St. Louis, I. M. & S. R. Co. v. Hairston

• Citation: 188 S.W. 838
• Decision Date: 02 October 1916
• Docket Number: (Nos. 172, 183.)
• Parties: ST. LOUIS, I. M. & S. R. CO. v. HAIRSTON et al.
• Court: Supreme Court of Arkansas

188 S.W. 838

ST. LOUIS, I. M. & S. R. CO. v. HAIRSTON et al.

(Nos. 172, 183.)

Supreme Court of Arkansas.

October 2, 1916.

Appeal from Circuit Court, Pope County; M. L. Davis, Judge.

Consolidated actions by Benjamin Hairston, by next friend, and another, against the St. Louis, Iron Mountain & Southern Railroad Company. From judgment for plaintiffs, defendant appeals. Reversed.

Thos. B. Pryor, of Ft. Smith, and W. P. Strait, of Morrillton, for appellant. Hays & Ward, of Russellville, for appellees.

SMITH, J.

Suits were brought for Benjamin Hairston, a minor about 18 years old, by his father as his next friend, and by his father on his own account, to recover damages to compensate a personal injury caused by a freight car of appellant's train running over and crushing one of the boy's feet. The suits were consolidated and tried together, and judgments for substantial sums — which however, appellant does not complain against as excessive — were rendered in both cases.

The evidence in the case is sharply conflicting, and no attempt is made to reconcile it. According to the boy, his injury occurred under circumstances which warrant a finding of liability against the railroad company; while, according to the evidence of the company, there was no liability whatever. The cause appears to have been submitted to the jury under proper instructions, and under the well-established rule, that we do not pass upon questions of mere preponderance of the evidence, we would affirm the judgment of the court below as being sustained by legally sufficient evidence if only the question of the sufficiency of the evidence was involved. Seven witnesses testify as to the circumstances under which young Hairston was injured. According to his own testimony, he had beaten his way on a freight train from his home in Morrillton to Russellville, and was returning home from Russellville in a box car, with two companions, all of whom were "beating their way." Two brakemen, who were stationed in the caboose about 15 cars behind the box car in which appellee and his companions took passage, observed their presence there, and one of these brakemen, a man named Young, went to this car and ordered Hairston and his companions out of it. That this demand was given to him after he had told the brakeman that he had no money to pay him, but the brakeman, with profane language and menacing threats, compelled him to climb out of the door of the car, and while he was so doing the brakeman threw some object at him which struck him on the forehead and rendered him unconscious, and when he regained consciousness he found that he had fallen under the train and that his foot had been crushed. He admitted that he had at first explained his injury by stating that the brakeman had kicked him in the face and had caused him to fall. The almost physical impossibility of this last statement is apparent when the relative situation of the parties is considered, the brakeman being on top of the car while Hairston was climbing out of the side door. Hairston made no attempt to reconcile his conflicting statements, except to say that when he made his first explanation he was only talking, while at the trial he was "swearing now."

According to the evidence of his two companions, Hairston debarked from the car in safety, and was injured as he attempted to catch another car; that Hairston was an expert in catching trains and had been seen frequently to catch trains running faster than this train was going at the time of his injury. These companions of Hairston are substantially corroborated by the brakemen, and also by a farmer and his son who witnessed the injury from their field where they were at work.

Some conflict appears in the evidence of witnesses for appellant as to whether Young's head was lying towards the north or the south as he looked into the car where the boys were riding, and much importance is attached to this discrepancy by counsel, who insists that because of it the jury disregarded most of the evidence which was in conflict with that of Hairston.

It is urged that error was committed in permitting a doctor who had examined Hairston's injuries to testify without having been sworn. This question was raised for the first time after the verdict had been returned. Counsel explained the failure to raise the question earlier by stating that they were not advised of the fact sooner. The integrity of the trial cannot be thus defeated. The case does not present the question of a witness who was permitted to testify after refusing to be sworn, or of the grant of permission to a witness to testify without having first taken the oath prescribed by law. It is a mere case of inattention for which, no doubt, appellant is as much responsible as the appellee. At any rate, the error is one which appellant could easily have avoided, and it is therefore one of which it is now in no position to complain. Similar questions have been raised in regard to jurors who have been permitted to serve who did not possess the qualifications required by law, and in such cases it has been uniformly held that where no imposition was practiced, whereby the juror was permitted to serve, that complaint would not thereafter be heard when no effort had been made to elicit from the juror the facts from which his incompetency would have appeared. Brown v. St. L., I. M. & S. R. Co., 52 Ark. 120, 12 S. W. 203; James v. State, 68 Ark. 464, 60 S. W. 29; Casat v. State, 40 Ark. 515. We must so hold in regard to this witness.

The record contains the following recital:

"In his closing argument to the jury, A. S. Hays, one of the attorneys for the plaintiff, stated to the jury: `Gentlemen, Judge Bullock said we should all be honest. Yes, we ought to be. But I state to you that the defendant is not honest in this case and is trying to avoid payment of its just liability. Now, in the Burriss Case the railway company admitted its liability but denied the plaintiff was injured. In this case, it admits the injury but denies the liability. No, gentlemen, the railway company don't admit liability and injury both in the same case.'"

Whereupon the attorney for the appellant objected to the above statement, when Mr. Hays, said:

"I am making this statement in answer to Judge Bullock's remarks awhile ago about honesty of the parties.'

An objection was thereupon overruled by the court. Whereupon Mr. Hays turned to the...