79 Ark. 12 | Ark. | 1906
This is an action brought by appellee to recover the value of a lot of cotton destroyed by fire alleged to have been negligently set out by a defective locomotive. The cotton was situated on the platform of the railway company at McCrory, Arkansas. The complaint also alleged that the locomotive was negligently operated so as to emit sparks and cinders.
The plaintiff recovered judgment below for the value of the cotton, and the defendant appealed.
The testimony adduced at the trial was sufficient to bring the case within the principles announced in St. Louis, I. M. & So. Ry. Co. v. Coombs, 76 Ark. 132, and was ample to warrant the verdict. It was sufficient to justify a finding that the fire was communicated by sparks from the engine, and that the emission of sparks was caused by negligence of the company either in failing to provide suitable appliances to prevent the escape of sparks, or in the operation of the engine.
The court erred, however, in giving instructions which imposed upon the company the absolute duty of supplying its locomotives with the best approved appliances in use, and of keeping them in good condition, instead of requiring only the exercise of reasonable care in providing such appliances and keeping them in good condition. St. Louis, I. M. & So. Ry. Co. v. Dawson, 77 Ark. 434, and cases cited.
It is contended by counsel for appellee that the erroneous instructions were cured by correct ones given at the instance of the defendant. That did not cure the error. The instructions were not harmonious, but were conflicting and calculated to mislead the jury. Fletcher v. Eagle, 74 Ark. 585.
For the errors in this respect the judgment is reversed, and cause remanded for a new trial.
