Butler County Railroad Co. v. Lawrence

• Decision Date: 16 April 1923
• Docket Number: 302
• Citation: 250 S.W. 340,158 Ark. 271
• Parties: BUTLER COUNTY RAILROAD COMPANY v. LAWRENCE
• Court: Arkansas Supreme Court

250 S.W. 340

158 Ark. 271

BUTLER COUNTY RAILROAD COMPANY v. LAWRENCE

No. 302

Supreme Court of Arkansas

April 16, 1923

Appeal from Clay Circuit Court, Eastern District; W. W. Bandy Judge; reversed, unless remittitur is entered.

Judgment reversed and cause remanded.

W E. Spence and Sheppard & Sheppard, for appellant.

The evidence is not sufficient to sustain the verdict on the question of injury. 172 S.W. 258. The court erred in giving instruction numbered 4 on the question of damages. There was no testimony showing loss of time of the injured party nor any expense paid for nursing and medical attention by her husband. Administrator can't recover in this action for money expended by him for medical attention to the wife. 63 Ark. 563; 116 Ark. 334; 84 Ark. 617; 11 Ill.App. 154; 186 Ill.App. 360; 148 Wis. 541, 134 N.W. 157; 35 R. I. 406, 87 A 174; 56 Conn. 478, 16 A. 237; 46 Kan. 109, 26 P. 453; 39 A. 1100; 63 N.E. 328; 107 Ind. 32, 7 N.E. 373; 88 N.W. 337; 172 Mo.App. 113. Distinction between loss of time and decreased earning capacity. 190 Ala. 229, 67 So. 513. Instruction did not limit amount of recovery to the damages shown by the evidence. 128 Ark. 479, 194 S.W. 873; 149 Ark. 433, 233 S.W. 683; 159 S.W. 33. Unless it affirmatively appears that error was not prejudicial, cause should be reversed. 16 Ark. 329; 67 Ark. 604, 50 S.W. 529; 69 Ark. 134; 62 S.W. 64; 71 Ark. 272, 74 S.W. 513; 104 U.S. 625, 26 L.Ed. 870; 17 Wall. 639, 21 L.Ed. 717; 119 U.S. 99, 7 S.Ct. 118, 30 L.Ed. 299; 110 U.S. 50, 3 S.Ct. 471, 28 L.Ed. 62; 5 Wall. 807, 18 L.Ed. 653. No negligence shown as alleged. 177 S.W. 923; 118 Ark. 206, holding that where specific acts of negligence pleaded recovery may be had on doctrine of res ipsa loquitur is contrary to the weight of authority and should not be adhered to. 269. No. 104; 88 Md. 55, 40 A. 1066; 64 So. 343; 126 Ill.App. 189; 213 Mass. 392; 72 Ill. 141; Tex. Civ. App. 141, 29 S.W. 948; 140 Cal. 563; 37 S.W. 423; 35 S.W. 208.

Costen & Harrison, for appellee.

The testimony shows that decedent was injured by the explosion while on board the motor-car. 118 Ark. 206. No error in giving instruction No. 4. Married woman's disabilities have been removed, act 66, Acts 1919, p. 36; § 1070, Crawford & Moses' Digest; 17 C. J., 782, 801-2-3. No specific objection was made to said instruction. 56 Ark. 602, 123 S.W. 797; 125 S.W. 136; 133 S.W. 1134; 88 Ark. 184; 88 Ark. 204; 89 Ark. 522; 93 Ark. 589; 96 Ark. 184; 118 Ark. 337; 119 Ark. 530. Even though some of the elements of damage which the court instructed could be recovered were not proper elements of damage, no prejudicial error in absence of specific objection. 92 Ark. 432; 108 Ark. 14.

W. E. Spence and Sheppard & Sheppard, in reply.

Act of 1919 does not permit a recovery by appellee for loss of services and medical expense. 166 Ark. 334; 112 Mo. 225, 91 A. 980; 181 Mich. 101, 147 W. W. 614; 132 Tenn. 609, 179 S.W. 127; 206 S.W. (K). 880; 166 P. 57; 135 Ala. 417, 33 So. 335, 21 Col. 340, 40 P. 891; 130 Ill.App. 400; 103 Minn. 290; 115 N.W. 651; 51 Ind.App. 533, 100 N.E. 101; 41 Neb. 578, 59 N.W. 921; 73 N.H. 529, 63 A. 578; 66 Ohio St. 395; 64 N.E. 438; 179 Mo.App. 61, 162 S.W. 280; 141 Ala. 420, 38 So. 363; 14 Col. App. 132, 59 P. 476; 124 Ga. 549, 52 S.E. 916. Appellee's authorities reviewed as to specific objections and insisted not applicable to case. The substance of the instruction being complained of 58 Ark. 205; 130 Col. 521, 62 P. 932, is in point. 63 Ark. 563; 96 Ark. 243, 131 S.W. 686; 138 Ark. 10, 210 S.W. 350; 136 Ark. 433, 206 S.W. 571.

OPINION

MCCULLOCH, C. J.

Appellant owns and operates a line of railroad running from Poplar Bluff, Missouri, through McDougal, Arkansas, to Piggott, Arkansas, and on October 6, 1920, appellee's intestate, Mrs. T. J. Lawrence, was a passenger from McDougal to Piggott on a motor-car propelled by steam produced by the use of coal oil as fuel. An explosion of the pipes in the boiler occurred as the car pulled out from McDougal, and the car was filled with smoke and soot, or carbon, and Mrs. Lawrence claimed that she received injuries on account of the inhalation of the smoke and gas. She instituted this action against appellant, alleging that the explosion was caused by the negligence of appellant, and that as a result of the explosion the car was filled with smoke and gas, which caused injuries to her lungs and stomach and made her sick for a considerable length of time. Damages were laid in the sum of $ 2,000.

Appellant answered, denying that Mrs. Lawrence sustained any injuries or that appellant's servants were guilty of any negligence which caused the explosion.

Mrs. Lawrence died about a year after the occurrence of the explosion, and the cause was revived in the name of the administrator of her estate. On the trial of the cause a verdict was returned in favor of appellee. assessing damages in the sum of $ 1,000.

It is undisputed that Mrs. Lawrence was a passenger on the train, and that a violent explosion occurred, which filled the car with smoke and soot, or carbon, which blackened the faces of the passengers to the extent that they looked like negroes. That is the way in which one of the witnesses related the facts, and there is no dispute on that subject. The car was moving out of McDougal at the time, and as soon as the explosion occurred the conductor stopped the train and nearly all the passengers got out, for fresh air--all, perhaps, except Mrs. Lawrence, who remained in the car--and the smoke rapidly disappeared, as the windows were open at the time. Another engine was procured, and the train proceeded on its journey, and on arrival at Piggott Mrs. Lawrence went to her home in that town.

The testimony tends to show that when Mrs. Lawrence arrived at her home her face was still black from the soot, and she was sick and distressed. A physician was called, either that day or the next, and he treated her for some time, and testified as to her suffering, and gave his opinion that the condition of her lungs and stomach resulted from the explosion, which, he said, produced gas that was injurious when inhaled. Mrs. Lawrence was 73 years of age at the time, and there was also testimony tending to show that her health was good up to the time this explosion occurred.

The contention of appellant is that Mrs. Lawrence suffered no injury except the inconvenience of having the soot settle on her face. It is urged that it is scientifically impossible for a deadly or injurious gas to escape on account of an imperfect combustion or explosion of coal oil.

There was no attempt on the part of appellant to clear itself of the charge of negligence in permitting the explosion to occur; therefore, if injury be shown to have resulted to Mrs. Lawrence from the explosion, the verdict fixing liability is justified, the burden being upon appellant to overcome the presumption of negligence.

Appellant introduced as a witness its master mechanic, who explained the cause of the explosion as follows: "Q. Will you explain to the jury the construction of that engine? A. Well, it is a water-tube boiler, and the steam is generated by a low grade coal oil fire, and the oil is put in through the burner into the fire-box, and that heats the water in the tubes, and this tube burst, and that is what caused the trouble. Q. Now, what would naturally take place on account of the construction of that engine at that time now? A. Well, it introduced steam into the fire-box, and, mixed with the coal oil, it caused an incomplete combustion and created smoke, just like a lamp not properly trimmed or turned up does; they will smoke. Q. Would there be any gas in that? A. Well, it is partly burned coal oil is all it is; it forms carbon instead of burning it up completely. Q. You weren't present when that took place? A. No sir. Q. Did you examine that engine and fix it afterwards? A. I saw it done; yes sir. Q. Now, explain what took place; what happened to the engine? A. Well, one of the tubes burst. Q. How long a place burst? A. Four or five inches up and down the tube. Q. And the steam then would go down into the fire-box and blow the coal oil out, or ignite it? A. Well, it was already ignited, but the steam interfered with the mixture and made it into smoke."

We are not willing to say, in the face of positive testimony, that the explosion which caused the gas as well as smoke and soot to envelop the persons in the car was insufficient to produce an...