Midland Valley R. Co. v. Scoville

• Decision Date: 07 July 1913
• Citation: 158 S.W. 954
• Parties: MIDLAND VALLEY R. CO. v. SCOVILLE.
• Court: Arkansas Supreme Court

Page 954

158 S.W. 954

MIDLAND VALLEY R. CO. v. SCOVILLE.

Supreme Court of Arkansas.

July 7, 1913.

Appeal from Circuit Court, Sebastian County; Daniel Hon, Judge.

Action by James Scoville against the Midland Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, and remanded for new trial.

Edgar A. De Meules and Sol. H. Kauffman, both of Muskogee, Okl., for appellant. Kimpel & Daily, of Ft. Smith, for appellee.

KIRBY, J.

The railroad brings this appeal from a judgment awarding $700 damages for personal injuries to appellee, resulting from its turning his wagon over at a crossing. It complains of the excessiveness of the verdict, and the error of the trial court in submitting the question of the permanency of the injury to the jury, without any testimony upon which to base it, in instruction numbered 2, as follows: "If the plaintiff, James Scoville, recovers, the measure of his damages is a sum which will fairly compensate him for the injury received, if any, and the loss defendant has occasioned him, if any. Several ingredients go to make up such damages. He is entitled to damages for bodily pain and mental anguish, if any; also, from the permanent injury arising from the hurts to plaintiff, if any; also, for the loss of time from his business."

The complaint alleges a permanent injury, but the most the testimony shows is that the appellee's side, back, and hip were bruised; that he was kept indoors on account of it for three days, and not permitted by his physician to return to his usual work until after ten days. He said that his side hurt worse than his hip, and that his arm was dressed by the physician four or five times; that his side hurt him, when he lifted anything, up to the time of the trial, which occurred five months after the injury; that he spit up blood four or five days after it occurred; that he was away from his business for ten days, and was making at the time the injury occurred $1.75 per day. There was no testimony relative to the payment of doctor's bills, the railroad company's physician having treated the patient, nor any testimony tending to show that the injury was permanent, unless it be appellee's statement, at the time of the trial, five months after the injury, that "my side hurts me every time I lift anything."

The appellee resumed his usual work at the end of ten days, and although he stated at the time of trial that lifting still caused his side to hurt, there was no indication of the...