78 Ark. 220 | Ark. | 1906
(after stating the facts.)
But it was discovered on cross-examination that Page only found out that the boy was injured when he took him to the doctor, two or three days after the accident, and he only knew about how it was done from what the boy told him. This rendered that part of his testimony incompetent, and too remote. It was hearsay evidence, and prejudicial. But appellant, after thus bringing out these facts; did not ask the court to exclude the evidence. It elicited the evidence itself on cross-examination, and ib waived all objection to its incompet'ency by not moving the court to exclude it after such incompetency was discovered.
We see nothing in the evidence to warrant the conclusion, as matter of law to be told the jury, that if there was a boy on the wagon it was his duty to warn the appellee, who was in the car, and that, if he failed to do so, he was guilty of negligence which should be imputed to appellee, and that the railway company had the right to assume that the boy on the wagon would notify the boy in the car, and to act accordingly. The whole tenor and legal effect of the instructions were to take from the jury the very question which it should determine, namely, as to whether or not the appellant, under all the facts which the jury might find from the evidence, was guilty of negligence.-
The questions involved in these instructions were elaborately presented to the jury in general terms, in proper form, in other instructions. We find no error in the court’s charge.
Considering all the elements for which damage should be allowed, we do not feel authorized to disturb the verdict as to the amount.
Affirm.