Little Rock, M.R. & T. Ry. Co. v. Haynes

• Decision Date: 30 October 1886
• Citation: 1 S.W. 774,47 Ark. 497
• Parties: L. R., M. R. & T. RY. v. HAYNES
• Court: Arkansas Supreme Court

1 S.W. 774

47 Ark. 497

L. R., M. R. & T. RY. v. HAYNES

Supreme Court of Arkansas

October 30, 1886

APPEAL from Drew Circuit Court, Hon. J. M. BRADLEY, Circuit Judge.

Reversed.

J. M Moore for Appellant.

We hardly feel that it is necessary to file a brief in this case or do more than refer the court to the case of St. L., I M. & S. Ry. v. Freeman, 36 Ark. 41. The cases are in many respects parallel. In both cases the engineer, when he first saw the party injured, thought it to be some other object and took such precautions as were proper under the circumstances, and did everything in his power to avert the accident after discovering that it was a human being on the track. In the case cited, this court held that the company was not liable, but in the case at bar the circuit court held that the engineer could not be heard to say that he mistook the plaintiff's foot for a log or chunk of wood. See third and fourth instructions given for the plaintiff; and seventh and twelfth instructions asked by defendant and refused.

In the eighth instruction given for the plaintiff the circuit court adopts the Illinois doctrine of comparative negligence, which was condemned by this court in Freeman's case.

The court refused to instruct that it was contributory negligence for the defendant, if he was subject, as he testified, to fits of vertigo, to expose himself as he did on the track near train time; (see the fourth and eleventh instructions asked by defendant and refused), or that it was contributory negligence for a man to go to sleep on a railroad track (second instruction asked by defendant and refused).

In short, the case was tried on an erroneous theory throughout. It is inconceivable how the circuit court could have so egregiously erred in view of the rulings of this court in the following cases: L. R. & Ft. S. Ry. v. Pankhurst, 36 Ark. 374; St. L. & S. F. R. R. v. Marker, 41 Ark. 542; L. R. & Ft. S. Ry. v. Miles, 40 Ark. 298; Ledbetter's case in Mss.

W. F. Slemons and C. D. Wood for Appellee.

It was not error for the court to allow the plaintiff to estimate his damages under the question as propounded to him, and was only restating in substance what was claimed in his complaint (37 Ark. 519, sustains the doctrine), and was not prejudicial to defendant.

The second instruction asked for by plaintiff submitted the facts fairly to the jury, is good law, and was properly given. 38 Ark. 369; 42 Ark. 328, and cases cited; A. & E. Ry. cases. vol. 8, p. 314; Ib., 347; Ib., 480; A. & E. Ry. cases, vol. 3, p., 365; Ib., vol. 6, p. 222.

The third instruction is law and was properly given. Central Law Journal, No. 22, May 30, 1884, p., 349. It would be carelessness to run a train over a log or chunk.

Fourth instruction properly given; was supported by the evidence. Central Law Journal, No. 22, May 30, 1884, p. 349. Safety to passengers demanded this if nothing else.

Eighth instruction properly given. 43 Wis. 509; 36 Wis. 92; 22 Wis. 675; 29 Wis. 144; 40 Wis. 35. We fail to see wherein this court has condemned the doctrine here laid down. 36 Ark. 41. But if it has, was defendant prejudiced by the instruction?

The third instruction asked for defendant was properly overruled, because there was no evidence to support it, and it is purely abstract. 15 Ark. 492. If there was not a particle of evidence that plaintiff had gone to sleep on the track, why is it error to refuse an instruction on that point?

The fourth instruction asked for defendant was properly overruled. Plaintiff had the same right that other footmen had, especially when on business. The refusal to give this instruction could not and did, not prejudice defendant's case because it is evident from the evidence that the jury regarded the fact of the train not being stopped before reaching plaintiff, after the engineer saw him, as negligence and the proximate cause of the injury.

The twelfth instruction for defendant was properly overruled. The principle it asked the court to establish is not good law. "When one discovers the danger in which another lies and negligently fails to avert it, no negligence, however gross, of the latter, can excuse the former from answering the full consequences and the payment of all damages done." Werner v. Citizens R. Co., S. C. Mo.; Central Law Journal, No. 22, May 30, 1884, page 439.

Conceding, however, that this instruction was good law, this court will not reverse because it was evidently not prejudicial to defendant.

The opinion of this court in Citizens Street Railway v. Steen, 42 Ark. 322 to 329 inclusive, and cases there cited, are applicable to this case, and is a lucid exposition of the law of negligence and of damages of cases of this character.

The damages were for the jury to determine from the evidence. Klutts v. St. Louis, etc., Ry. Co., A. & E. Railroad Cases, vol. 11, p. 644; 42 Ark. p. 126.

OPINION

SMITH, J.

This action was brought by Haynes, who was using the railroad track as a foot-path, to recover damages for being run over by a passing train. The answer averred that the defendant's servants in charge of the train exercised all proper care -- that the injury occurred by reason of the plaintiff's own negligence in lying on or near the track while he was drunk, or asleep; and that every effort was made to stop the train after the plaintiff's situation was discovered. The plaintiff obtained a verdict for $ 4500. And the motion for a new trial alleged the admission of incompetent testimony, misdirection of the jury and that the verdict was contrary to the evidence.

After detailing the nature and extent of his injuries and the circumstances under which he was struck, the plaintiff was asked this question:

"Taking into consideration the amount you have expended in attempting to cure yourself of your injuries, the present and prospective condition of your leg, the bodily pain and mental anguish, the time you have lost from your labor, your inability to labor and follow and attend to your business affairs in the future, how much were you damaged by the injury?" Plaintiff answered $ 4500. To the question and answer defendant objected, and his objection being overruled defendant at the time excepted.

The impropriety of such a line of examination was pointed out by this court, nearly forty years ago, in Pierson v. Wallace, 7 Ark. 282. This is one of the few subjects upon which there is absolutely no conflict in the authorities. A witness is never permitted to estimate the amount of damages which a party has sustained by the doing, or not doing, of a particular act. That is the province of the jury and a witness cannot be allowed to usurp it. He may state facts showing the extent of the damages and any other pertinent matters. But the measuring of the amount of damages in dollars and cents is not a fact. It is a matter of opinion or speculation. See Lawson's Expert and Opinion Evidence, 448, where a vast number of cases are collected; Kirkpatrick v. Snyder, 33 Ind. 169; O. & M. Ry. Co. v. Nickless, 71 Ind. 271. The leading case on this subject is Norman v. Wells, 17 Wend. 136. There the court say: "The ordinary and in general the only legal course is to lay such facts before the jury as have a bearing on the question of damages, and leave them to fix the amount. They are the only proper judges. They are impartial and capable of entering into these ordinary matters. Witnesses are, in such cases, unavoidably governed by their feelings and their prejudices, gathered from many sources. . . . No case was cited by counsel where evidence of opinion as to the amount of damages sustained has ever been sanctioned as legal. The amount of indemnity, where it is not capable of being reached by computation, is always a question for the jury.

"If there be any rule without exception it is this, and I have been unable to find any instance where the opinion of...