Goosby v. Crossett Lumber Co. , 91 Ark. 86 ( 1909 )

Hart, J.,

(after stating the facts). Counsel for appellant assigns as error the action of the court in instructing the jury as a matter of law that appellant was guilty of contributory negligence in riding upon the pilot of the engine, although the conductor or engineer told him to do so.

In support of their contention of the correctness of the ruling of the trial court, counsel for appellee rely chiefly on the case of Railroad Company v. Jones, 95 U. S. 439; but the facts developed in the present case are more nearly like those in the case of El Dorado & B. Rd. Co. v. Whatley, 88 Ark. 20. In the Jones case the servant was returning from work on the main line of the railway company, which was a common carrier, where the meeting of trains and the consequent danger from running into other trains was much more imminent than in the present case. In the instant case, appellant testified that the engine always run backward on its return to the camp; that it was customary for employees to ride upon the pilot, and that it had ■been fitted up with a flat top extending forward from the front of the boiler for that purpose; that but one train ran on the track, and that he understood the engine would start back to the camp when it moved. Under these circumstances, the court should have left i-t to the jury to say whether he was guilty of contributory negligence; for they might have found that there was no more reason for him to anticipate danger in riding on the pilot § than on any other part of the.train. It is only when the court can say from the facts and circumstances detailed in evidence that reasonable and fair-minded men could not believe that the plaintiff was acting as an ordinarily prudent person would have acted under the attendant circumstances that the question of plaintiff’s contributory negligence is one of law for the court. As stated in the case of El Dorado & B. Rd. Co. v. Whatley, supra: “Upon the facts of this case reasonable minds might reach different conclusions as to whether the danger of riding the pilot was such an imminent and obvious one that no prudent man would undertake it.”

Therefore the court erred in taking from the jury the question of plaintiff’s contributory negligence, and for this reason the judgment must be reversed, and the cause remanded for a new trial.