stating that “willful and wanton misconduct is, as a matter of law, higher in degree than gross negligence” and also described “willful and wanton disregard” as a degree of negligence
How later courts described this case
- stating that “willful and wanton misconduct is, as a matter of law, higher in degree than gross negligence” and also described “willful and wanton disregard” as a degree of negligence
- plaintiff failed to produce evidence that railroad employees knew or should have known a condition would result in injury
Written by the judges who cited it.
The opinion
Paul Ward, Justice, dissenting. For reasons set out below, I do not agree with the majority opinion.
(a) Marion Lee Clemons testified he was injured by a long metal strip attached to appellant’s car. There is no direct testimony to the contrary.
(b) The undisputed testimony is that such strips are used in the regular.course of appellant’s business, and that they sometimes hang loose.
(c) There is no direct testimony that this particular car was inspected on this occasion and found in a safe condition.
(d) It cannot with reason be argued that such loose hanging strips would not constitute a serious hazard to a person on the right-of-way.
(e) It is not contended that this hazard was the result of the condition of appellant’s premises, i. e. the right-of-way.
(f) It is only reasonable to- assume that people do frequently walk on a railroad right-of-way, and that appellant is aware' of this fact.
In view ■ of the above factual situation, which is a matter for the jury only to consider, it is my conclusion that the case should be affirmed if the jury was justified in finding appellant was guilty of ordinary (not wanton and willful) negligence. This is in accord with our recent holding in the case of George Lee Tatum v. Rester, 241 Ark. 1059 , 412 S. W. 2d 293 .
Bykd, J., joins in this dissent.