Missouri Pac. R. Co. v. Miller, 4-5900.

• Decision Date: 22 April 1940
• Docket Number: No. 4-5900.,4-5900.
• Citation: 139 S.W.2d 248
• Parties: MISSOURI PAC. R. CO. v. MILLER.
• Court: Arkansas Supreme Court

139 S.W.2d 248

MISSOURI PAC. R. CO. v. MILLER.

No. 4-5900.

Supreme Court of Arkansas.

April 22, 1940.

Appeal from Circuit Court, Hot Spring County; Thomas E. Toler, Judge.

Personal injury action by Amanda Miller against Missouri Pacific Railroad Company and Guy A. Thompson, trustee. From an adverse judgment, defendants appeal.

Judgment reversed and cause remanded for a new trial.

Henry Donham, of Little Rock, and Richard M. Ryan, of Hot Springs, for appellants.

No brief for appellee.

HUMPHREYS, Justice.

Appellee brought this suit against appellant in the circuit court of Hot Spring County to recover damages in the sum of $3,000 for an injury received by her through the alleged negligence of appellant in causing and permitting a hot cinder to be blown from one of its engines while she was rightfully on its depot platform in the city of Malvern, which struck appellee in her left eye severely injuring it and causing her to suffer severe and excruciating pain and resulting in the permanent injury to the vision thereof and disfigurement of her face.

Appellant filed an answer denying each material allegation in the complaint and that she was entitled to recover any sum or sums on account of any of the matters or things alleged in the complaint.

The cause was tried to a jury upon the testimony introduced by the respective parties and the instructions of the court resulting in a verdict and consequent judgment in the sum of $500, from which is this appeal.

Appellee testified, in substance, that about 2:30 o'clock, p. m., on March 14, 1936, that she was expecting a visit from a nephew living in Shreveport and that she in company with Mrs. Lizzie Ann Tarver went to the depot of appellant to look at the bulletin board to see the time of the arrival of trains; that the bulletin board was hanging on the wall of the depot, and when looking at it her side was turned toward the railroad track upon which a locomotive or engine was approaching; that when she turned in the direction of the engine her glasses dropped down on her nose and a cinder from the engine or locomotive hit her in the left eye; that she never saw the like of cinders in her life; that her eyes were in good condition before the injury and that she had never had them treated for any disease before that; that she lived in Perla and had come to Malvern to do some shopping and to ascertain the schedule of trains as she was expecting a visit from her nephew who lived in Shreveport; that he did not come that day but came later; that after the cinder got in her eye she attempted to remove it by rubbing her eye and failing to get it out went back home where she remained for three days suffering much pain; that her daughter and husband tried to get it out and being unable to do so she went back to Malvern in company with Mrs. Julia Ramsey to see Dr. Sizemore; that she found him in his office; that his nurse or assistant was in the office; that the doctor examined her eye and removed a cinder therefrom; that the eye began to inflame and bother her a great deal, and that she had Dr. Bramlitt treat her, who is now dead; that in addition to the great pain she suffered she lost most of the vision in the left eye.

Mrs. Lizzie Ann Tarver testified, in substance, that she went to the depot with her friend, the appellee, to see the bulletin board and ascertain the schedule of trains on the 14th day of March, 1936, at about 2:30 o'clock, p. m.; that as they turned away from the bulletin board a train ran up and whistled and cinders flew everywhere and that while witness got one in her own eye, which she was able to get out, appellee got one in her left eye which she was unable to remove; that she had known appellee for a number of years, and that her eyes were in good condition before the injury.

Mrs. Julia Ramsey testified, in substance, that on or about the 17th day of March, 1936, she went with appellee to the office of Dr. Sizemore in Malvern, and that the doctor put appellee in a chair and threw her head back and got a cinder out of her eye; that witness saw the cinder, and that it was about as big as the small end of a match; that the nurse was in the doctor's office at the time; that she had known appellee and lived within five miles of her for forty years, and that prior to the injury appellee's eyes were in good condition.

Dr. W. F. Barrier testified that two or three years before that appellee came to his office and said she had gotten a cinder in her eye and gave him the history of the case and said that Dr. Sizemore took it out; that when she came to him that the eye was inflamed and causing her much pain. When asked what the condition of her eye was at the time he was testifying he said, "She evidently has got some pressure or tumor behind the eyeball". Several hypothetical questions were propounded to the doctor and finally he said that if appellee's eye was normal at the time she received the injury or got the cinder in her eye and the cinder caused the amount of inflammation that he saw in the eye he would be of the opinion that the injury to the eye had caused the swelling in the eye that existed at the present time. The following excerpt appears in his testimony:

"Q. You don't mean to tell the jury that that cinder caused that? A. I don't say that it did.

"Q. You don't say that it did not? A. I would surmise that if her eye was normal up to the time of the injury that it would be the cause of it".

Jane Gilchrist testified that she was working for Dr....