Little Rock & Monroe Railway Company v. Russell
Decision Date | 23 November 1908 |
Citation | 113 S.W. 1021,88 Ark. 172 |
Parties | LITTLE ROCK & MONROE RAILWAY COMPANY v. RUSSELL |
Court | Arkansas Supreme Court |
Appeal from Union Circuit Court; George W. Hays, Judge; reversed.
Judgment reversed and remanded.
T. M Mehaffy and J. E. Williams, for appellant.
The sixth instruction is erroneous in that it places upon the appellant a degree of care which the law does not require in cases of trespassers; erroneous also in suggesting to the jury that appellee may have had the appearance of not seeing or hearing the train in time to avoid the injury, whereas there is no evidence whatever on which to base such suggestion or instruction. No duty is owing to a trespasser on railroad right of way except ordinary care after discovering the trespasser's peril, and it is equally well settled that the negligence of a trespasser offsets the negligence of trainmen in failing to keep a lookout. 61 Ark 558; 65 Ark. 359; 82 Ark. 522; 76 Ark. 224; 78 Ark. 60, 61; 36 Ark. 371; 40 Ark. 250; 47 Ark. 497; 49 Ark. 257; 50 Ark 483; 64 Ark. 364; 66 Ark. 494; 76 Ark. 10; 77 Ark. 401; 67 Ark. 235; 65 Ark. 233; 69 Ark. 382; 82 Ark. 267; 83 Ark. 300.
W. E. Patterson, for appellee.
The sixth instruction is right. The evidence clearly shows that appellee not only had the appearance of not seeing and hearing the train in time to avoid the injury, but that he did not see it in time, and that the track was level, open and straight, that plaintiff was seen on the track, and that with the least degree of care the train operatives could have seen him, if they did not, in time to have avoided the injury. 85 Ark. 326; 23 Am. & Eng. Enc. of L. 742; 62 Ark. 253; 36 Ark. 374.
D. Gill Russell brought this suit in the Union Circuit Court against 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, Arkansas.
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:
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 exercise ordinary care, after discovering his perilous position, not to injure him. St. Louis. I. M. & S. Ry. Co. v. Raines, 86 Ark. 306, 111 S.W. 262; St. Louis, I. M. & S. Ry. Co. v. Evans, 87 Ark. 628, 113 S.W. 642; Adams v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 300, 103 S.W. 725, and cases cited; Chicago, R. I. & Pac. Ry. Co. v. Bunch, 82 Ark. 522, 102 S.W. 369.
But appellant has waived this error because the instruction given to the jury at the request of...
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