Biddle v. Riley

• Decision Date: 26 April 1915
• Docket Number: 332
• Citation: 176 S.W. 134,118 Ark. 206
• Parties: BIDDLE ET AL., RECEIVERS v. RILEY
• Court: Arkansas Supreme Court

176 S.W. 134

118 Ark. 206

BIDDLE ET AL., RECEIVERS v. RILEY

No. 332

Supreme Court of Arkansas

April 26, 1915

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge affirmed.

Judgment affirmed.

W F. Evans, B. R. Davidson, George S. Ramsey, Edgar A de Mueles and Farrar L. McCain, for appellants.

1. Appellants and the St. Louis & San Francisco Railroad Company were sued jointly, and both were served with process. When, on the tenth day of the term, the plaintiff elected to take a nonsuit, or to discontinue the case as to the railroad company, this worked a continuance for the term, and the court erred in forcing appellants into trial at that term. Kirby's Dig., § 6191; 4 Ark. 509; Id. 546; 18 Ark. 361; 9 Ark. 455-462; 33 Ia. 356; 8 Nev. 239; 21 Enc. P1. & Pr. 957; 36 Tex. 315-317; 73 Ark. 183-187; 83 Ark. 6-8; 58 Ark. 136; 66 S.W. 375; 88 S.W. 37.

2. It was erroneous to permit the plaintiff, who was not shown to possess any knowledge of the value of nurse hire, to testify what it would cost to secure the services of a nurse by the day. 55 Ark. 65; 108 Mich. 350, 66 N.W. 218; 130 U.S. 611-620; 30 S.W. 254; 27 S.W. 920.

3. It was erroneous to permit the plaintiff in making out his case in chief to introduc testimony, over the objection of defendants, that he was a moral, honest, hardworking, model, exemplary young man. Every person is presumed to have a good moral character until the contrary is shown, and this presumption obtains as well with reference to earning capacity as to character as a witness. Such testimony is not admissible in a civil case until the reputation of the witness has been attacked. 91 S.W. 691; 113 Al, a. 360, 21 So. 366; 113 N.W. 1118; 57 Ind. 378; 33 S.W. 249; 129 S.W. 863; 15 Am. Neg. Rep. 372; 7 Conn. 116; 110 Cal. 414; 20 S.E. 763; 23 Pa.St. 424; 84 Id. 446; 68 Ia. 737; 7 Ind. 17; 62 Ark. 267; 1 A. 605; 36 F. 657; 101 Ind. 582; 128 S.W. 677; 1 L. R. A. (N. S.) 198-201; 64 S.W. 923; 129. S.W. 863; 60 S.W. 669; 76 S.E. 711.

4. The conclusions of physicians who have been called not for the purpose of treatment, but for the purpose of becoming witnesses, based upon a history of the case, consisting largely of self-serving statements, related by the plaintiff a month or more after the injury, were not admissible. 70 F. 21; 206 F. 765; 16 L. R. A. 437; 20 Am. St. Rep. 17; 38 A. 683; 41 S.W. 517; 28 A. 102; 80 Mich. 237; 63 N.W. 172; 100 N.W. 788; 132 Mass. 439.

Opinions based upon hypothetical questions which do not embrace essential facts nor a substantial part of them, as shown by the evidence, are not admissible. 100 Ark. 518-524; 103 Ark. 196-199.

It was clearly erroneous for the court to allow the plaintiff to make an exhibition of himself before the jury by having one of his physicians to stick pins in his leg. Such a test was admittedly not conclusive, but was of such a character as to unduly arouse the sympathies of the jury, and that it succeeded is reflected in the excessive verdict. 90 S.W. 511-514; 101 N.W. 1011; 177 N.Y. 359.

5. Instruction 1, given by the court on its own motion, was erroneous. There were specific allegations of negligence contained in the complaint, yet, notwithstanding these, the court by that instruction applied to the case the doctrine of res ipsa loquitur.

The specific omissions charged do not constitute negligence under the facts in the case; and there is no lookout statute in the State of Oklahoma, where the accident occurred. 217 F. 956; 26 Okla. 788, 110 P. 776; Pomeroy's Code Remedies (4 ed.), 682; Id. 614; Id., § 448; 31 Cyc. 85; 29 Okla. 797, 119 P. 1008; 66 S.W. 906; 132 S.W. 975; 202 Mo. 576, 101 S.W. 32; 155 S.W. 1092; 99 S.W. 1062, 8 L. R. A. (N. S.) 929; 126 S.W. 126; 52 Tex. C. App. 550, 114 S.W. 186; 119 Ga. 837; 23 Okla. 588, 101 P. 1126, 22 L. R. A. (N. S.) 892; 22 Mont. 445, 56 P. 867; 62 N.W. 301; 49 S.W. 868; 10 P. 821; 40 N.E. 65; 53 N.E. 464.

That the doctrine of res ipsa loquitur does not apply to this case, and that the complaint must stand or fall upon the specific issues of negligence tendered, is sustained by this court. 63 Ark. 563; 88 Ark. 12, 114 S.W. 230; 84 Ark. 311, 105 S.W. 573. See, also, 83 Ark. 395; 87 Ark. 471; 82 Ark. 547; 65 Ark. 222; 89 Ark. 24; 88 Ark. 594; 85 Ark. 390, which sustain the principle that instructions should be confined to the issues made by the pleadings, and that instruction based on issues not raised by the pleadings are erroneous.

To charge the jury upon the facts developed and notwithstanding the complaint specified the act of negligence, that if the plaintiff was injured without fault on his part by reason of the train colliding with another train, this was prima facie proof of negligence, was contrary to the Constitution of this State. 43 Ark. 289: 45 Ark. 492; Id. 165; 57 Ark. 461; 51 Ark. 147; 85 Ark. 138; 83 Ark. 195. It was clearly erroneous to instruct them that upon proof of the collision, the plantiff was entitled to recover "unless the defendants showed by a preponderance of the evidence that said injury occurred without negligence on their part." 228 U.S. 233, 33 S.Ct. 416.

6. There was no evidence that the Midland Valley Railway Company was and had been operating trains over the track of the railroad company in charge of the appellants, or that they were so operated with the knowledge and permission of appellants or their employees, and instructions based upon or assuming such a state of facts were erroneous.

Pace, Seawel & Davis, for appellee.

1. There was no error in requiting appellants to go into trial after the dismissal of the cause as to the railroad company. The statute, Kirby's Dig., § 6191, has no application to cases of this character. The statute is not mandatory, and does not do away with the discretion of the trial court in the matter of refusing or granting continuances. 57 Ark. 287; 37 Ark. 491.

2. The testimony as to the cost of securing the services of a nurse was competent. Appellee had the means and opportunity of acquiring knowledge of such cost. The jurors were competent to determine from their common knowledge and experience what such services would cost him. 87 Ark. 308.

3. Evidence as to the age, health, habits, etc., of appellee was admissible. This court has frequently declared that evidence of habits, etc., was competent, and that character should be considered in estimating the damages. 60 Ark. 559; 105 Ark. 533; 88 Ark. 225; 82 F. 158.

4. The medical testimony introduced by appellee was clearly within the rule declared by this and other courts. The hypothtical questions embraced all essential undisputed facts and also those established by appellee in the case. It was not necessary to preclude all facts proved in the case. Appellee was entitled to include such facts as he conceived to have been proved and predicate his hypothetical question thereon. 83 Ark. 589; 98 Ark. 399; 106 Ark. 353; 98 Ark. 352.

5. There is no error in instruction i complained of by appellants. This court has already held the contention of appellant as untenable, and has refused to follow the doctrine in Missouri and other States, relied on by appellants. 40 Ark. Law Rep. 1; 95 Ark. 315; 34 Ark. 613; 51 Ark. 459; 90 Ark. 485; 57 Ark. 418; 104 Ark. 528.

For a discussion of the conflict of authorities upon this question, see 48 Wash. 233, and notes thereon in 24 L. R. A. (N. S.) 788.

6. There is sufficient evidence in the record to justify the second and third instructions complained of by appellants. There is no denial in the answer that at the time of the injury, the Midland Valley Railroad Company was being permitted to use the tracks of the St. Louis & San Francisco Railroad Company at the point where the injury occurred. Therefore, it stands admitted. 51 Ark. 459. Moreover, the law would charge the latter railroad company and its receivers with knowledge of the occupancy of this track by another railroad company, and if such use was long continued, acquiescence and consent would be inferred, especially so where, as in this case, the matter was peculiarly within the knowledge of the appellants, and no effort was made to contradict the evidence upon that question. 83 Ark. 94; 102 Ark. 499; 49 F. 209.

OPINION

MCCULLOCH, C. J.

This is an action to recover damages on account of personal injuries received by the plaintiff Riley while he was a passenger enroute from Fort Smith to Mansfield over the railroad owned by the St. Louis & San Francisco Railroad Company, which was being operated by the defendants as receivers appointed by one of the courts of the United States. There was a collision of the train on which plaintiff was a passenger with a freight train operated over the same line by another company, to wit: The Midland Valley Railroad Company, at a point between Bonanza, Arkansas and Jenson, Arkansas; the particular point where the collision occurred being, however, in the State of Oklahoma. The injuries received by the plaintiff were according to the evidence adduced by him, very severe, and caused him to suffer great pain and permanently destroyed his earning capacity. The evidence tended to show that he sustained a severe injury to the spine, spoken of by one or more of the physicians who testified in the case as a lesion of the spinal cord, and that he was completely paralyzed from his hips downward. It is alleged in the complaint that the Midland Valley Railroad Company had been using the track by permission of the St. Louis & San Francisco Railroad Company for a number of years, and that it was being so used at the time of the collision with the consent of the receivers. It is also alleged that the collision was caused by negligence of the employees in charge of defendant's train in failing to keep a lookout, and negligence on the part of the Midland...