117 Ark. 638 | Ark. | 1915
(after stating the facts). The appellant contends that the court erred in not granting its prayer for a directed verdict. This court has held in several cases that where the testimony of the engineer and fireman is reasonable and uncontradieted, the jury have no right arbitrarily to reject it. St. Louis, I. M. & S. Ry. Co. v. Humbert, 101 Ark. 532, and oases there cited. It is also a well established doctrine, often recognized by this court, that juries will not be permitted to rest a verdict purely upon speculation, that there must be testimony which warrants a, finding of the essential facts, or which would warrant a reasonable inference of the existence of those facts upon which liability is predicated, before a verdict will be permitted to stand. St. Louis, I. M. & S. Ry. Co. v. Enlow, 115 Ark. 584; Midland Valley Rd. Co. v. Ennis, 109 Ark. 206. See also St. Louis, I. M. & S. Ry. Co. v. Hempfling, 107 Ark. 476; St. Louis, I. M. & S. Ry. Co. v. Owens, 103 Ark. 61; Russell v. St. Louis S. W. Ry. Co., 113 Ark. 353; Biddle, Recr., v. Jacobs, 116 Ark. 82. Counsel for appellant cite and rely upon some of these cases, but they have no application to the facts' of this record; for the reason (that here there was a conflict in the testimony, and the jury accepted the testimony on behalf of the appellee. Giving this testimony the strongest probative force, it was sufficient to warrant a finding that, if the engineer and fireman had been keeping the lookout required by law, they could have 'discovered Belcher’s peril in time to have prevented injury to him by the exercise of ordinary care after discovering his peril. True, the engineer and fireman testified roundly that they were keeping a lookout and that, on account of the position which Belcher had assumed on the track, they were unable to discover that he was a human being, and in a perilous situation, in time to stop the train before the same ran upon him; but the testimony of the witnesses for the appellee was sufficient to warrant a finding to the contrary.
It is unnecessary to discuss the evidence in detail;' the facts as ¡set forth in the statement speak for themselves. It can not be said that the jury arbitrarily disregarded the testimony of the engineer and fireman. Their verdict had substantial evidence to rest upon in the testimony of witnesses on behalf of appellee, and was not a mere matter of conjecture or speculation. The case, upon the facts of this record, is ruled by the recent case of St. Louis, I. M. & S. Ry. Co. v. McMichael, 115 Ark. 101, 171. S. W. 115, rather than by the ones cited by appellant.
The court, therefore, did not err in refusing appellant’s prayer for a directed verdict, and the judgment is affirmed.
