Missouri Pac. R. Co. v. Ross

• Decision Date: 13 November 1939
• Docket Number: No. 4-5651.,4-5651.
• Citation: 133 S.W.2d 29
• Parties: MISSOURI PAC. R. CO. et al. v. ROSS.
• Court: Arkansas Supreme Court

133 S.W.2d 29

MISSOURI PAC. R. CO. et al. v. ROSS.

No. 4-5651.

Supreme Court of Arkansas.

November 13, 1939.

Rehearing Denied December 4, 1939.

Appeal from Circuit Court, Hot Spring County; Thomas E. Toler, Judge.

Action by Joseph Richard Ross against the Missouri Pacific Railroad Company and others, for injuries sustained by plaintiff while engaged in constructing concrete forms to be used in the repair of street crossing on tracks of the defendant. From a judgment for the plaintiff, defendants appeal.

Reversed and remanded.

R. E. Wiley, of Little Rock, and Richard M. Ryan, of Hot Springs, for appellants.

Glover & Glover, of Malvern, for appellee.

McHANEY, Justice.

Appellee was, on July 28, 1938, working as a carpenter for the Lund-Buxton Engineering Company, hereinafter called the Contractor, and was engaged in constructing forms to be used in the repair of the Main Street crossing on the tracks of appellant in the city of Malvern, Arkansas, for which purpose the Contractor had been employed by it. The forms being built by appellee were to be used in the pouring of concrete, and a concrete mixer was operating near by, making a great deal of noise. Platforms were laid across the tracks, over which to roll wheelbarrows in going to and from the mixer, and it was necessary to remove same when a train or an engine approached to pass over said crossing. A switch engine had been operating in the yards at Malvern that morning, south of the Main Street crossing, and sometime during the morning, it backed up from the south to the north, pulling a box car attached to the front end of the engine, to pass over the Main Street crossing, and, while doing so, struck and injured appellee.

He brought this action against appellant and the Contractor to recover damages for the alleged injuries sustained by him. The negligence laid against appellant was failure to keep a lookout, operating at a dangerous rate of speed over said crossing, and failure to give the statutory signals. Negligence was also charged against the Contractor, but before the trial began, a non-suit was taken as to the Contractor and a covenant not to sue executed and delivered to it. Appellant's defense was a general denial, a plea of contributory negligence and negligence of the Contractor. Appellant excepted to the action of the court in allowing a non-suit in favor of its co-defendant, the Contractor. Trial resulted in a verdict and judgment against appellant in the sum of $1,700, hence this appeal.

Among other assignments of error presented and argued for a reversal of this judgment is instruction No. 1, given at appellee's request, over the objections and exceptions of appellant. This instruction reads as follows: "You are instructed that if you find from a preponderance of the evidence in this case that the plaintiff was injured by the operation of one of the trains of the defendant, Guy A. Thompson, trustee for the Missouri Pacific Railroad Company, as alleged in the complaint, that the law presumes...