Kansas City Southern Ry. Co. v. Leslie

Decision Date23 October 1916
Docket Number(No. 216.)
PartiesKANSAS CITY SOUTHERN RY. CO. v. LESLIE.
CourtArkansas Supreme Court

Appeal from Circuit Court, Little River County; Jeff. T. Cowling, Judge.

Action by Sam E. Leslie, administrator of Leslie A. Old, deceased, against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jas. B. McDonough, of Ft. Smith, for appellant. W. P. Feazel, of Nashville, for appellee.

KIRBY, J.

This is the second appearance of this case in this court, it having heretofore been appealed from the judgment rendered against the railway company and affirmed by an opinion in 112 Ark. 306, 167 S. W. 83, Ann. Cas. 1915B, 834, where a sufficient statement of it appears. It was taken on a writ of error to the Supreme Court of the United States, where the judgment was reversed for error in the giving of instruction No. 10, and remanded for further proceedings. 238 U. S. 599, 35 Sup. Ct. 844, 59 L. Ed. 1478. That court in its opinion said, "Three substantial assignments of error demand consideration," and after reviewing and deciding that said assignments 1 and 2 were without merit, sustained the third assignment relative to the rule for the measure of damages recoverable, and reversed the case for the giving of said instruction No. 10.

Upon the trial anew, virtually the same testimony was introduced; the error indicated being avoided by another instruction, and from the judgment recovered against it, the railway company prosecutes this appeal, stating in its brief:

"The evidence in this case is substantially the same as it was at the former trial, with some slight changes each way. There may be some little difference in the testimony of A. C. Holt, and also in the testimony of one or two others, but that difference is not sufficient to take the case to a jury. The suit is one under the federal law. It is a federal question, as to whether or not the facts shown in the record establish a cause of action under the federal law. Therefore, in deciding that question, it is respectfully submitted that the court must follow the decisions of the federal courts. For several reasons which are given below, it is respectfully submitted that under the construction of the federal Employers' Liability Act [Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665)], as made by the federal courts, there can be no recovery in this cause."

Many errors are assigned which we do not consider because of their having been determined adversely in the former decision to appellant's contention.

It is insisted now that the court erred in permitting the amendment of the complaint by appellant in giving instruction No. 10 on the measure of damages, and in allowing an improper argument by appellee's counsel. At the conclusion of the introduction of appellee's testimony, appellant moved the court to require him to elect upon which allegation of negligence he relied for recovery, and thereupon he amended his complaint by leave of the court, by adding to the allegations of the second paragraph:

"That all the acts of negligence hereinbefore complained of, either concurring or single, were the approximate cause of defendant's fall, injury, and death."

It is not shown wherein any prejudice resulted by permitting this amendment, it not being claimed that appellant was surprised thereby or did not have all of its witnesses available to meet and refute the allegations of the complaint. The court has large discretion in granting or permitting amendments of the pleadings, which will not be controlled unless it is shown that its discretion has been clearly abused, which is in no wise apparent here. American Bond Co. v. Morris, 104 Ark. 276, 148 S. W. 519.

The instruction complained of (No. 10) reads as follows:

"If you find for the plaintiff on the deceased's cause of action, that is, for the conscious pain and suffering he endured, if any, by reason of the injury, you will assess the damages in a separate verdict on this element of recovery at such a sum as you find from the testimony would be a fair and just compensation for the conscious pain and suffering which you find from the testimony the deceased underwent on account of the injury, from the time of the injury to his death. And if you find for the plaintiff on the question of financial loss to the widow and child by reason of the deceased's death you will assess the damages in a separate verdict on this element of recovery at such a sum as you find from the evidence would be the present worth of what the...

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