Prescott & Northwestern Railway Co. v. Morris , 92 Ark. 365 ( 1909 )

Wood, J.,

(after stating the facts). The first instruction given at the request of appellee submitted to the jury the question as to whether or not appellee jumped from .the train in order to avoid the peril or injury of a threatened wreck. We do not understand the instructions to assume that there was a threatened wreck, and that appellee apprehended peril therefrom, but left that for the jury to determine. There was abundant evidence to warrant the conclusion that a wreck was threatened, and that appellee abandoned the coach because he apprehended danger in remaining thereon. Appellee testified: “We all got off. We were afraid to risk ourselves any further with it.” “He was afraid to get in the aisle until the others passed out for fear they would run over him.” When some one passed through the car and said: “The coach is broken loose and is going into the Ozan bottom,” the passengers began leaving the train, and all left it. The evidence indicates that they left it in a hurry. The train was set free at the top of the grade. There were no lights on the coach. The brakeman whose duty it was to set the 'brakes had gone. An effort to stop the cars by throwing chunks under the wheels had failed. The cars, two of them, were loaded with logs.

There was no error in allowing the jury, under these circumstances, to determine whether appellee left the train on account of the peril' he apprehended from a threatened wreck. The instruction would not be erroneous, even if it assumed that a wreck to the train under such circumstances was threatened. ' For the evidence was undisputed, and that was the only reasonable conclusion to be drawn from it. The passengers, it appears, did all come to the conclusion that a wreck was threatened, else why should they have abandoned the train in such haste? It was not error to submit to the jury the question as to whether the coach and cars were under the control of the trainmen at the time appellee jumped off. The court might also have assumed that the cars were not under control as an undisputed fact from the evidence. But it is clear from the concluding part of the instruction that the question was submitted to the jury. If the facts existed as recited in the first part of the first instruction, and appellee was injured under circumstances there detailed, the negligence of appellant was established, and the appellant therefore can not complain because the court told the jury that these facts, if proved, make a prima facie case of negligence. Appellant was not prejudiced by the instruction in this respect. It was really more favorable to appellant than it had the right'to ask.

The undisputed evidence showed that the engineer set the brakes on the engine so taut that when the other cars in the train moved back, taking out the slack, the engine could not move with them, and this caused the link or pin to break. Then when the cars began to roll, there was no one on the train to set the brakes on the moving cars, the brakeman having left his post. These uncontroverted facts proved negligence on the part of appellant, and the jury were warranted in finding that there was no contributory, negligence on the part of appellee. ' The issues were fairly submitted to the jury, when the charge is considered as a whole, and there was evidence to sustain the verdict.

Let the judgment be affirmed.