Missouri Pacific Railroad Co. v. Lamb
| Decision Date | 04 April 1938 |
| Docket Number | 4-5018 |
| Citation | 115 S.W.2d 864,195 Ark. 974 |
| Parties | MISSOURI PACIFIC RAILROAD COMPANY ET AL. v. LAMB |
| Court | Arkansas Supreme Court |
Appeal from Boone Circuit Court; J. H. Black, Judge; reversed.
Judgment reversed and cause dismissed.
Thomas B. Pryor and Harvey G. Combs, for appellant.
Shouse & Walker, for appellee.
One of appellant's lines of railroad runs through the village of Bergman in Boone county, Arkansas, 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 one hundred feet west of its depot and appellant constructed and maintains a bridge over said ditch about fourteen feet wide and some twenty or thirty 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 six inches above the floor thereof. There are no banisters or guard rails on said bridge. On the night of November 3, 1936, appellee, a long-time resident of Bergman sixty- nine 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 eight or ten 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 saved. Elkins v. Moore, 127 Ark. 293. 191 S.W. 910; DeQueen & Eastern Rd Co. v. Pigue, 135 Ark. 499, 205 S.W. 888; Cammack v. Southwestern Fire Insurance Company, 88 Ark. 505, 115 S.W. 142.
For the purpose of this opinion, we assume, without deciding, that ...
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Murray v. State
...The order overruling appellant's motion for new trial states that appellant saved his exceptions. As was said in Missouri Pac. R. Co. v. Lamb, 195 Ark. 974, 115 S.W.2d 864, 'This assignment of error [sufficiency of the evidence] in the motion for a new trial may be considered on appeal even......
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Granite Mountain Rest Home, Inc. v. Schwarz
...this court, likewise, said, 'We note further however it was held in the Clayton case, supra, and in Missouri Pacific Railroad Company et al. v. Lamb, 195 Ark. 974, 115 S.W.2d 864, that even where no motion for an instructed verdict was requested, the point could be raised in a motion for a ......
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