St. Louis, Iron Mountain & Southern Railway Co. v. Thompson-Hailey Co.

• Decision Date: 30 April 1906
• Citation: 94 S.W. 707,79 Ark. 12
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. THOMPSON-HAILEY COMPANY
• Court: Arkansas Supreme Court

94 S.W. 707

79 Ark. 12

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. THOMPSON-HAILEY COMPANY

Supreme Court of Arkansas

April 30, 1906

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

Judgement reversed.

B. S Johnson, for appellant.

1. The court erred in the instructions to the jury as to the duty of the appellant to equip its locomotives with appliances to prevent injury to propery upon its right of way. It is chargeable with the duty to exercise only reasonable care in the selection of these appliances. 76 Ark. 132; 14 F. 140; 83 F. 300; 15 Conn. 124; 73 Pa.St. 121; 44 Ill. 28; 31 Ind. 143; 18 Kan. 261; 41 Wis. 78; 36 N.J.L. 553; 31 Ia. 176; 77 Ark 434.

J. F. Summers, for appellee.

2. The verdict was contrary to the evidence.

1. The exceptions to the instructions of the court were general, the court's attention was not directed to the features urged here as objectionable, and they are not properly before this court. 73 Ark. 596; 65 Ark. 255; 65 Ark. 54; 66 Ark. 264; Ib. 46. If there was error in the instructions complained of, it was cured by others given, and by the court's direction to the jury that all the instructions were to be considered together. Since it is in proof that appellant's engine was provided with the best spark arrester and contrivances to prevent the escape of fire known and in use in practical railroading, appellant was not prejudiced by the instructions.

2. The testimony warranted the verdict.

OPINION

MCCULLOCK, J.

This is an action brought by appellee to recover the value of a lot of cotton destroyed by fire alleged to have been negligently set out by a defective locomotive. The cotton was situated on the platform of the railway company at McCrory, Arkansas. The complaint also alleged that the locomotive was negligently operated so as to emit sparks and cinders.

The plaintiff recovered judgment below for the value of the cotton, and the defendant appealed.

The testimony adduced at the trial was sufficient to bring the case within the principles announced in St. Louis, I. M. & So. Ry. Co. v. Coombs, 76 Ark. 132, 88 S.W. 595, and was ample to warrant the verdict. It was sufficient to justify a finding that the fire was communicated by sparks from the engine, and that the emission of sparks was caused by negligence of the company either in failing to provide suitable appliances to prevent the escape of sparks, or in the operation of the engine.

The court erred, however, in giving instructions which imposed upon the company the absolute duty of supplying its locomotives with the best approved appliances in use, and of keeping them in good condition, instead of requiring only the exercise of reasonable...