74 Ark. 610 | Ark. | 1905
(after stating the facts.) .1. The evidence is fully- set out. Giving the appellee the benefit of its utmost probative force, which is the rule here, we do not feel warranted in saying that the verdict is excessive.
2. The contention that the instruction was erroneous in assuming that, appellee was rightfully in the place where he was injured, and that appellee could not recover unless the proof showed gross and wanton negligence on the part of appellant, is not correct. The complaint alleges “that the accident did not occur through any fault of his (plaintiff), but that he was passing along Memphis avenue, through which defendant’s track is laid. The appellant denied that plaintiff “was passing Memphis avenue, through which defendant’s track is alleged to be laid.” It will be observed that appellant does not deny that its track was laid through Memphis avenue. Therefore it appears that appellant’s track was laid on Memphis avenue. The proof shows that Underwood was passing along by the side of the train, by the baggage car. We gather from the evidence that appellee, Underwood, was walking on the ground or walk by the side of the train and by the baggage car from which the trunk was thrown. His sister, who was near them, says: “There were a great many along, and iny brother was right along behind,” etc. The allegations of the complaint and the evidence show that at the time of his injury appellee was upon Memphis avenue, a public thoroughfare. “An avenue is a passage; a way or an opening for entrance into a place; any opening or passage by which a thing is or may be introduced or approached; 2, a roadway; 3, a street”: Century Dictionary. “Avenue”, “a broad street”: Webster’s Dictionary. “A street”: March’s Thesaurus of the English Language. “A street is a road or public way in a city, town, or villageElliott, Roads and Streets.
In St. Louis, I. M. & S. Ry. Co. v. Neely, 63 Ark. 636, the railway company was operating and moving one of its freight trains on and along Elm street in the town of Warren. ' At this time Neely was returning from his residence to his office on the same street. While the freight train was passing him, a car door fell upon him from its place in a car in the train, and inflicted an injury. In that case we said: “Here the appellee was upon a public street at the time he was hurt. He was no trespasser. The railroad company owed him the duty to employ reasonable means and exercise reasonable care to avoid injuring him.” This doctrine rules the case at bar, rather than the principle invoked by appellant that the railway company owed appellee no duty except to use ordinary care not to injure him after having discovered his place of peril, or, in other words, that it was the duty of the railway company only to avoid such gross and wanton negligence as was equivalent to a willful or intentional injury. The rule established by the authorities cited by appellant is applicable only in the case of a trespasser. It is not applicable to the undisputed facts of this record. The court did not err, therefore, in assuming that appellee was rightfully in the place where he was injured, and in refusing the request of appellant for an instruction to the effect that appellant was not liable unless its employees inflicted the injury upon appellee with “willful and wrongful intention.”
Affirm.
