133 S.W.2d 29 | Ark. | 1939
Appellee was, on July 28, 1938, working as a carpenter for the Lund-Buxton Engineering. Company, hereinafter called the contractor, and was engaged in constructing forms to be used in the repair of the Main street crossing on the tracks of appellant in the city of Malvern, Arkansas, for which purpose the *183 contractor had been employed by it. The forms being built by appellee were to be used in the pouring of concrete, and a concrete mixer was operating near by, making a great deal of noise. Platforms were laid across the tracks, over which to roll wheelbarrows in going to and from the mixer, and it was necessary to remove same when a train or an engine approached to pass over said crossing. A switch engine had been operating in the yards at Malvern that morning, south of the Main street crossing, and sometime during the morning, it backed up from the south to the north, pulling a boxcar attached to the front end of the engine, to pass over the Main, street crossing, and, while doing so, struck and injured appellee.
He brought this action against appellant and the contractor to recover damages for the alleged injuries sustained by him. The negligence laid against appellant was failure to keep a lookout, operating at a dangerous rate of speed over said crossing, and failure to give the statutory signals. Negligence was also charged against the contractor, but before the trial began, a nonsuit was taken as to the contractor and a covenant not to sue executed and delivered to it. Appellant's defense was a general denial, a plea of contributory negligence and negligence of the contractor. Appellant excepted to the action of the court in allowing a nonsuit in favor of its co-defendant, the contractor. Trial resulted in a verdict and judgment against appellant in the sum of $1,700, hence this appeal.
Among other assignments of error presented and argued for a reversal of this judgment is instruction No. 1, given at appellee's request, over the objections and exceptions of appellant. This instruction reads as follows: "You are instructed that if you find from a preponderance of the evidence in this case that the plaintiff was injured by the operation of one of the trains of the defendant, Guy A. Thompson, trustee for the Missouri Pacific Railroad Company, as alleged in the complaint, that the law presumes negligence on the part of the defendant company, and it will be your duty, and you *184 are instructed to find for the plaintiff, unless the defendant has overcome that presumption by a preponderance of the evidence."
The giving of this instruction was error in this case. St. Louis-San Francisco Ry. Co. v. Cole,
Other assignments are argued for a reversal of the judgment, including the sufficiency of the evidence to *185 support the verdict and judgment, and alleged error of the court in allowing a nonsuit as to the contractor, all of which we have considered and find them without substantial merit. We do not review the evidence to show that it was sufficient to take the case to the jury. On another trial, it may be different, and the other alleged errors may not occur again.
For the error indicated, the judgment is reversed, and the cause remanded for a new trial.