St. Louis, Iron Mountain & Southern Railway Co. v. Evans

• Decision Date: 14 November 1910
• Citation: 132 S.W. 648,96 Ark. 547
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. EVANS
• Court: Arkansas Supreme Court

132 S.W. 648

96 Ark. 547

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

Supreme Court of Arkansas

November 14, 1910

Appeal from Pope Circuit Court; Hugh Basham, Judge; affirmed.

Judgment affirmed.

Lovick P. Miles and Thomas B. Pryor, for appellant.

1. The decision of this court on former appeal, 87 Ark. 628, left no question at issue but the one whether or not, under the emergency shown, the engineer acted with ordinary care. The fourth instruction, given by the court, errs in that it eliminates the question of the engineer being in the exercise of ordinary good care when under the emergency existing he believed it would be safer not to blow the whistle or ring the bell. 60 Ark. 586.

2. There is no presumption of law that the engineer saw the deceased, knew that he was a man insensible of his danger in time to have avoided injuring him, and thereafter failed to exercise reasonable care to avoid such injury, but such fact must be proved. 77 Ark. 404-5.

3. Argument of appellee's counsel to the jury, being a patent effort to arouse the passions and prejudices of the jury rather than to assist them in weighing the evidence and arriving at a true verdict, was prejudicial, and the cause should be reversed because of such argument. 91 Ark. 95; 7 Enc. of Ev. 931; 118 Mich. 560; 42 L. R. A. 536; 45 Ark. 347; 58 Ark. 553; 70 Ark. 306; 61 Ark. 137.

U. L Meade and Davis & Pace, for appellee.

1. The evidence shows beyond question that the engineer of the train saw deceased in time to have given the alarm by sounding the whistle and ringing the bell. The question for the jury to decide was whether or not the engineer exercised ordinary care, after he discovered the peril of the deceased, to prevent the injury. This, according to the evidence he failed to do. 87 Ark. 628.

2. Argument of counsel for appellee was justified by the evidence adduced, and in part invited by the conduct of counsel for appellant. The trial court heard the evidence and appellant's objections to counsel's argument, and overruled the same--and properly so. No prejudice resulted. 95 Ark. 284; 90 Ark. 409; 91 Ark. 579; 23 Ark. 32; 34 Ark 658; 20 Ark. 619; 66 Ark. 16. Remarks of counsel called forth by arguments and statements of opposing counsel can not be made the subject of complaint here. 77 Ark. 1; 95 Ark. 284. Unless some undue advantage has been secured by the argument of counsel which has worked a prejudice to the losing party not warranted by the law and the facts of the case, this court will not reverse. 74 Ark. 260. The trial judge can best determine at the time the effect of the argument before the jury, and a wide range of discretion must be accorded to him. 74 Ark. 259; 71 Ark. 406; 20 Ark. 619; 34 Ark. 649; 74 Ark 489; 75 Ark. 67.

3. This court will not reverse for a mere formal defect in an instruction, especially where no specific objection thereto has been urged in the lower court. 65 Ark. 255; 76 Ark. 348; 76 Ark. 468.

MCCULLOCH, C. J. HART, J. dissenting.

OPINION

MCCULLOCH, C. J.

David F. Evans was struck and killed by one of defendant's trains while he was asleep near the track, in the night time, with his head resting on or near the end of the cross-ties. His administrator instituted this action to recover damages on account of alleged negligence of defendant's servants in charge of the train, and on a former trial of the case the circuit court instructed the jury to return a verdict in favor of defendant. Plaintiff appealed, and this court reversed the judgment and remanded the cause for a new trial, holding that there was sufficient evidence to go to the jury on the question of negligence of defendant's servants in failing to give proper signals to awaken said decedent and warn him of the approach of the train. In disposing of the case here, this court said:

"The failure of the engineer to use the instrumentalities placed at his hands for the purpose of warning persons on the railroad track of the near approach of a train created a condition from which reasonable minds might draw different conclusions. In other words, the jury might have found negligence from his failure to give the usual danger signals. We are of the opinion that the testimony was sufficient to submit the question of negligence in this respect to the jury." Evans v. St. Louis, I. M. & S. Ry. Co., 87 Ark. 628, 113 S.W. 642.

The case was again tried on substantially the same testimony. Plaintiff recovered judgment for damages in the sum of $ 1,500, from which the defendant prosecutes this appeal. It is unnecessary to set forth the facts in detail, for they are fully set out in the former opinion of this court; nor is it necessary to discuss them, as this court has already held that they were sufficient to sustain a verdict in favor of plaintiff.

It is insisted that the fourth instruction given at the instance of plaintiff assumed that it was negligence on the part of the engineer to fail to ring the bell or blow the whistle after discovering deceased ahead in close proximity to the track. The instruction referred to is somewhat ambiguous, and might be construed as an assumption that the failure to give signals constituted negligence; but, when read in connection with the other instructions in the case, it is not at all probable that the jury so understood it, for the question of negligence was clearly submitted for their determination. In this condition of the record, and in the absence of a specific objection to the fourth instruction, we cannot say that it was error which calls for a...