Kansas City Southern Ry. Co. v. Leslie, 216

• Court: Supreme Court of Arkansas
• Writing for the Court: KIRBY, J.
• Citation: 189 S.W. 171,125 Ark. 516
• Parties: KANSAS CITY SOUTHERN RY. CO. v. LESLIE, ADMR
• Docket Number: 216
• Decision Date: 23 October 1916

189 S.W. 171

125 Ark. 516

KANSAS CITY SOUTHERN RY. CO.
v.
LESLIE, ADMR

No. 216

Supreme Court of Arkansas

October 23, 1916

Appeal from Little River Circuit Court; Jefferson T. Cowling, Judge; affirmed.

Judgment affirmed.

James B. McDonough, for appellant.

1. The court erred in permitting the plaintiff to amend his complaint so as to charge concurrent negligence, after plaintiff had closed his evidence and after defendant had filed a motion to require the plaintiff to elect upon which cause of action or act of negligence he would rely.

There is no evidence tending to establish any act of negligence, unless it be the absence of end handholds on the refrigerator car, and the absence of additional handholds on the tank car, and there is, in fact, no proof of negligence in that respect. The ruling of the Court, therefore, in the presence of the jury, authorizing the plaintiff to allege concurring negligence, and that all the acts of negligence concurred in producing the death, was tantamount to a declaration by the Court to the jury that there was some evidence on each allegation in the complaint, and was reversible error.

2. The Court erred in its instruction, numbered 10, on the measure of damages, because (1) It leaves the jury without a guide as to the finding on the subject of conscious pain and suffering. (2) It authorizes the jury to find a lump sum in favor of the widow and child, and then to apportion that sum.

The measure of damages as to the child is different from that of the mother. Under the decisions of the Supreme Court of the United States the widow and child are only entitled to recover upon their actual pecuniary loss. The instruction does not so limit their recovery. 238 U.S. 599; 227 U.S. 59; Id. 145; 228 U.S. 173; 232 U.S. 248; 235 U.S. 625.

3. The court erred in refusing to exclude from the jury's consideration that part of the argument of plaintiff's counsel to the effect that zinc car should have been put in some other part of the train. There is no testimony whatever in the record upon which to base such an argument. 82 Ark. 562; 81 Ark. 231; Id. 25; 87 Ark. 515; 89 Ark. 58; 103 Ark. 356; 104 Ark. 94.

W. P. Feazel, for appellee.

1. The allowance of amendments to pleadings lies within the discretion of the trial court, and is not a ground for reversal unless it affirmatively appears that there has been an abuse of that discretion. 104 Ark. 276.

2. The court's instruction on the measure of damages has not been expressly passed on by this court, but it conforms in every particular to the opinion of the Supreme Court of the United States. 238 U.S. 844; 227 U.S. 145; 22 U.S. 173; 232 U.S. 248; 235 U.S. 625; 237 U.S. 648.

3. There is no merit in the objection to counsel's argument. He had the right to express his opinion in his argument to the jury as to the duty of appellant in making up its train. 76 Ark. 286; 93 Ark. 564; 96 Ark. 547; 76 Ark. 39.

OPINION

[125 Ark. 518] 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. 305, 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 number 10, and remanded for further proceedings. 238 U.S. 599. 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 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...