137 Ark. 107 | Ark. | 1919
(after stating the facts).
It is true the collision occurred on account of the negligence of the servants of the railway, company but Earl Webb, according to the undisputed evidence, was riding on the train without lawful right to do so and the servants of the company owed him no duty except the exercise of ordinary cafe to avoid injuring him after discovering his perilous situation. St. Louis Southwestern Ry. Co. v. McLaughlin, 129 Ark. 377, and cases cited, and Tyler, Admr., v. St. L., I. M. & S. Ry. Co., 130 Ark. 583.
Earl Webb being a trespasser, his minority was immaterial since the railway company would nof be liable unless it discovered his peril in time to have avoided injuring him. Arkansas é Louisiana Ry. Co. v. Sain, 90 Ark. 278. According to the principles of law laid down in the above mentioned cases the burden of proof in this case was on the plaintiff. These principles of law are conceded by counsel for the plaintiff, but he insists that the court should have submitted to the jury the question of whether or not the servants of the southbound freight train discovered Earl Webb on the train in time to have avoided injuring him by the exercise of ordinary care. His contention is based upon the fact that Yerna Byrd testified that the trainmen did see him and that it is fairly inferable that they also saw Earl Webb. We do not agree with counsel in this contention. According to the testimony of Yerna Byrd, the boys were all playing around the water tank, but they did not all get on the train together. He was standing on the outside of the coal car when the brakeman saw him. The other boys were hidden on the inside of the coal car which was loaded with piping, and there is nothing in the testimony as it appears in the record to wafrant a jury in finding that the trainmen knew that Earl Webb was also on the coal car. Even if they saw Sydney Cecil, the companion of Verna Byrd, climb out of the coal car and jump off of it at the time Verna Byrd got off, this would not tend to prove that there were other boys concealed in the coal car loaded with the pipe.
Again counsel for the plaintiff insists that the judgment should be reversed on the ground of newly-discovered evidence. She filed with her motion for a new trial the affidavits of two residents of Mena that- they went to the scene of the collision from the city of Mena after it occurred, and that while there they had talked with one of the brakemen of the southbound freight train who told them that he had put the boys off at the water tank and that they had gotten back on the train again. This testimony would not have been competent. The declaration of the brakeman did not accompany the act from which the injuries arose and was not explanatory of anything in which he was then engaged, but it was a mere narrative of a past occurrence.' Again his employment did not carry with it authority to make declarations or admissions at a subsequent time as to the manner in which he performed his duty. River, Rail & Harbor Construction Co. v. Goodwin, 105 Ark. 247; Caldwell v. Nichol, 97 Ark. 420; Stecher Cooperage Works v. Steadman, 78 Ark. 381; Railway Co. v. Sweet, 57 Ark. 287.
Moreover no reason is given by the plaintiff why she could not have procured this testimony at the trial. Both of the affiants were residents of the city of Mena and one of them was a witness in the case.
We find no prejudicial error in the record and the judgment will be affirmed.