Jonesboro, Lake City & Eastern Railroad v. Gainer

Wood, J., (after stating the facts}. 1. The testimony admitted over the objection of appellant did not tend to establish a custom for loggers to use handcars on appellant’s road for the purpose of hauling feed. The ruling of the court in permitting the questions objected to and the answers of the witnesses was in no wise prejudicial to appellant. 2. Witness Metcalf, who was the fireman on the engine of appellant, was called by the counsel for appellee, and testified that the headlight was not lit. He did not know whether there was any one on the front of the cars or not. He saw one stop signal and a white light just as he got on the seat box. The light looked to be on the flat car. He saw the stop signal given with a white lantern, but did not know who gave it. It was between 7:30 and 8 o’clock; had not been dark very long. The light looked to 'be on the flat car. He was then asked by counsel for appellee the following question: “Didn’t you say a few minutes ago, in the back room to me, in response to a question, if there was any one on the lookout, you didn’t know it?” and answered, “I said a headlight, but I saw a stop signal given with a lantern by some one.” Counsel for appellee, being surprised by the testimony of witness Metcalf, called the witnesses and asked them whether or not they were in the witness room, and asked them whether or not they heard counsel ask Met-calf if there was any one or any headlight on the flat cars in front of the engine, to which the witnesses, over objection of appellant, answered in the affirmative, and the witnesses were further asked what Metcalf said, and answered, “He said if there was, he didn’t know anything about it.” There was no error in the admission of this testimony. Where a party is taken by surprise at the testimony of his own witness, such testimony being entirely different from what the witness had given the party calling him to understand that his testimony would be, the party who is taken by surprise, and who is prejudiced by the testimony of his own witness, may contradict bim with other evidence, and by showing that he had made statements different from his present testimony, provided the proper foundation is laid for contradiction of the witness by calling his attention to the circumstances of the time and place, etc. Ward v. Young, 42 Ark. 553. Here the proper foundation was laid and the testimony was competent for the purposeof contradicting witness Metcalf whose testimony was a surprise to the appellee, inasmuch as he made a different statement to appellee from the testimony given at the trial. 3. The instructions of the court on the headlight and lookout statutes were in conformity with the law as announced by this court in the construction of the statutes in the recent case of Chicago, R. I. & P. Ry. Co. v. Bryant, 110 Ark. 209,162 S. W. 51. See, also, Chicago, R. I. & P. Ry. Co. v. Gunn, Admr., 112 Ark. 401. And it could-serve no useful purpose to reiterate the doctrine announced in the foregoing cases. The question as to whether or not the statute creates an absolute liability for failure to comply with its terms, and whether or not such failure is negligence per se or only prima facie evidence of negligence is not presented by this record. Appellant made no specific objection to the instruction, and if it desired a ruling on the question as to whether or not the failure to provide a headlight as required by the statute made the company absolutely liable! for an injury resulting therefrom, appellant should have made a specific objection to the instruction to the effect that it did not make appellant’s liability depend on its negligent failure to provide the headlight and to keep the lookout required. Furthermore, the uncontradicted evidence showed that the engine was only provided with a headlight of between eleven and thirteen hundred candle-power, when the statute requires a headlight of fifteen hundred candle-power. See Acts 1907, page 1018. Again, the testimony showed that the reason that such headlight as was provided did not burn to its full capacity was because the engine was not carrying sufficient steam. The engineer testified, “Our fuel was not very good that day, and sometimes it takes considerable heat to heat up the coring in the headlight. If the core is not heated, it has a tendency to cause the light to flash. 4. There was no prejudicial error in the rulings of the court in giving or refusing prayers for instructions, or in the admission or rejection of testimony, and there was ample evidence to sustain the verdict. The judgment is therefore correct, and it is affirmed.