The principal attack is made on the first instruction, which is copied in the statement of facts. Appellant argues that this instruction is only proper when the negligence of the company is a failure to obey .the lookout statute. Section 6607 of Kirby’s Digest. But counsel are in error in this, for it has been held that, under section 6773 of Kirby’s Digest, placing responsibility upon railroads where injury is done to persons or property by the running of trains, a prima facie case of negligence is made out against the company operating the train by the proof of the injury. Barringer v. St. Louis, I. M. & S. Ry. Co., 73 Ark. 548; St. Louis, I. M. & S. Ry. Co. v. Standifer, 81 Ark. 276.
It is argued that the Barringer case was where injury was caused by the sudden jerk of the' train, and therefore it may have been an injury caused by the running of the train, whereas the injury here was caused by the failure to warn Davis that the stop was a temporary one before the town of Ashdown was reached.
The testimony of Davis is that the station of Ashdown was called in the usual way, and that shortly afterwards the train came to a full stop, and that he was a stranger and unfamiliar with the place, and thought that it was the regular stop for Ashdown, and he started to get off, and just as he was in the act of alighting the .train started, and threw him against the side of it and injured him.
There were two concurring causes which produced his injuries, if his testimony is true: the failure to warn him that the stop was a temporary one, which led him to debark from the train at this place; and second, the movement of the train when he was in the act of alighting -at the place where he had been impliedly invited to alight. The immediate cause of the injury was the movement of the train, and it was proper to apply the prima facie presumption resting upon the company arising from injury resulting from the movement of the train.
The burden of proof was upon the plaintiff to prove failure to warn him of the temporary stop. That was a sharply contested issue before the jury, and the court in another instruction properly put the burden of proof upon him upon this issue.
2. Various other instructions are criticised, but it is doubtful whether any except No. 1 is before the court for review. The motion for new trial contains the following: “The court erred in giving instructions numbered one to..........on behalf of the plaintiff.” It has often been said that exceptions which are not brought forward in the motion for new trial are waived. Young v. Stevenson, 75 Ark. 181. But, as the court has reached .a conclusión that the judgment should be affirmed on the merits, it prefers to place the decision on the questions presented, rather than upon the failure to properly present them.
3. Appellant criticises the third instruction. This is a copy of a statement in Hutchinson on Carriers, which was quoted approvingly by this court in Little Rock Traction & El. Co. v. Kimbro, 75 Ark. 211.
4. The fifth and sixth instructions are criticised; and they are not happy expressions of the true issue of the case. But the court is unable -to see that they could in any way be prejudicial. The court attempted to place before the jury the rights that a passenger would have if the station of Ashdown had been reached, on the theory that Davis had a right to presume that the train had reached Ashdown when this temporary stop was made. To that extent the instructions are right, but they contain general propositions about the duty of the company after the train reached Ashdown that were unnecessary to the issue. But they are correct abstract statements of the law, and could not influence the jury to the detriment of the appellant, as they went to no matter which was in issue between the parties.
5. The seventh instruction is criticised for having this clause therein: “And that such failure so contributed to the injury that it would not have occurred if he had been without fault.” Without such qualification, the instruction would authorize the jury to find against a plaintiff who failed in the exercise of ordinary care, where such failure was not a contributing cause to the injury; it is only negligence which contributes to the injury that defeats recovery. This instruction was considered by the court in St. Louis, I. M. & So. Ry. Co. v. Robert Hitt, 76 Ark. 227. this one being a copy of the fourth instruction in said case.
6. Complaint is made of the eighth instruction. This instruction is a correct statement of the law, and is evidently framed in the language used by Judge Caldwell in speaking for the Circuit Court of Appeals of the 8th Circuit, in Trumbull v. Erickson, 38 C. C. A. 536, 97 Fed. 891.
7. The court gave eight instructions on behalf of appellant. Some of them were more favorable to it than the law authorized. Certainly they presented every phase of the appellant’s case that it was entitled to have presented to the jury.
Judgment is affirmed.
Battue, J., dissents.