117 Ark. 483 | Ark. | 1915
(after stating the facts).
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.