to retire to a jury room for that purpose, the presiding judge not accompanying them. The defendants objected to the...
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