St. Louis, Iron Mountain & Southern Railway Co. v. Spillers

117 Ark. 483 | Ark. | 1915

Wood, J.,

(after stating the facts). (1) The testimony of the engineer and fireman, employees in charge of appellant’s train, upon whose alleged negligence the liability of appellant to appellee was predicated, is perfectly reasonable and consistent. Their testimony was uncontradicted, and the jury had no right to arbitrarily disregard the same. St. Louis, I. M. & S. Ry. Co. v. Humbert, 101 Ark. 532, and eases there oited.

(2) The undisputed testimony shows that appellee was a trespasser, and that the engineer and fireman, at the time of his injury, were keeping the lookout required by the statute, and that they did not discover the perilous situation of appellee, and could not have discovered the same in time to have avoided the injury for which he sues. The night was dark, and the position that appellee assumed in lying down upon the cross-ties at the cattle guard was such that the engineer and fireman did not and could not have discovered him in time to have prevented injuring him.

Witnesses who made the test as to the ability of one to see a person lying upon or by the' track from the engine corroborated the testimony of the engineer and fireman. The case is wholly unlike the oases of St. Louis, I. M. & S. Ry. Co. v. McMichael, 115 Ark. 101, and St. Louis, I. M. & S. Ry. Co. v. Belcher, 117 Ark. 638, infra, recently decided by this court. There the injury occurred in daylight, and .there was a .conflict in the evidence as to whether the employees had kept the lookout required by the statute.

While one of the witnesses says that he could see the gravel a distance of a quarter of a mile and could •see the cross-ties, the cattle guard and the “thing up by the side of it,” he testified that he could not and did not see the man until he was within fifteen or twenty feet of him. And the other witness testified that he could see a man on the' cattle guard as easily as he could see the .cattle guard; that he could see the side fenders on the cattle guard, and that if there had been a man on his side he could have seen him because the light was bright; but he does not say at what distance he could have seen him. There was no man on his .side, and he therefore did not see the man who was placed in the position that appellee was in when his injury occurred.

There is no testimony to sustain the verdict. The judgment will therefore be reversed, and as the case has been fully developed the cause will be dismissed.