# St. Louis Southwestern Railway Co. v. Clemons

> Supreme Court of Arkansas · May 29, 1967 · 242 Ark. 707

URL: https://www.frixlaw.com/law-library/cases/9858432

## Case

- **Full name:** St. Louis Southwestern Railway Co. v. Earl B CLEMONS, Etc.
- **Court:** Supreme Court of Arkansas
- **Decided:** May 29, 1967
- **Citations:** 242 Ark. 707; 415 S.W.2d 332; 1967 Ark. LEXIS 1311
- **Precedential status:** Published
- **Opinion:** Dissent by FoglemaN
- **Judges:** Brown, Ward, Byrd, Fogleman
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9858432

## How later opinions describe it (automated extraction)

- 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

## Opinion text

JohN A. FoglemaN, Justice, dissenting.. I dissent only as to the remand of this case.
I agree with the academic statements of the majority with reference to remand of a law case-for a new ■trial. The great' difficulty is that none of them are applicable here. The statement from Pennington v. Underwood, 56 Ark. 53 , 19 S. W. 108 , is dictum. The court entered judgment for the defendant here instead of remanding.
I have found two cases where this court, under what were declared to be unusual circumstances, remanded a case for a new trial upon a reversal for failure of the trial court to direct a verdict. Reynolds Metals Company v. Ball, 217 Ark. 579 , 232 S. W. 2d 441 ; Hayes Brothers Flooring Co. v. Carter, Adm’x, 240 Ark. 522 , 401 S. W. 2d 6 . On the other hand, there are numerous cases which were dismissed upon such a holding here. Some of them are: Arkansas Cotton Oil Co. v. Carr, 89 Ark. 50 , 115 S. W. 925 ; Arkansas Natural Gas Co. v. Gallagher, 111 Ark. 247 , 163 S. W. 791 ; American National Ins. Co. v. Hamilton, 192 Ark. 765 , 94 S. W. 2d 710 ; Temple Cotton Oil Co. v. Brown, 198 Ark. 1076 , 132 S. W. 2d 791 ; Southwestern Bell Tel. Co. v. Casson, 199 Ark. 1140 , 138 S. W. 2d 406 ; Kroger Grocery & Baking Co. v. Kennedy, 199 Ark. 914 , 136 S. W. 2d 470 ; Missouri Pac. R. Co. v. Moore, 199. Ark. 1035, 138 S. W. 2d 384 ; Pacific National Fire Ins. Co. v. Suit, 201 Ark. 767 , 147 S. W. 2d 346 ; Tucker Duck & Rubber Co. v. Harvey, 202 Ark. 1033 , 154 S. W. 2d 828 ; Twin City Pipe Line Co. v. Butler, 203 Ark. 240 , 156 S. W. 2d 222 ; Brotherhood of Railroad Trainmen v. Drake, 204 Ark. 964 , 165 S. W. 2d 947 ; Woodard v. Holliday, 235 Ark. 744 , 361 S. W. 2d 744 ; Twin City Amusement Co., Inc. v. Salater, 237 Ark. 206 , 372 S. W. 2d 224 .
It is true that in each one of the latter cases the court made the usual comment about the case having been fully developed, hut I think the statement would be just as appropriate here. Be that as it may, I feel that this is an action which brings about an unfair situation. If the trial judge had directed a verdict, as we say he should, we would have affirmed and there would have been no chance for appellee to have a. second attempt at his proof. Thus we have put a premium for plaintiffs on the erroneous failure of a trial judge to direct a verdict. This produces, in my opinion, a wholly undesirable and indefensible result and one that will haunt trial judges and this court from henceforth.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9858432. Public record. Not legal advice.