Mosley v. Mohawk Lumber Co.

Kirby, J., (after stating the facts). It is contended that the court erred in denying the motion for a change of venue, in giving said instruction No. 4, and in admitting the testimony of the manager of the defendant corporation, relative to his instructions to the deceased in a suit by his administratrix. (1) The law leaves the matter of granting a change of venue in civil actions to the discretion of the trial judge, and permits the opposite party to 'Controvert and resist the petition therefor, and the court’s decision denying such petition will not be reviewed unless it appears to have been arbitrarily made. Act 249, Acts of 1909; St. Louis, I. M. &. S. Ry. Co. v. Reilly, 110 Ark. 182. From-the controverting .affidavits, in support of the response to the motion for a change of venue made by twenty-eight citizens residing in different portions of the county, the court could have found that there was no such undue influence of the defendant, or its stockholders in the county as would prevent plaintiff from obtaining a fair and impartial trial of the cause, and did not err in denying said motion. (2) The assignment that the court erred in giving instruction No. 4, is well founded, and must be sustained. Appellant specifically objected to the portion of said instruction in italics, requiring the plaintiff to show by a preponderance of the testimony that the defective condition of the track was not known to the deceased or could not have been known by (him in the exercise of ordinary care for his own safety in order to a recovery. The objection should have been sustained and ’that portion of the instruction stricken out. The servant does not assume the risk of the master’s negligence, but' only the ordinary risks incident to his employment and the instruction was erroneous in telling the jury that she could not recover unless she showed by a preponderance of the testimony that the defective condition of the track was not known to the deceased or could not have been ascertained by him. in the exercise of ordinary care for his own safety. The fact that the servant could by the exercise of ordinary care have discovered the defect and avoided the danger does not constitute an assumption of the risk where it' arose by reason of the negligence of the master, even though such servant may have been guilty of contributory negligence, which would bar his recovery. C., O. & G. R. Co. v. Jones, 77 Ark. 374; Southern Cotton Oil Co. v. Spotts, 77 Ark. 458; St. Louis, I. M. & S. Ry. Co. v. Birch, 89 Ark. 424; St. Louis, I. M. & S. Ry. Co. v. Corman, 92 Ark. 102; Clark Lumber Co. v. Northcutt, 95 Ark. 291; C., R. I. & P. Ry. Co. v. Smith, 107 Ark. 512. Counsel for appellee insists that notwithstanding this erroneous instruction, no prejudice could have resulted from its being given, claiming that the testimony is undisputed, that deceased had no knowledge of the alleged defective condition of the track, nor could have had by the exercise of ordinary .care for his own safety. (3) Although it is true that the testimony shows that the defect in the track, if any existed, and the testimony is contradictory on that point, was one that could not have been discovered except by inspection; that it would probably not have been discovered by deceased in passing over it in the engine, and that his duties did not require him to make an inspection for its discovery; the jury might still have been misled by the instruction requiring appellant to show, after they found the defective condition of the track was the proximate cause of the injury, by a preponderance of the testimony, the defective condition was not known to the deceased, or could not have been known to him.in the exercise of ordinary care for his own safety. ’ • It is likewise insisted that the uneontradieted testimony ishows that deceased was guilty of contributory negligence, resulting in his death, which barred the right of recovery therefor, land while the evidence does tend strongly to show 'that he was operating 'the train at an unusual rate of speed at the time of the derailment, in violation of instructions, attempting to pull five loaded oars over the track from one hill to the next, instead of three, and that the defective track, or lip in joint, where the trucks began to leave the track, would not probably have caused the wreck, but for the unusual speed of the over-loaded train, we can not say that the uncontradicted testimony shows such fact. The next contention is that the court erred in admitting the testimony of 'the manager of appellee corporation, relative to the directions given by him to the deceased about the operation of the train, and the hauling of loaded cars, this being a suit by his administratrix. It is doubtful if a sufficiently specific objection to this testimony was made, and whether the objection would reach to the incompetency of the witness, but it will be treated as effectual under the 'circumstances. (4) Any objection to particular evidence, on the ground that it is incompetent, does not go to the competency of the witness, as a rule, but a specific objection is generally necessary to raise such questions of competency. Hammel v. St. Louis, I. M. & S. Ry. Co., 113 Ark. 299; Mahoney v. Roberts, 86 Ark. 138; Fakes v. State, 112 Ark. 592; 40 Cyc. 2233, et seq. (5) The statute provides that in actions by or against executors, administrators or guardians, in which judgment may be rendered for or aigainst them, neither party shall be allowed to testify against the other, as to any transactions with, or statement of the testator, intestate or ward, unless called to testify thereto by the opposite party. Kirby’s Digest, § 3093. This statute was only intended to prevent a party to the suit from testifying, under the conditions named, and the manager of 'the corporation was not a party to the suit, within the meaning of the statute, which does not provide that persons interested in the result of the litigation shall be excluded from testifying. The corporation, the Mohawk Lumber Company, was the defendant in the suit, and the party thereto, and not Wingfield, its general manager. 40 Cyc. 2290; Stanley v. Wilkerson, 63 Ark. 556. For the error in giving said instruction, numbered 4, the judgment is reversed and the cause remanded for a new trial.