Barry v. Kansas City, Fort Scott & Memphis Railroad

91 S.W. 748, 77 Ark. 401, 1906 Ark. LEXIS 6

Opinion

Wood, J.,

(after stating the facts.) The uncontradicted proof shows that appellant’s intestate was guilty of contributory negligence, which, under many decisions of this court, bars recovery, unless it appears that appellees could by ordinary prudence have avoided the injury after discovering his perilous situation. There is no proof that appellee had discovered the dangerous position of the deceased. The most that could be said of the proof on this point is that appellee by the use of ordinary care might have observed the peril of the deceased in time to have avoided the injury. But this under our decisions will not make the company liable where the deceased was also guilty of negligence contributing to the injury. Johnson v. Stewart, 62 Ark. 164; St. Louis, I. M. & S. Ry. Co. v. Leathers, 62 Ark. 235; St. Louis S. W. Ry. Co. v. Dingman, 62 Ark. 245; St. Louis, I. M. & S. Ry. Co. v. Taylor, 64 Ark. 367; Hot Springs Street Ry. Co. v. Johnson, 64 Ark. 420; St. Louis & S. F. Ry. Co. v. Townsend, 69 Ark. 380; St. Louis, I. M. & S. Ry. Co. v. Evans, 74 Ark. 407; Little Rock Traction & Electric Co. v. Kimbro, 75 Ark. 211; St. Louis S. W. Ry. Co. v. Cochran, ante, p. 398.

Affirm.