| Ark. | Jan 7, 1907
(after stating the 'facts.) Appellee had no right upon appellant’s right of way, and especially to be walking upon a path in such proximity to appellant’s railroad track at a time when one of its trains was passing thereon. I'n so doing he was a trespasser, and appellant owed him no positive duty of care, and only the negative duty to ¡exercise ordinary care not to injure him after his perilous position was discovered. Johnson v. Stewart, 62 Ark. 164" date_filed="1896-03-14" court="Ark." case_name="Johnson v. Stewart">62 Ark. 164; St. Louis S. W. Ry. Co. v. Underwood, 74 Ark. 610" date_filed="1905-04-01" court="Ark." case_name="St. Louis Southwestern Railway Co. v. Underwood">74 Ark. 610; St. Louis, I. M. & S. Ry. Co. v. Neely, 63 Ark. 636" date_filed="1897-04-03" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Neely">63 Ark. 636; Burns v. St. Louis S. W. Ry. Co., 76 Ark. 10" date_filed="1905-06-10" court="Ark." case_name="Burns v. St. Louis Southwestern Railway Co.">76 Ark. 10; St. Louis, I. M. & S. Ry. Co. v. Fairbairn, 48 Ark. 491" date_filed="1886-11-15" court="Ark." case_name="St. L., I. M. & S. Ry. Co. v. Fairbairn">48 Ark. 491; Penn. Ry. Co. v. Martin, 23 Am. & Eng. R. Cas. (N. S.), 449; McGrath v. Eastern Ry. Co. 13 Am. & Eng. R. Cas. 768; Fletcher v. Baltimore & P. Ry. Co. 9 Am. & Eng. R. Cas. (N. S.), 230; Poling v. Ohio River R. Co. 24 L. R. A. 215.
It was in no sense the duty of Nelson, the foreman of the bridge gang, or his cook, to “keep a lookout” for persons on the track. That duty devolved upon the employees who were operating the train. As the keeping of a lookout was not in the line of the employment of the foreman of .the bridge gang and his cook, their testimony that they did not see appellee at the time of casting the cooler from the car is entirely .consistent and reasonable, and the jury could not arbitrarily disregard it. Kansas City So. Ry. Co. v. Lewis, 80 Ark. 396" date_filed="1906-10-15" court="Ark." case_name="Kansas City Southern Railway Co. v. Lewis">80 Ark. 396; St. Louis, I. M. & S. Ry. Co. v. Landers, 67 Ark. 514" date_filed="1900-03-03" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railroad v. Landers">67 Ark. 514, and cases cited there, It is not like those cases where the fireman, engineer or other employee, whose duty it is to keep a lookout, swear that they did not, although in the discharge of their duty, see a person in plain view upon the track. In such cases the jury might well conclude that the testimony was inconsistent and unreasonable, and refuse to believe i,t. But here the testimony, uncontradicted, disclosed an unfortunate but nevertheless real accident. The presence of appellee so near the track was not and could not have been reasonably anticipated by the foreman and his cook.
The court should have given appellant’s request for peremptory instruction.
The instructions given were abstract because, as a matter of law, upon the undisputed evidence there was no question of wilful, wanton or intentional injury to be submitted to the jury. Moreover, the casting of the cooler from the car was clearly an act out of the scope of the foreman’s employment. If the cooler belonged to the foreman as proof tends to show, he could do as he pleased with it; and if he negligently cast it from the car, it was his act, and not that of the company. His employment with the company was that of building bridges. So far as the proof discloses, there is nothing to show that it was in the line of the duty of the foreman of the bridge gang to provide appointments for the cars in, which he was. transported from place to place. The burden was upon the appellee to show appellant’s liability. To discharge this burden it was incumbent upon appellee to show that the act of the servant causing the injury was negligent and in the course of his employment. St. Louis, I. M. & S. Ry. Co. v. Grant, 75 Ark. 579" date_filed="1905-06-10" court="Ark." case_name="St Louis, Iron Mountain & Southern Railway Co. v. Grant">75 Ark. 579.
For the error indicated the judgment is reversed, and the cause remanded for further proceedings.