Little Rock & M. Ry. Co. v. Russell
Decision Date | 23 November 1908 |
Citation | 113 S.W. 1021 |
Parties | LITTLE ROCK & M. RY. CO. v. RUSSELL. |
Court | Arkansas Supreme Court |
Appeal from Circuit Court, Union County; Geo. W. Hays, Judge.
Action by D. Gill Russell against the Little Rock & Monroe Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.
T. M. Mehaffy and J. E. Williams, for appellant. W. E. Patterson, for appellee.
D. Gill Russell brought this suit in the Union circuit court against the Little Rock & Monroe Railway Company to recover damages which he alleges he sustained by reason of the defendant negligently backing its train over him while he was crossing its railroad tracks at a public crossing in Huttig, Ark. The defendant answered, denying the material allegations of the complaint, and alleged contributory negligence on the part of the plaintiff.
Russell, the plaintiff, testified substantially as follows: Other testimony was adduced by the plaintiff tending to corroborate his statement. The defendant adduced evidence to establish its defense. The defendant has appealed from a verdict and judgment in favor of the plaintiff.
Counsel for appellant base reversal upon the court giving, over their objection, the following instruction: "(6) The court instructs the jury that if they could find from the testimony that plaintiff was walking on or down defendant's track when the backing train struck and injured him, but that if any of defendant's train crew operating said train saw or could have seen plaintiff's danger in time to apprise him of it, or in time to stop the train after it appeared that plaintiff was in such danger and that from all appearance would not see or hear the train in time to avoid injury, and such trainmen failed to warn plaintiff or to stop the said train, although they may further find that plaintiff was at the time a trespasser on said track, they will find for the plaintiff." This instruction was erroneous in telling the jury that, if any of appellant's train crew could have seen appellee's danger in time to apprise him of it and failed to warn him, they should find for appellee, although they might further find that he was at the time a trespasser. It has been repeatedly held by this court that the servants of a railroad company owe a trespasser no duty except to...
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