125 Ark. 428 | Ark. | 1916
(after stating the facts.) Counsel for appellant contend that there was no evidence to support. the verdict and that the instruction given by the court was erroneous for the reason that the lookout statute has no application. They say that while it is true that the employees of appellant discovered the appellees approaching the house track, yet the undisputed evidence shows that these employees did not discover that the mules were frightened and beyond the control of the appellees until it was too late for the employees, using all the means at their command, to stop the engine; that, although the fireman had discovered the wagon approaching the house track and the crossing, he did not know that appellees were ignorant of the approaching engine and did not know that appellees would not stop before undertaking to cross the track; that appellees did in fact stop, and the' mules became frightened when it was too late for the employees to stop the train.
These contentions of the learned counsel are not tenable. There is an irreconcilable conflict between the testimony on behalf of the appellees and that of appellant on the issues of fact. And, besides, appellant’s witnesses contradict each other, and the testimony of some of them is inconsistent and contradictory in itself. In this hopeless conflict of the evidence, whether or not appellant’s servants were keeping a lookout, and whether or not they discovered that appellees were in a perilous position, or in the exercise of ordinary care might have discovered them in time to have avoided the injury, were issues of fact which it was the peculiar province of the jury to determine. The evidence is fully set forth in the statement, and it shows that there was substantial testimony to warrant the finding in , favor of appellees on these issues.
The instruction given by the court was applicable to the facts presented, and correctly stated the law in conformity with many decisions of this court. Central Railway Co. of Ark. v. Lindley, 105 Ark. 294; St. L., I. M. & S. R. Co. v. Gibson, 107 Ark. 431; St. L. & S. F. Rd. Co. v. Champion, 108 Ark. 326; St. L. Sw. Ry. Co. v. Wilson, 119 Ark. 36.
Appellee Everett received a serious and painful injury to his shoulder, from which he had not recovered at the time of the trial, and which the attending physician stated might be permanent. Likewise the appellee Moye had received a severe and painful injury in his head, which had caused him much suffering, and from which he was also suffering at the time of the trial. A period of nearly a year and a half had elapsed from the time of the injuries, during which time the appellees had not only been suffering continuous pain, but, on account of these injuries,’ they had been only able to do about half as much farm work as they had done before the injuries were received. Under these circumstances we cannot say that the amount of the verdicts evidenced any passion or prejudice on the part of the jury.
The remittitur cured the excess in the amount of damages assessed for injury to the property.
There is no reversible error in the record, and the judgments must be affirmed.