Brown v. St. L., I. M. & S. Ry., 52 Ark. 120

Brown v. St. L., I. M. & S. Ry.

52 Ark. 120 | Ark. | 1889

Per Curiam,

Instructions : "Practice" New trial. 1. Maria Brown, the plaintiff, was not prejudiced by the court’s refusal to instruct the jury that they ... . ... might return a verdict for punitive damages, because by their finding she was entitled to nothing.

2. The plaintiff’s third prayer for instruction was inconsistent with the ruling in Monday v. St. L., I. M. and S. Ry. Co., 49 Ark., 257. Moreover, it was not responsive to the cause of action stated in the complaint.

3. Upon the cause of action made by the complaint, it was necessary for the plaintiff to prove that the deceased was knocked or thrown from the defendant’s train before she could recover; and without an amendment to the complaint showing a cause of action for negligence by being run over by another train (if such amendment was permissible), there could be no recovery for that cause. There was no error in. instructing the jury to that effect.

4. The objection to the prejudice of the juror came too late after the verdict, inasmuch as the plaintiff had not availed herself of the opportunity to examine him on the voir dire .and was not misled or deceived in reference thereto.

5. The newly-discovered evidence was cumulative only. Affirmed.