Prescott & Northwestern Railway Co. v. Weldy

• Decision Date: 05 November 1906
• Parties: PRESCOTT & NORTHWESTERN RAILWAY COMPANY v. WELDY
• Court: Arkansas Supreme Court

97 S.W. 452

80 Ark. 454

PRESCOTT & NORTHWESTERN RAILWAY COMPANY v. WELDY

Supreme Court of Arkansas

November 5, 1906

Appeal from Nevada Circuit Court; Joel D. Conway, Judge; reversed.

STATEMENT BY THE COURT.

Action brought by Lula Weldy, as administratrix of the estate of W W. Weldy, deceased, against the Prescott & Northwestern Railway Company and the Ozan Lumber Company, to recover damages resulting on account of the death of Weldy caused, as alleged, by negligence of the defendants. The plaintiff recovered judgment below, and the defendants appealed.

Judgment reversed and cause remanded.

McRae & Tompkins, C. C. Hamby, and Thornton & Thornton, for appellant.

1. The verdict is without proof to sustain it. There was positive evidence, uncontradicted, that the condition of the track complained of would not cause an engine such as was in use to wreck, and, further, that it was caused by slipping of cogs or pinions which it was the duty of deceased to keep in good condition, and to the unsafe condition of which his attention had been called.

2. The court erred in refusing instructions asked by appellant which there was ample evidence to support, and to which appellant was entitled because no other instructions fully covered the points raised. 69 Ark. 138.

3. The language of counsel in argument was prejudicial to appellant and, in view of the lack of evidence to support their verdict, must have influenced the jury to ignore the testimony of defendant's witnesses. Where prejudice has likely resulted from such language, this court will reverse even though the trial court has tried to remove it. 58 Ark. 353; 61 Ark. 138; 65 Ark. 626; 70 Ark. 306; Ib. 183; 71 Ark. 416; 72 Ark. 139; 75 Ark. 557; 74 Ark. 210; 73 Ark. 453.

Jones & Hamiter and J. O. A. Bush, for appellant.

1. The exception to remarks of counsel is frivolous. The remarks were justified by the answer of appellant, and the evidence.

2. There is no error in the instructions given at request of appellee. They are in accordance with decisions of this court, and the statute. 67 Ark. 389; 48 Ark. 333; 44 Ark. 293; 70 Ark. 295; Kirby's Digest, §§ 6290, 6137.

3. Appellant obtained all the instructions asked for by it which the law and facts justified, and there was no error in refusing the 1st, 2d, 3d and 4th.

OPINION

MCCULLOCH, J., (after stating the facts.)

The first assignmen of error is that the evidence is insufficient to sustain the verdict. Weldy was employed as locomotive engineer by Ozan Lumber Company, one of the appellants, which said company was operating a train of cars over the railroad of appellant railway company under some arrangement or agreement between the two companies. The engine which he was operating was derailed and overturned at a sharp curve of the track, and he was killed. It is alleged that the defendants were negligent in permitting the track to get out of repair, in that the outside rail at the curve was lower than the inside rail, and caused the engine to leave the track. There was evidence to sustain the charge of negligence against the defendants in permitting the track to get out of repair. One witness testified that a few days after the killing occurred he examined the track at the curve where the engine left the track, and that the track was depressed, and the two rails were about level. Another witness testified that he examined the track at the same time, and found the outside rail to be about two inches lower than the inside rail. This testimony was contradicted by the testimony of several other witnesses, and an attack is made upon the testimony of one of the witnesses for plaintiff on account of his interest in the result of the action, but these were matters to be settled by the jury in weighing the evidence.

There was testimony, introduced by the defendants, tending to establish the fact that the cause of the engine leaving the track was the slipping of pinions or cogs attached to the wheels of the engine; that it was the duty of Weldy as engineer to repair the defect which caused the accident, and that he was notified of such defect. Several witnesses testified to these facts, and they are established by a preponderance of the evidence.

Now this testimony tended to show, not only that the alleged negligence of the defendants in permitting the track to get out...