Railway Company v. Morgart

• Decision Date: 16 May 1892
• Citation: 19 S.W. 751,56 Ark. 213
• Parties: RAILWAY COMPANY v. MORGART
• Court: Arkansas Supreme Court

19 S.W. 751

56 Ark. 213

RAILWAY COMPANY v. MORGART

Supreme Court of Arkansas

May 16, 1892

APPEAL from Nevada Circuit Court, CHARLES E. MITCHEL, Judge.

Cause dismissed.

Dodge & Johnson for appellant.

This case has been reversed twice. 45, Ark. 318; 8 S.W. 179. The same evidence was used except the evidence of Jack Weed. The same instructions were asked, objected to and given, and the same verdict was rendered. The additional facts adduced do not change the legal aspect of the case, and it should be reversed again.13 S.W. 740; 11 S.W. 212.

Scott & Jones for appellee.

1. Review the evidence in detail and contend that the verdict is amply supported.

2. The instructions have already been passed on by this court except the 4th which contains the principle that if the negligence of the master was combined with that of a fellow servant, and thus combined caused the injury, the plaintiff is entitled to recover. Wharton on Neg. sec. 227; 35 Ill 217; 106 W. S. 700; 95 U.S. 546; 10 Gray, 274; 3 Vroom, 151; 46 Wis. 497; 135 Mass. 575.

3. There should be an end of litigation in this case. Three juries have passed upon it. 39 Ark. 491.

OPINION

HUGHES, J.

This is the third appeal in this Case by the Railway Company. On the first appeal, reported in 45 Ark. 318, the court, through Judge Smith, said. "The testimony on both sides shows that the proximate cause of the disaster was the high speed at which the train was moved, in disregard of the danger signals;" and that "it was impossible for the jury, with a proper regard for the undisputed facts in the case, to absolve Morgart from blame in the matter of accelerated speed." It was also said in the opinion that "the jury could not have found that the condition of the track or of the trestle was the immediate cause of the wreck." On the second appeal, reported in 8 S.W. 179, the testimony was precisely the same as on the first, and the judgment was reversed for the same reason for which the judgment on the first appeal was reversed. The only material additional testimony on the third trial was that of John C. Weed, an experienced railroad employee, who had been for sixteen year in the employment of the defendant company, but was not in its employment at the time he gave his testimony. His testimony, so far as we deem it material, was in substance: That he was not present at the place of the wreck when it occurred; that he arrived at the place of accident about two hours after it occurred. He says: "I discovered, when I got there, that the bridge had been raised from four to six inches, and the rails at the south end of the trestle were swinging so that they were clear of the ground. The stringers of the bridge had been raised from four to six inches. I don't know where the joint of the rail was. When I speak of the swinging rail, I mean that the stringers on the bridge had been raised up and the rails were not solid on the embankment. The wheels seemed to have dropped down on the ties about twenty feet south of the bridge. There was evidence, for about twenty feet on the rail that I could see, of a wheel riding the rail, but I could not tell which wheel it was. From what I saw I should say the swinging rails were not safe, and were sufficient to cause the wreck." "I know nothing of the condition of the bridge at the time of the accident."

The...