Moody v. St. Louis, Iron Mountain & Southern Railway Company

• Citation: 115 S.W. 400,89 Ark. 103
• Parties: MOODY v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Decision Date: 14 December 1908
• Court: Supreme Court of Arkansas

115 S.W. 400

89 Ark. 103

MOODY v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

Supreme Court of Arkansas

December 14, 1908

Appeal from White Circuit Court; Hance N. Hutton, Judge; reversed.

Judgment reversed and cause remanded.

J. N Rachels, for appellant.

From the facts proved, and facts offered to be proved [and erroneously excluded], appellant was at the time of the injury on the right of way as a licensee and not as a trespasser. 60 S.W. 195; 20 Am. & Eng. R. Cas. [N.S.] 372; 7 Tex. 530; 90 Tex. 314; 85 Ark. 326; 110 S.W. 590. Appellant was pursuing the usual way of pedestrians at this point, was there by the implied permission of appellee, and was therefore, a licensee. 94 F. 323; 85 Ark. 326; 30 Am. & Eng R. Cas. [N.S.] 132; 36 Id. 151; 49 Id. [O. S.] 468; 10 L.R.A. [N.S.] 486. If, as appellee offered to prove, appellant's roadbed at the point where the injury occurred was within the corporate limits of the town, and was habitually used as a common thoroughfare or toepath over which many people daily passed, then, in failing to keep a lookout for pedestrians, and in failing to keep its train under control, appellant was guilty of negligence. Kirby's Digest, §§ 6595, 6607; 78 Ark. 22; 80 Ark. 535; 83 Ark. 61; 85 Ark. 326; 110 S.W. 590.

T. M. Mehaffy and J. E. Williams, for appellee.

1. Appellant's abstract is insufficient. Notwithstanding the testimony takes up about forty-six pages of the transcript appellant brings only three pages into the abstract, making no reference at all to the testimony of two of his own witnesses. Yet he seeks reversal on the facts. The appeal should be dismissed. 81 Ark. 66; 83 Ark. 77; Id. 35; 76 Ark. 130; 76 Ark. 217; 82 Ark. 547.

2. Under our practice the appeal is always from the order overruling the motion for new trial. A failure to save exceptions to the court's ruling leaves nothing on which to base the appeal. 4 Ark. 87; 5 Ark. 659; 7 Ark. 241; Id. 259. "If the party does not follow the ruling on his objection up by clinching it with an exception, he waives the objection." 73 Ark. 407-9; 76 Ark. 400; 85 Ark. 495. See, also, Kirby's Digest, § 6222; 112 N.W. 1120; 149 Mich. 451.

3. The judgment is right on the whole record, and should be affirmed. It simply shows that appellant was using appellee's main track as a highway at a place where trains were to be expected at any moment. A railroad track is not a public highway, and no amount of use can make it such. 46 Ark. 513; 82 Ark. 267; 83 Ark. 300, and cases cited.

OPINION

WOOD, J., [after stating the facts]

First. The appellee contends that there is no exception to the ruling of the court in refusing a new trial. The record order on this point is as follows: "At a former day of the present term of this court, the plaintiff filed motion for a new trial of the cause herein, and, the same being this day submitted to the court for its consideration and judgment, and the court, being well and sufficiently advised, doth refuse the prayer for a new trial, the plaintiff at the time having prayed for an appeal to the Supreme Court, which is by the court granted, and plaintiff given ninety days to prepare and file his bill of exceptions." We are of the opinion that this order, showing that the court refused the prayer for new trial and that the plaintiff at the time prayed for appeal to the Supreme Court, necessarily shows by implication, at least, that the plaintiff excepted to the ruling of the court in refusing his motion for new trial. The prayer for the appeal following the ruling in the same order, and from the ruling, was tantamount to an exception to the ruling.

Second. The court erred in refusing to allow witnesses to answer the questions propounded by appellant. If appellee permitted its roadbed to obstruct the natural drainage of water from the street, so that it overflowed and washed away the sidewalk, and thus compelled footmen to use the railroad track as a "toepath," instead of the sidewalk, and if this use of the railroad track by the public as a highway was so general, long continued and oft repeated that the appellee must have known thereof and acquiesced therein, then such use by appellant at the time of his injury would be permissive and constitute him a licensee, instead of a trespasser. Gulf, C. & S. F. Ry. Co. v. Matthews, 28 Tex. Civ. App. 92, 66 S.W. 588, 24 A. & E. R. Cas. [N.S.] 580; Connell v. Chesapeake & O. Ry. Co., 19 A. & E. R. Cas. [N.S.] 236; Davis v. Chicago & N. W. Ry. Co., 15 A. & E. R. Cas. 424; Morgan v. Wabash R. Co., 20 A. & E. R. Cas. [N.S.] 372; Penn. Rd. Co. v. Hammill, 56 N.J.L. 370, 29 A. 151, 24 L.R.A. 531; Anderson v. Chicago, St. P., Minn. & O. R. Co., 87 Wis. 195, 58 N.W. 79, 23 L.R.A. 203; Ward v. Southern Pac. R. Co., 25 Ore. 433, 36 P. 166, 23 L.R.A. 715.

The questions propounded by appellant to the witnesses were calculated to elicit testimony which would tend to show that the public was using the railroad track as a highway by at least the implied invitation or permission of appellee. The questions were therefore relevant, and pertinent to the issues of negligence and contributory negligence which were raised by the pleadings. The court should have permitted a thorough investigation along this line, but instead precluded by its rulings any inquiry that would develop the facts showing appellant to have been a...