| Ark. | Jul 10, 1911
(after stating the facts). It is contended that the court should have directed a verdict for the appellant, because it was not shown to have been guilty of any negligence in the use of the river in floating its timber. On the former appeal, we said:
“The Little Red River is a navigable stream, used mainly for floating logs. Defendant (appellant now) and others have the right to use it for that purpose, even without rafting the logs; but in doing so they must exercise ordinary care to avoid injuring others who rightfully use the river for the purposes of navigation. Those who use the river must take notice of defendant’s use in floating logs in the usual way, and must exercise care to avoid contact with the logs. The question whether defendant made use of the stream in a careful manner —that is to say, free from negligence under the circumstances of the case — and whether the injured party exercised care under the circumstances for his own safety, are questions for a jury to pass on.” Henderson v. Doniphan Lbr. Co., 94 Ark. 374.
The jury could have found, under the instructions given by the court and from the testimony, that, if the ferryman had been informed that a head rise was coming which would probably bring out all the logs above, he would not have undertaken to cross the river at the time he did; that the lumber company knew of the fact and sent word to its crew of men at the ferry about noon on that day, advising that the river was still rising; that the logs were coming free, and directing them to go immediately to the boom and take care of catching them upon arrival. It was further testified that if some one had been stationed at the ferry or immediately above it by the mill company, it could have given notice to the ferryman and others rightfully using the river, whose rights were of equal dignity with those of the lumber company, of the approach of the logs, and thus have prevented the injury. This being true, we are of the opinion, upon the whole case, that the mill company did not exercise such ordinary care as a reasonably prudent man would have used in its operations upon the river and bringing its timber to the mill at the time, and the jury were warranted in finding it negligent.
It is next contended that there was such contributory negligence shown upon the part of the deceased as will prevent a recovery as a matter of law. It is true that the ferryman had been engaged in the operation of the ferry for thirteen years at this place; that he was familiar with the custom of the lumber company in cutting and floating its timber; that he knew the river above was full of logs that would come out upon a big head rise, and that he had had to quit the operation of his ferry for three days the year before and two days the year before that, on account of the rising river and floating logs, and that he knew the danger of attempting to cross when the logs were coming down in any considerable number. 11 was also shown that the deceased lived 4 miles from the ferry and within a mile and a half of the river, and knew the custom of floating logs upon it; but he had safely crossed the river about 2 o’clock that afternoon with his daughter and another young lady, and at that time only a few logs were floating down, as many as two or three together, but none struck the boat, and it had to be held for only one small batch to pass. It is also true that the river was still rising, and it was about dark at the time he attempted to cross last, and they could not see up the river on account of the bend, but no considerable quantity of logs were floating and passing at the time the ferryman took the boat over for him, nor were any seen to be coming at the time they attempted to return with him, and it did not take a great while to cross. It is also true the ferryman objected to crossing and advised that they would better stay on that side of the river until morning, assuring deceased that there would be no expense to him in so doing, but he put it upon the ground that it was because he was sick and not able to pull the boat over.
We are of the opinion that, under all the circumstances, it was a question for the jury as to-whether or not he was guilty of such contributory negligence in attempting to cross at the time and in the way he did as would bar his recovery.
The jury might have found that the logs had not soon before the injury been floating in such large numbers as would make it obviously dangerous to cross the river, so much so that a reasonably prudent man would not have undertaken it at the time and under the conditions surrounding the deceased at the time he attempted to cross, and the question of his negligence was one for the jury to determine. The rule was approved by this court in St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 231, as stated in Richmond & D. Rd. Co. v. Powers, 149 U.S. 43" date_filed="1893-04-17" court="SCOTUS" case_name="Richmond & Danville Railroad v. Powers">149 U. S. 43, where the court said:
“It is well settled that where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair minded men will honestly draw different conclusions from them.”
We are not able to say that the undisputed facts in this case relative to the conduct of the deceased were such that reasonable men might not differ as to whether he did exercise ordinary care under the circumstances,-and that in reason and fairness only one conclusion could be drawn from them, and the court cannot declare that he was guilty of negligence as a matter of law. St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 231; St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 555; St. Louis & S. F. Rd. Co. v. Carr, 94 Ark. 253.
The question of whether the appellant’s negligence was the proximate cause of the injury was also one for the jury, and they might have found that it was the natural and probable consequence thereof and ought to have been foreseen in the light of the attending circumstances. Appellant knew that great quantities of logs had been placed in the river loose; that they would come down in large bodies during a high rise, filling the river from bank to bank and in the swift current, with force almost irresistible, sweeping everything out of the way with which they came in contact; that ferries were operated across the river upon which the people passed to and fro; and it was a question for the jury to decide whether the accident and injury was the natural and probable consequence of floating its logs unattended and without warning to others in the rightful use of the river, and .ought to have been foreseen in the light of existing circumstances. St. Louis, I. M. & S. Ry. Co. v. Bragg, 69 Ark. 402" date_filed="1901-06-15" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Bragg">69 Ark. 402; Pulaski Gas Light Co. v. McClintock, 97 Ark. 576" date_filed="1911-01-30" court="Ark." case_name="Pulaski Gas Light Co. v. McClintock">97 Ark. 576.
No objections to the instructions given and refused are urged here, and on the whole case we do not find any prejudicial error shown by the record, and the judgment is affirmed.