St. Louis, Iron Mountain & Southern Railway Co. v. Richardson

113 S.W. 794, 87 Ark. 602, 1908 Ark. LEXIS 124

Opinion

Wood, J.,

(after stating the facts.) The evidence was sufficient to sustain the verdict, that appellant “was negligent in failing to maintain a reasonably safe track, free from low places and defects.”- The testimony of appellant tended to show that the injury to- appellee might have been produced by appellee being “off his balance” while the train was making a curve. But appellee’s evidence was in sharp conflict with this, and the question was one for the jury.

Appellant contends that the court erred in not .submitting to the jury its theory and contention, presented in its prayers numbered five and nine, that the injury was the result of an accident, such as was a usual and ordinary incident to the running of passenger trains. But these prayers were fully covered by instructions four and six given at the instance of appellant. The court did not err in refusing to multiply instructions “announcing in effect the same legal principles.” Hanger v. Evins, 38 Ark. 334; Railway Company v. Thomasson, 59 Ark. 140; Furlow v. State, 72 Ark. 384; Goss v. State, 74 Ark. 33.

The court did not err in giving instruction number one. The instruction announced the correct rule of law applicable to the evidence adduced. The verbiage may not be as explicit as it should be, but the court evidently intended to conform to the rule announced in Railway Company v. Sweet, 60 Ark. 550, and to tell the jury that it was the duty of appellant company to exercise “the highest degree of care which a prudent and cautious man would exercise, reasonably consistent with its mode of conveyance and the practical operation of its road, to provide a reasonably safe track,” etc. Such, we think, is a fair interpretation to be put upon the language of the instruction. If appellant conceived that the verbiage conveyed a different meaning, it should have asked the court to correct it. Not having done so, it is not in a position to complain. St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255; Mt. Nebo Anthracite Coal Co. v. Williamson, 73 Ark. 530; St. Louis, I. M. & S. Ry. Co. v. Bowen, 73 Ark. 594.

The judgment is affirmed.