83 Ark. 356 | Ark. | 1907
(after stating the facts.) The appellants’ abstract shows “there was other testimony about the manner of stopping the train.” But it does not set out this testimony. Nor does the abstract contain the statement that the instructions set forth were the only instructions given by the court. There is no statement in -the abstract to the effect that a motion for new trial calling attention of the court to the errors reserved was presented and overruled.
The abstract is so imperfect that we are not able to say without exploring the transcript, individually or collectively, that the judgment upon the whole case is erroneous. The “other testimony about the manner of the stopping of the train” might show that there was no negligence in the manner of the starting of the train again rafter it had stopped, and that the jerk of which appellants complain was incident and necessary to the train’s movement in its ordinary and usual operation. It is not the case of showing simply the injury caused by the running of the train, leaving the railway company to remove the presumption of negligence which would follow. But the affirmative statement is made that there was other testimony, which, we must presume, in the "absence of the testimony -or a statement of its substance, sustains the judgment of the court. While it appears that some of the instructions in themselves were not correct declarations of the law, yet it is impossible, in the absence of the court’s charge as a whole, to say whether the giving of those set forth was prejudicial error. Under several decisions of this court, the abstract wholly fails to comply with rule nine. Barringer v. St. Louis, I. M. & So. Ry. Co., 73 Ark. 548; Carpenter v. Hammer, 75 Ark. 347; Shorter University v. Franklin, 75 Ark. 571; Merritt v. Wallace, 76 Ark. 217; St. Louis, I M. & S. R. Co. v. Boyles, 78 Ark. 374.
Appellants have not offered to perfect their abstract, and nothing remains but to affirm the judgment. It is so ordered.