100 Ark. 422 | Ark. | 1911
(after stating the facts.) It is earnestly insisted by counsel for the appellant that 'the evidence is not sufficient to warrant the verdict. It is conceded by counsel for appellee that in the discussion of this issue the question is, did the engineer discover or was he apprised of the deceased’s perilous condition? and, if so, was he apprised in time to have avoided killing him by exercising ordinary care? At the time the accident occurred the train was moving slowly, the engineer intending to stop it at a switch nearby for the purpose of picking up some cars loaded with bolts. The jury might have inferred that the engineer heard the loud screams of Roe, and saw him signaling him to stop, or that he heard the remarks made by Willis to the fireman, or by the fireman himself. It will be remembered that the fireman said when he first jumped off the engine, “I believe we are killing our conductor.” The fireman also said that when he came back and called to the engineer to stop the engine at once, the engineer fell over on Ms seat, and that the fireman had to then go up and stop the engine. From the testimony the jury might also have found that the engineer was apprised of Whitesell’s danger in time to have averted killing him. The fireman testified that when he got to White-sell he could not tell whether the wheel had taken hold of his body, but could tell that his clothes had been caught in the wheel. He- also said that when he first got there Whitesell had hold of the bolt that held the arch bar together with his right hand, and was grabbing at something with his left.
Therefore, we hold that the court was right in not directing a verdict for the defendant. Griffie v. St. Louis, I. M. & S. Ry. Co., 80 Ark. 186; St. Louis, I. M. & S. Ry. Co. v. Hill, 74 Ark. 478.
2. The court instructed the jury that the law raised the presumption that the decedent’s death was caused by appellant’s negligence. This was error. The burden was on the appellee to show that the engineer discovered the perilous situation of the deceased in time to have avoided killing him, and that he failed to use ordinary care to avert the injury. St. Louis & S. F. Rd. Co. v. Townsend, 69 Ark. 380; Chicago, R. I. & P. Ry. Co. v. Bunch, 82 Ark. 522; Adams v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 300; St. Louis S. W. Ry. Co. v. Jackson, 91 Ark. 14.
Moreover, in the case of the Kansas City Southern Ry. Co. v. Cook, post p. 467, we held that where a servant is engaged in the operation of a train, and is injured by the train, there is no presumption of negligence against the master, but the burden is on the .servant to show negligence.
For the error in giving the instruction indicated, the judgment will be reversed, and the cause remanded for a new trial.