Missouri & North Arkansas Railroad Company v. Duncan

• Decision Date: 17 June 1912
• Parties: MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. DUNCAN
• Court: Arkansas Supreme Court

148 S.W. 647

104 Ark. 409

MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. DUNCAN

Supreme Court of Arkansas

June 17, 1912

Appeal from Searcy Circuit Court; George W. Reed, Judge; affirmed.

Judgment affirmed.

Troy Pace, J. Merrick Moore and W. B. Smith, for appellant.

1. The first and third instructions given on the part of appellee were erroneous in that they authorized a recovery if the jury found either that the coupling was made with unnecessary and unusual force or that the appellant failed to give due notice, etc.

There is no absolute duty to bring home actual notice, but a duty only to exercise reasonable care to give notice or warning. The omission of this explanation of the appellant's duty as to notice is not cured by the twelfth instruction given at appellant's request, because the former instructions are inconsistent and conflicting with the latter. 65 Ark. 65; 96 Ark. 311, 314; 95 Ark. 506; 76 Ark. 224-227.

2. In cases of this character the admission of evidence as to the size of the plaintiff's family is prejudicial error. 74 Ark. 326, and cases cited; 100 Ark. 526. The introduction of such testimony, not, as alleged, for the purpose of increasing damages, but for the purpose of showing appellee's mental suffering, a legitimate element of damages, is but a mere contradiction in terms, and an effort to evade the rule. 7 S.W. 77, 78; 43 S.W. 913, 914; 54 A 341; 45 P. 61, 62; 41 S. E. (W. Va.) 216, 220; 76 N.Y. 170.

S. W Woods, for appellee.

1. The instructions objected to are responsive to the pleadings and evidence, and are correct. Moreover, all the instructions are to be considered together, and, when so considered, it is apparent that the case was presented to the jury as favorably to appellant as it was entitled to have.

2. No prejudice resulted to appellant by reason of the testimony as to the size of appellee's family. The court's direction to the jury in effect excluded it; and that it was not considered by the jury is shown by the verdict.

FRAUENTHAL J. WOOD, J., dissents.

OPINION

FRAUENTHAL, J.

This is an action instituted by J. C. Duncan to recover from the Missouri & North Arkansas Railroad Company damages for personal injuries which he alleged he sustained on account of its negligence. The plaintiff was an employee of the Pekin Stave & Manufacturing Company, which was engaged in shipping over the defendant's railroad stave bolts which it obtained along its line. On the day of the injury, plaintiff was loading stave bolts into a freight car, which was placed by the defendant upon its track at a point between its stations, Alberry and Shirley. After placing the car at this point, in order that plaintiff and his fellow workmen might load it with stave bolts, the defendant detached the engine and other cars and carried them down the track for several hundred yards. Some time thereafter, while the plaintiff was in the car stacking the stave bolts, the engine with the other cars attached returned in order to couple to and move it. In doing so it struck the car with force and violence, causing the bolts to fall. One of these bolts, weighing, as one of the witnesses estimated, from 75 to 200 pounds, fell on plaintiff's right foot, breaking several of the bones and injuring him painfully and severely. He was confined to his room on account of the injury for more than six weeks, and at the time of the trial his foot was again examined by physicians, amongst whom was one representing the defendant, and there was testimony given by these physicians indicating that the injury might be permanent.

The acts of negligence charged against the defendant consisted, (1) in throwing the engine and cars with unusual and unnecessary force and violence against the car in which the plaintiff was at work, and (2) in backing the engine and cars against this car without giving any warning or notice. The testimony relative to both these alleged acts of negligence is conflicting. On the part of the plaintiff, the testimony tended to prove that the engine and cars backed at a rapid rate of speed and struck the car in which the plaintiff was at work with unusual and unnecessary force and violence, causing the bolts to fall on plaintiff. On the part of the defendant, however, the testimony tended to show that the impact of the car was made in the customary manner and with no more force than was ordinarily incident to making such coupling. The testimony on the part of the plaintiff tended also to prove that no warning signal by bell or whistle, and no notice of any kind, was given by the defendant, or any one, of the approach of the engine and attached cars before the coupling was made. On the other hand, the evidence on the part of the defendant tended to prove that it gave warning by bell or whistle as the engine approached the car, and also that another workman in the car where plaintiff was situated cried out that the engine was approaching to make the coupling and warning the workmen therein. The trial resulted in a verdict in favor of the plaintiff for $ 800 damages. The defendant seeks by this appeal a reversal of the judgment entered on that verdict upon two grounds: because the court erred, first, in giving certain instructions at plaintiff's request; second, in admitting certain testimony over its objection.

The court charged the, jury that, before they would be warranted in finding for the plaintiff in any sum, he must establish by a preponderance of the evidence that he received the injuries complained of by reason of the negligence of the defendant or its employees in making the coupling, and proceeded to instruct the jury further as follows: "If you should find from a preponderance of the evidence in this case that said coupling was made with unnecessary or unusual force, or that the defendant failed to give plaintiff due notice of making said coupling, and that the plaintiff was injured by reason of the use of unnecessary or unusual force in making said coupling, or on account of defendant's negligence in failing to give plaintiff reasonable notice that said coupling was about to be made, you will find for the plaintiff such damages as he may have established that he sustained on account of such negligence, if any, by a preponderance of the evidence." In another instruction the court charged the jury as follows: "3. I instruct you that the defendant railroad company owed a duty to the plaintiff of using ordinary caution and prudence in protecting him and preventing injury to him while in its cars on its line of road; and if you should find that it failed to give notice that said coupling would be made, or used unusual or unnecessary force in making said coupling, and that the plaintiff was injured thereby, then that would constitute negligence on the part of the defendant."

It is urged by counsel for the defendant that these instructions are erroneous because they charge the jury that actionable negligence resulted either by reason of making the coupling with unnecessary and unusual force or by reason of a failure to give timely notice that the coupling would be made. It is conceded that it would be an act of negligence to make the coupling with unusual and unnecessary force and violence, but it is claimed that it would not be an act of negligence to fail to give notice of the intention to make such coupling if it was made with due care and without any unusual or unnecessary force or violence. We do not think this contention is correct. The plaintiff, with his fellow workmen, was engaged in loading this car with bolts, not only with the knowledge of defendant and those in charge of its train at the time, but at its express invitation and direction. While thus engaged at this work in the car, the defendant owed to plaintiff the duty to...