Arkansas Central Railroad Company v. Morgan

• Decision Date: 07 May 1917
• Docket Number: 362
• Citation: 195 S.W. 403,129 Ark. 67
• Parties: ARKANSAS CENTRAL RAILROAD COMPANY v. MORGAN
• Court: Arkansas Supreme Court

195 S.W. 403

129 Ark. 67

ARKANSAS CENTRAL RAILROAD COMPANY v. MORGAN

No. 362

Supreme Court of Arkansas

May 7, 1917

Appeal from Logan Circuit Court, Northern District; James Cochran Judge; affirmed.

Judgment affirmed.

Thos B. Pryor, for appellant.

1. There was misconduct of certain members of the jury and the attorneys for plaintiff. 62 Ark. 91; 27 Okla. 373; 16 Tex Civ. App. 127; 11 Ga. 203; 17 Id. 364, 414; 7 Phila. 167; 15 Neb. 330; 18 N.W. 73; 23 Neb. 171; 36 N.W. 583; 12 Kans. 539; 51 Ind. 299; 8 Oh. C. C. 244; 45 F. 542; 13 Ill.App. 653; 12 Id. 531; 2 Idaho 1022; 34 Ga. 379; 29 Cyc. 803.

2. The court erred in refusing to give peremptory instruction requested by defendant. The evidence shows no liability whatever. 60 Ark. 429; 46 Id. 513.

3. The court erred in giving instruction No. 4. It was specifically objected to and conflicts with Nos. 1, 2 and 3, given on the court's own motion. 93 Ark. 140, 578.

4. The court erred in refusing No. 3 asked by defendant on contributory negligence and trespassers. No. 5 as to "due care" was also error. No. 13 requested on "ordinary care" should have been given. There is error also in refusing No. 11 on contributory negligence.

Robert J. White, for appellee.

1. There is no reversible error in the alleged misconduct of jurors and attorney. It was harmless and no harm intended. It was not prejudicial. 11 N.E. 250; 29 Cyc. 813; 20 S.W. 1075; 79 Ill. 303; 3 S.W. 854; 75 Mo. 672; 178 S.W. 1167; 96 N.E. 815; 97 Id. 80; 86 Id. 636; 95 Id. 328; 68 Id. 69; 53 Id. 208; 138 Mass. 79; 58 N.E. 854; 48 Id. 234; 40 Id. 650; 35 Id. 668; 29 Id. 219.

2. Defendant certainly was not entitled to the peremptory instruction. 102 Ark. 419; 88 Id. 484.

3. Instruction No. 4, given, stated the law and was properly given. 119 Ark. 300; 102 Id. 300; 102 Id. 421; 46 Id. 523; 89 Id. 496.

4. Instructions 1, 2 and 7, correctly declare the law. "Due care" is "ordinary care." 65 Ark. 624. Nor is there any error in 5 and 6. 99 Ark. 422.

5. No. 11 asked by defendant was properly refused. Contributory negligence was not a defense. In No. 1 given for plaintiff, declared him a trespasser and guilty of contributory negligence. 99 Ark. 422.

OPINION

SMITH, J.

Appellee is a deaf-mute, and sustained a serious injury by being run down by a motor car, operated by appellant's employees. This appeal is prosecuted to reverse the judgment in his favor for $ 1,500, which he recovered in his suit for damages. The case was tried upon the theory that his presence and peril was discovered by the operatives of the motor car in time to avoid injuring him. In the first instruction given by the court, the jury was told, as a matter of law, that appellee was a trespasser, and that the railroad company owed him no affirmative duty to take care of him, but that it did owe him the duty, after discovering his perilous position, although he was a trespasser, "to exercise the care that an ordinary, careful and prudent man would have exercised under similar circumstances to prevent injuring plaintiff," and that, if this was not done, to find for him. The railroad company had no right to demand a more favorable declaration of the law.

Appellee testified that the motor car was being operated by a section crew, and that, when he passed them, while they were at work on the track, he informed them, by signs, that he was going to pick blackberries, and put them in buckets he was carrying on his arms, and that he walked on down the track for a distance of about a mile and a half to the point where he was struck by the car. A member of the section gang testified that they understood from appellee's signs, when he passed them, that he was going down the track to pick berries, and that, as the section gang approached appellee, on the motor car, witness's attention was attracted to appellee's presence by the remark of another member of the gang to their foreman, that the man on the track was the deaf and dumb man, and that this member of the crew called to the foreman the second time before he pushed the lever which applied the brakes, but he could not tell whether the brakes were sufficiently applied to reduce the speed of the car, and that the last time he looked at the man, they were 150 yards from him, and were running at the rate of 15 or 20 miles per hour, at which time he called to appellee, and, when he saw they were going to strike appellee, witness jumped from the car, which ran on and knocked appellee down, and ran over him. Instructions asked by appellant told the jury that the operatives of the motor car had the right to proceed on their way without checking the speed of the car until it became apparent to them, in the exercise of ordinary care, that appellee would not leave the track; and the instructions on this phase of the case were as favorable as appellant had the right to ask.

The evidence on the appellant's behalf was to the effect that as soon as they became aware of appellee's peril, they used all means within the power of the operatives of the car to avoid injuring him. But we think the evidence summarized warranted the jury in finding that the proper degree of care was not used to avoid this injury.

Appellant complains of the action of the court in telling the jury that "the care for his own safety required of plaintiff is the care that a man of ordinary care and prudence, situated as he was, would have used under the circumstances of the plaintiff, and negligence is a lack of such care as above described." The ground of the objection is that it did not exact of appellee the duty to use ordinary care for his own safety, but only to use "the care that a man of ordinary care and prudence, situated as he was, would have used under the circumstances of the plaintiff." In answer to this objection, it may be said that, without reference to the degree of care which appellee should have used for his own safety, it was the duty of the operatives of the car to avoid striking him if they could do so by exercising due care after discovering his peril; and we need not, therefore, consider this instruction.

Having carefully considered the instructions given and refused, it suffices to say that the law was declared, in the instructions given, as favorably to appellant as it could have required; and we proceed to the consideration of the real question in the case. St. Louis S.W. Ry. Co. v. Murphy, 125 Ark. 507, 188 S.W. 1180.

This case had been tried at a former term, and a mistrial had resulted. At the trial from which this appeal is prosecuted, Sid White assisted his father, R. J. White, in the trial of the case, and made the opening argument. At 10 P. M., after the argument of counsel, the jury reported that they were unable to agree upon a verdict, whereupon they were permitted to separate after the usual admonition of the court against talking to any one about the case or permitting any one to talk to them. In support of the motion for a new trial, because of improper influence exerted upon the jury by appellee's counsel, J. H. Wright, president of the appellant railroad company, testified that, as the jurors were leaving the court room, his attention was called to the fact that Sid White was closely following J. A. Freeman, a juror, and that his suspicion was aroused, and that he followed White and the juror and observed them walking together in the direction of White's office, and that he watched them until they disappeared in or around the corner of the building occupied by White as an office, and that he requested a Mr. Fernandez to join him in his observations, and he and Fernandez observed White and the juror walking down the middle of the street leading a horse, and White and the juror proceeded down the street in the direction of White's residence until they passed out of the view of the observers. It was also shown, without denial, that White and the juror went to a lot near White's office, and got a horse which the juror had ridden to town, and White and the juror went back to White's residence, where the juror left his own horse, and White loaned him an older and a gentler horse, and that this was done because the juror's horse was young and not well broken.

Upon behalf of appellee, it was shown that White and the juror had been school mates, and long time friends, and that the courtesy was without significance, and that the case on trial was not referred to in any manner. It was shown, also, that no complaint at the conduct of counsel was made to the court until after the return of the verdict.

The subject of misconduct of the jury is one which frequently arises in this country, due largely, no doubt, to the practice, more or less prevalent in the different States, of permitting jurors to separate during the...