Kansas City Southern Ry. Co. v. Cobb
| Decision Date | 24 May 1915 |
| Docket Number | (Nos. 4, 124.) |
| Parties | KANSAS CITY SOUTHERN RY. CO. v. COBB. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Polk County; Jeff. T. Cowling, Judge.
Action by Ida Cobb against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
This is a suit by the appellee against the appellant to recover damages for alleged negligence in carrying appellee beyond her destination and in refusing to keep a fire in its waiting room at such a season of the year when it was sufficiently cold to make a fire necessary for appellee's comfort. The appellant denied the grounds for recovery alleged in the complaint, and denied the allegations of damage, and set up negligence on the part of appellee.
Appellee testified that she purchased tickets for herself and children from Texarkana to Hatton, a flag station on appellant's road, and they became passengers, on the 5th of May, 1914; that when the train reached Hatton it was about two hours late, and that she notified the conductor and brakeman in charge of the train that she wished to debark at Hatton; that she had received a telegram that her father was in a dying condition; that Hatton was her nearest station to him, and she was anxious to reach him at the earliest possible moment; that the train failed to stop at Hatton, and appellee was carried on to Vandervoort, a station north of Hatton about two miles, where she debarked; that it was not raining as the train passed through Hatton, at least, not enough to wet any one; that it was raining torrents as she got off at Vandervoort, and as a consequence she was drenched. She was clad in thin summer clothes. There was no fire in the waiting room. She told the man there having charge of the depot that she was cold and wanted a fire. She was not cold when she first went in, but in 10 or 15 minutes she was shaking with a hard ague. The agent did not make a fire. She remained there nearly an hour, and left on the south-bound train to return to Hatton, after buying a ticket and paying six cents therefor. It was daylight when she reached Hatton. There was a cold wind blowing that morning. Her health had been good before that for nearly a year, but she had not been in good health since; had suffered with headaches, backaches, nervousness, loss of sleep and loss of appetite, and that she became dangerously ill at her father's; had a jerking in the back of her neck, and her menstruation was irregular, which had not been the case before. Her menstruation period was on during that trip.
One witness testified that he saw appellee at her father's soon after she arrived there, and she "looked bad; like she was sick." He saw her several times at her father's, and she seemed to be in bad health; seemed to be in good health before that.
Dr. W. A. Sanders testified that he lived at Vandervoort and treated Mrs. Cobb on the occasion mentioned during her visit to her father's. She was complaining of her side the first day she came. She was up while witness was talking to her. He made no examination of her. He prescribed liniment externally. "She seemed to be in fairly good health; did not seem to be anything wrong; had only just taken cold." Witness did not go there to treat her. She came into the room where witness was. Appellee said she had a pain in her left side, and wanted something to apply externally, and witness prescribed what she wanted.
Dr. E. A. Baggett testified that he was appellee's family physician, and had known her for some years, and had prescribed for her frequently. He prescribed for her on May 8th, and had written two or three prescriptions since that time. He made no physical examination of her. Her health seemed to be going down in the last six months. Witness took her word as to her complaints. He treated Mrs. Cobb for one of her lungs — pleurisy; treated her two or three times; did not recall when he treated her for lung trouble, but it was two or two and a half years ago. Appellee had the appearance at the time of the trial of a tubercular patient.
Other witnesses testified that they knew appellee, and that she looked to be in good health the first of the year; did not appear at the time of the trial to be in the same condition of health as she was when the witnesses had seen her before.
The night operator in charge of the station at Vandervoort stated that it was warm on the night the appellee debarked at Vandervoort, and that she made no request of witness to build a fire. It was not cold enough for a fire. Witness' wife had been in the station room that night without any wraps, and witness was working in his shirtsleeves and did not get cold.
The train auditor testified that appellee stated before the arrival of the train at Hatton that she had decided to go on to Vandervoort, where it was customary for her to get off. Witness stated that appellee did not give him any notice that she wished to get off at Hatton, and made no complaint to witness as the train was going out of Hatton. Hatton was not a regular stop. There was only a sort of a shed there for a station, and it was pouring down rain as the train passed through Hatton.
The conductor and brakeman also testified to the same effect. The conductor also testified that after appellee had gone in the waiting room at Vandervoort he told her that he had spoken to the auditor to pass her back, and that she replied, "That is all right."
The physicians on behalf of appellant testified, in substance, that tuberculosis would cause many other troubles, among them irregular menstruation.
Among other instructions, the court told the jury, at the instance of the appellant, that appellant was not liable to appellee for any injury resulting to her due to her getting wet in going from the coach to the waiting room, even though she was carried beyond her station against her consent. And on its own motion the court instructed the jury that it was the duty of the appellant to exercise ordinary care to keep its depot and waiting room in a reasonably comfortable condition for its passengers, and that, if appellant failed to exercise ordinary care in keeping its waiting room at Vandervoort comfortably warm, it was liable to the appellee in such sum as would reasonably compensate her "for any and all injuries she may have sustained as a direct and proximate result of such failure to exercise such care."
The jury returned a verdict in the sum of $1,000.
From a judgment in favor of the appellee in the sum of $1,000, this appeal has been duly prosecuted. Such other facts as may be necessary will be stated in the opinion.
Jas. B. McDonough, of Ft. Smith, for appellant. J. I. Alley, of Mena, for appellee.
WOOD, J. (after stating the facts as above).
I. Appellant contends that the court erred in permitting nonexpert witnesses to testify in effect that soon after the injury appellee "appeared to be suffering"; that "she looked bad; looked like she was sick; seemed to be in bad health;" that "a short time before the injury she appeared to be in very good health." The testimony comes within the rule approved by this court in St. Louis, Iron Mountain & S. Ry. Co. v. Osborne, 95 Ark. 310-317, 129 S. W. 537, where we held that it was not error to allow nonexpert witnesses to state facts within their knowledge and observation as to the plaintiff's physical condition, habits, etc., before and after the date of the alleged injury.
Judge Elliott, in his treatise on Evidence (volume 1, § 678), states:
See, also, sections 675, 676, et seq.
Where one person is acquainted with another, and they come in contact with each other frequently, it is not a matter of expert knowledge for one to tell whether the other appears to be sick or well. These are matters of common experience and observation. And a nonexpert witness, after stating the facts upon which his opinion is based, may even give his opinion in such matters. Jones on Evidence, vol. 3, §§ 360 et seq., 366.
The appellee herself had testified as to her condition of health before the alleged occurrence of which she complains, and the testimony of these witnesses but tended to corroborate her, and their testimony was competent.
II. Appellant complains that the court erred in admitting the evidence of Dr. W. A. Sanders. This witness was at appellee's father's house on the day she arrived there, and had prescribed for appellee. The only portion of his testimony to which appellant objects was as follows:
This testimony was competent, and certainly was not in any manner prejudicial to appellant. If it could have had any effect at all on the jury, it was rather in appellant's favor than otherwise. There can be no...
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