Kansas City Southern Railway Co. v. Davis
Decision Date | 17 June 1907 |
Citation | 103 S.W. 603,83 Ark. 217 |
Parties | KANSAS CITY SOUTHERN RAILWAY COMPANY v. DAVIS |
Court | Arkansas Supreme Court |
Appeal from Little River Circuit Court; James S. Steel, Judge affirmed.
Action by John Davis against Kansas City Southern Railway Company. This is the second appearance of this case here. Upon the first trial of it in the circuit court, a verdict was directed, and plaintiff appealed, and this court held that the plaintiff's testimony, if true, made out a liability against the defendant, and that the case should be submitted to a jury under proper instructions. Davis v. Kansas City So. Ry. Co., 75 Ark. 165.
The second trial resulted in a verdict in favor of plaintiff for the sum of $ 800, and the railroad has appealed from a judgment entered thereon. The testimony may be found stated in in the former opinion. The evidence was practically the same upon this trial. The defendant questions the correctness of the court's instructions. The following instructions given by the court at the request of the plaintiff were objected to by the defendant.
Judgment affirmed.
Read & McDonough, for appellant.
1. The first instruction is based upon the lookout statute, Kirby's Dig. § 6607, and is not applicable to state of facts like the facts in this case. If plaintiff's statements be true, his injury was due, not to the sudden start of the train, but to the failure to warn. It was therefore error to put the burden upon the defendant. 44 Ark. 330; 23 A. 989; 52 Ark. 517; 51 Ark. 460; 58 Ark. 454; 40 Ark. 298. See also 70 Ark. 481.
2. The third instruction is abstract and misleading, and erroneously assumes that the defendant misled the plaintiff.
3. The fifth and sixth instructions are inapplicable to the facts. There was no issue that the defendant failed to give sufficient time to alight at a station, and there was no duty resting on the defendant to hold its train long enough at a temporary stop to allow the plaintiff to alight. Instructions which are not applicable to the facts of a case are erroneous. 41 Ark. 282; 37 Ark. 580; 9 Ark. 212; 13 Ark. 317; 16 Ark. 628; 26 Ark. 513; 57 Ark. 615; 42 Ark. 57; 54 Ark. 336; 58 Ark. 454.
Scott and Head, for appellee.
1. Appellant's exceptions to the instructions given, being in gross, are insufficient, and ought not to be considered. 75 Ark. 181; 76 Ark. 482; Id. 41; 38 Ark. 539.
2. The first instruction is not based upon Kirby's Dig. § 6607 alone. See also Id. § 6773, upon which appellee especially relies. As supporting this instruction, see 66 N.E. 478; 73 Ark. 548. For construction of above sections, 99 S.W. 81. Under other instructions given the jury, before finding, in plaintiff's favor, must have found that he was not guilty of negligence, hence this instruction could not have been prejudicial. In the absence of contributory negligence, the presumption of the carrier's negligence arises. 142 F. 955; 6 Cyc. 629; 7 Am. Rep. 699; 65 N.E. 557; 20 Barb. 282.
3. The third instruction is the law, and has been approved by this court. 75 Ark. 211. If it was objectionable, it was appellant's duty to make known its objections specifically in the court below. 73 Ark. 539; 65 Ark. 255; 73 Ark. 594; 75 Ark. 325.
4. The fifth and sixth were proper instructions. 3 Thomp. Neg. § 2870; 24 N.E. 631; 33 N.E. 204; 6 Cyc. 613-14; 26 So. 466.
The principal attack is made on the first instruction, which is copied in the statement of facts. Appellant argues that this instruction is only proper when the negligence of the company is a failure to obey the lookout statute. Section 6607 of [83 Ark. 221] Kirby's Digest. But counsel are in error in this, for it has been held that, under section 6773 of Kirby's Digest, placing responsibility upon railroads where injury is done to persons or property by the running of trains, a prima facie case of negligence is made out against the company operating the train by the proof of the injury. Barringer v. St. Louis, I. M. & S. Ry. Co., 73 Ark. 548, 85 S.W. 94; St. Louis, I. M. & S. Ry. Co. v. Standifer, 81 Ark. 275, 99 S.W. 81.
It is argued that the Barringer case was where injury was caused by the sudden jerk of the train, and therefore it may have been an injury caused by the running of the train, whereas the injury here was...
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