| Ark. | Jun 26, 1911
(after stating the facts.) The defendant Mill. Company demurred to the complaint, and excepted to the action of the court in overruling it. The plaintiff, however, has not made any argument on that point in his brief, and, by a familiar rule of practice, the error of the court, if any, in overruling the demurrer will be treated as abandoned.
The sole contention made by the counsel for the plaintiff is that the court erred in directing a verdict for the defendant. In determining this question it first -becomes necessary to consider whether or not Purifoy was a trespasser at the time he was killed. We hold that he was not. The evidence shows that, while he was not given permission to use the track bicycle in the first instance, the fact that he was using it was well known to the officials of the railway company -as well as to the engineers who ran the trains. The superintendent of the railway company said that it was agreeable to him for Purifoy to use the track bicycle because by this means he could quicker and better look after the business of the company for which he was employed. Plence we hold that he was rightfully on the track of the company at the time he was killed.
This being true, the lookout statute is applicable to this case, and the plaintiff made a prima facie case of negligence against the Railway Company when it was shown that Purifoy was killed by the, train. The -burden to ove-fcome this presumption of negligence was upon the Railway Company. St. Louis, I. M. & S. Ry. Co. v. Standifer, 81 Ark. 275" date_filed="1907-01-07" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Standifer">81 Ark. 275; St. Louis S. W. Ry. Co. v. Graham, 83 Ark. 61" date_filed="1907-05-13" court="Ark." case_name="St. Louis Southwestern Railway Co. v. Graham">83 Ark. 61; St. Louis, I. M. & S. Ry. Co. v. Puckett, 88 Ark. 204" date_filed="1908-11-23" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway v. Puckett">88 Ark. 204.
It was the duty of defendant’s servants to keep a lookout. The undisputed evidence shows that no lookout was kept, and We can not say, as a matter of law, that, under the facts and circumstances adduced in evidence, the accident would have happened, regardless of the fact of whether or not defendant’s servants kept a lookout.
The remaining and most serious question in the case is the contributory negligence of Pú-rifoy. Under the facts and circumstances adduced in evidence, the question is a very close one, but we are of the opinion that the court erred, in not submitting it to the jury. Purifoy told the fireman when he got off that he was going to get his speeder. It is true that the engineer says that he did not hear this, and that Purifoy told him, as he understood, that he was going home. It may be that Purifoy thought that the engineer heard him tell the fireman that he was going to get his speeder, and that they saw him on the speeder following them in; and saw him take his position about fifteen or eighteen feet back of the tender before he was struck by it. It will be noted that the engineer did not notice that 'he was not in the clear until he stopped and examined clearly the position of his engine with reference to the approaching train on the main track. While the engineer says that he did not know that this would be his last trip, and that he might have had to go back to the woods and ■bring in some more of the men, other evidence shows that it was nearly dark and raining; that it had been raining throughout the day; that most of the men that worked in the woods had come in on the train of logs; and that some of them came in on a handcar ahead of the engine. The fireman had thrown the switch for the engine to go on the main track, had remained there to throw it for the engine to back again on the spur; and then, it might be inferred, remained there for the purpose of again throwing the switch for the engine to go back again on the main line and go to camp after the train on the main line had passed. It may have been that, under these circumstances, Purifoy thought the engineer was through work for the day and would immediately go back on the main track after the train on that track had passed.
The jury are the judges of the weight of the evidence and of reasonable inferences that might have been drawn therefrom. They might have found that, under the facts and circumstances, Purifoy was justified in taking a position about fifteen feet back of the tender, and that there would be no occasion for backing the engine and tender, or at least, if that was done, that some kind' óf -warning would be given to him. -These are the inferences which the jury may have drawn from the evidence, and made the question of the contributory negligence of Purifoy one for the jury.
For the error in directing a verdict for the defendant, the judgment must be reversed, and the cause remanded for a new trial.