Arkansas Midland Ry. Co. v. Griffith

• Decision Date: 27 February 1897
• Citation: 39 S.W. 550
• Parties: ARKANSAS MIDLAND RY. CO. v. GRIFFITH.
• Court: Arkansas Supreme Court

Page 550

39 S.W. 550

ARKANSAS MIDLAND RY. CO. v. GRIFFITH.

Supreme Court of Arkansas.

February 27, 1897.

Appeal from circuit court, Prairie county; James S. Thomas, Judge.

Action by J. B. Griffith against the Arkansas Midland Railway Company for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

J. J. & E. C. Hornor, for appellant. J. H. Harrod, for appellee.

BUNN, C. J.

This is an action for damages for personal injuries received by plaintiff and appellee while a passenger on one of defendant's and appellant's trains, and by reason of the negligence of the latter. The venue was changed on the application of plaintiff from the Monroe circuit court to the circuit court of the Southern district of Prairie county. Trial and judgment against defendant for $3,000.80, substantially the amount claimed, and defendant appealed to this court. The motion for a new trial contains ten several grounds, upon each of which appellant claims the case should be reversed, and is as follows, viz. (omitting the first three, which are in the usual form): "(4) Because the damages assessed by the jury are excessive in amount and not warranted by the testimony. (5) Because the court erred in overruling the motion of the appellant to exclude from the jury the testimony of the appellee as to the value of his services, said motion having been made before said plaintiff left the witness stand, and no foundation was laid for the introduction of the testimony, and the same as given by said appellee was incompetent, irrelevant, and inadmissible. (6) Because the court erred in permitting the appellee to read, as evidence to the jury, tables of mortality, showing the expectancy of one aged 62 years is 7 years, the proof in this cause having disclosed that the plaintiff was, at the time of the accident, a man of feeble health, and his physical condition below the average. (7) because the court erred in overruling the motion of the appellant to exclude from the consideration of the jury said tables of mortality, the testimony of Dr. P. E. Thomas having disclosed that at the time of the accident appellee was not in such physical condition as to render him an insurable risk. (8) Because the court erred in instructing the jury, on motion of appellee and against the objection of appellant, as follows: [Here follow six several instructions given by the court at the instance of appellee, and over the objections of appellant.] (9) Because the court erred in refusing to instruct the jury, on motion of appellant, as follows: `If the jury find from the testimony that the plaintiff is such a man as, from his physical condition, would not be insurable, then they will disregard any evidence as to the probable duration of his life obtained from the tables of mortality introduced in evidence.' (10) Because the court, on its own motion and against the objection of the appellant, gave to the jury the following instruction: `In determining the duration of the injury and disability of the plaintiff, if you find that he has sustained such, you may take into consideration the expectancy of his life as shown by the tables introduced, when considered in connection with the evidence as to his physical condition at the time of the injury and the other evidence in the case.'"

First, then, we are of opinion that there was evidence sufficient to warrant the verdict of the jury, and the same does not appear to be contrary to the law as given by the court to the jury.

As to the fourth ground, if damages were recoverable at all, we have no sufficient evidence to justify us in reversing the judgment because the amount assessed is excessive or to direct a remittitur to be entered.

The fifth ground is that the court should have excluded plaintiff's testimony in so far as it shows the value of his annual services as a farmer, because his testimony is only his opinion as to such services and their value, and he was not shown to be an expert, whose opinion alone can be taken and given in evidence in such matters. The argument of appellant's counsel on this objection is that the testimony fails utterly "to show that appellant had ever hired a laborer to do farm work, or that any one else within his knowledge had ever hired farm labor. He could, therefore, be a farmer without being able to testify as to the cost of the services of other persons engaged in farming pursuits, such as he was engaged in, at that time and place." In answer to this, it may be said that the plaintiff was not called upon to make proof of the value of the services of a farm laborer or laborers (although, as the work of a farm laborer may be, and frequently is, a part of a farmer's work, to that extent, and no further, a farmer's knowledge of the value of a farm laborer's services may help him in putting a value upon his own), but the sole question to be settled by the testimony was what his services as a farmer — not a farm laborer — were annually worth. If, in order to make this kind of proof, it is essential to show instances wherein persons had been hired as farmers, or wherein a value had been actually placed upon a farmer's services, it would be rarely the case that the object of the inquiry could be attained, since the instances are rare where such services have been valued, so as to make this valuation of general application. When the plaintiff (as showing his method of arriving at the value of his services annually) testified that it required about...