Missouri Pac. R. Co. v. Lamb

• Decision Date: 04 April 1938
• Docket Number: No. 4-5018.,4-5018.
• Citation: 115 S.W.2d 864
• Court: Arkansas Supreme Court
• Parties: MISSOURI PAC. R. CO. v. LAMB.

115 S.W.2d 864

MISSOURI PAC. R. CO. v. LAMB.

No. 4-5018.

Supreme Court of Arkansas.

April 4, 1938.

Rehearing Denied May 9, 1938.

Appeal from Circuit Court, Boone County; J. H. Black, Judge.

Action by F. M. Lamb against the Missouri Pacific Railroad Company, Guy A. Thompson, trustee, to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals.

Reversed, and cause dismissed.

Thomas B. Pryor, of Fort Smith, and Harvey G. Combs, of Little Rock, for appellant.

Shouse & Walker, of Harrison, for appellee.

McHANEY, Justice.

One of appellant's lines of railroad runs through the village of Bergman in Boone county, Ark., where it has a station and station grounds. Some ten years or more ago, it constructed a ditch along the north side of said station and grounds in order to prevent the station and grounds from being flooded by heavy rains. The roadway crosses appellant's property about 100 feet west of its depot, and appellant constructed and maintains a bridge over said ditch about 14 feet wide and some 20 or 30 feet long. Barriers are constructed along said ditch to prevent persons from falling therein, and heavy timbers about 8" by 8" are laid along the sides of said bridge and extend about 6 inches above the floor thereof. There are no bannisters or guard rails on said bridge. On the night of November 3, 1936, appellee, a long time resident of Bergman, 69 years of age, thoroughly familiar with the bridge in question and its condition, undertook to cross said bridge in the nighttime, stumbled into one of the large timbers at the side of said bridge, and fell off into the ditch, some 8 of 10 feet below, upon his head, receiving severe and painful injuries. He brought this action to recover damages, and charged negligence "in the construction of said bridge without providing suitable guard rails or barriers and in placing a single timber along each side of the bridge." Appellee and his witnesses testified as to the construction of said bridge by appellant, how long it had been there, to the fact of his stumbling and falling into the ditch and detailing the extent of his injuries. There was no testimony on behalf of appellant, and at the conclusion of appellee's evidence, appellant requested an instructed verdict, but according to the record, saved no exception to the failure of the court to give same. Trial to a jury resulted in a verdict and judgment in appellee's favor in the sum of $1,000.

Appellant challenged the sufficiency of the evidence in its motion for a new trial, and this is the only error relied upon for a reversal of the judgment. This assignment of error in the motion for a new trial may be considered on appeal even though there was no request for a directed verdict, or if one was requested and no objections made or exceptions...