Missouri Pacific Railroad Co. v. Gilbert

Citation178 S.W.2d 73,206 Ark. 683
Decision Date24 January 1944
Docket Number4-7208
PartiesMissouri Pacific Railroad Company, Thompson, Trustee, v. Gilbert, Administrator
CourtSupreme Court of Arkansas

Appeal from Jackson Circuit Court; S. M. Bone, Judge.

Affirmed if Remittitur is Entered.

Thos B. Pryor, Sr., H. L. Ponder, Sr., and John L. Daggett, for appellant.

Pickens & Pickens, for appellee.

OPINION

Knox J.

On September 30, 1942, Walter Sexton Gilbert was engaged in the service of his employer, A. J. Spicer, Inc., in the unloading of gravel from railroad cars which were stationed along a switch track at or near an air field then being constructed by his employer near Newport, Arkansas. The switch track was connected with the railroad line of the Missouri Pacific Railroad Company. In the performance of his duties Gilbert was required to sit on the side wall of the car out of which the gravel was being taken, and while he was in that position employees of the railroad pushed a string of cars on to the switch track and against the car on which Gilbert was working, with such force and violence that the collision thereof knocked Gilbert from his post and caused him to fall under the wheels of the car, severely cutting, bruising and lacerating him to the extent that he died from the injuries so received after suffering great conscious pain and mental anguish for a period of some nine and a half hours.

This suit was instituted to recover for the benefit of the estate, the widow and next of kin. The answer filed by appellants denied negligence, but at the trial in the course of the opening argument counsel for defendants admitted that the defendants were negligent and liable, and told the jury that the only question for them to determine was how much damages the plaintiffs were entitled to recover.

The prayer of the complaint sought recovery of three items of damage, to-wit: (1) $ 25,000 for the benefit of the widow for loss of consortium and companionship; (2) $ 75,000 for loss of earnings of the deceased, and (3) $ 25,000 for the benefit of the estate on account of conscious pain and suffering of the deceased.

The verdict of the jury awarded damages for each item claimed as follows: (1) For Della Gilbert for loss of consortium and companionship of her husband, $ 5,000; (2) for the benefit of the estate for conscious pain and suffering, $ 2,500; (3) for the benefit of widow and next of kin for loss of pecuniary contributions, $ 27,500.

Only two questions are argued on appeal, namely, that the court erred in allowing the jury to assess damages to the widow for the loss of consortium and companionship, and that the verdict for contribution was grossly excessive.

In the case of Helena Gas Company v. Rogers, 98 Ark. 413, 135 S.W. 904, it was held that sorrow caused by the death of the husband and loss of his companionship are not elements of damage to be recovered by the widow, for the reason that the statute (§ 1278, Pope's Digest) contemplates damages only "with reference to pecuniary injuries." At the request of counsel for appellants the court in the case at bar gave instruction No. 9, which told the jury that the widow's recovery for consortium was limited to such loss as might reasonably be regarded as being pecuniary in nature.

At the time the motion for new trial was filed and presented to the trial court counsel for the parties stipulated as follows: "It is further stipulated that the instruction to the jury that the jury should make separate findings in their verdict for loss of companionship and consortium was requested by the attorneys for the defendants."

In the brief filed on behalf of appellants here, and in the argument before the court, counsel for appellants frankly admit that they sought separate awards by the jury in the trial court so that they might have some basis for measuring the correctness thereof, and that they prepared the form of verdict, which was submitted to the jury by the trial court. They argue, however, that since the right of action is founded upon the statute the allowance of the recovery of damages not authorized by statute is inherently wrong, and beyond the power of the court, notwithstanding the absence of specific objection, and, also, notwithstanding the fact that the defendants requested a separate item verdict upon a form prepared by them, which included as one of the items loss of consortium.

It is well settled by the decisions of this court that the failure to object to an instruction ordinarily operates as a waiver of any error that may be committed in giving it. Likewise, upon the doctrine of invited error, a party cannot complain of an alleged erroneous action of the trial court if he himself has induced such action.

In the case of Wolff v. Alexander Film Co., 186 Ark. 848, 56 S.W.2d 424, we said: "It is next urged that the court erred in rendering judgment for the full amount of rentals less payments, as that is not the correct measure of damages. That was not an issue in the court below. Appellant defended on the sole ground of a breach of the contract. The question of the measure of damage was raised in the motion for a new trial for the first time. Since it was not an issue in the court below, it cannot be considered here on appeal."

As we view it, the instruction which authorized the jury to include in their verdict as an element of damage the loss by the wife of consortium and companionship of her husband amounted simply to an erroneous declaration as to the measure of damage in such cases and, since the question as to its correctness was raised for the first time in the motion for a new trial then, under the authority of Wolff v. Alexander Film Co., supra, it cannot be considered here on appeal.

We have reached the conclusion that the award of $ 27,500 for the benefit of the widow and children on account of pecuniary contributions is excessive.

In the case of Mo. Pac. Transportation Co. v Simon, 199 Ark. 289, 135 S.W.2d 336, many of our cases relating to awards for injury and death are reviewed, and it is disclosed that there exists a wide range in the amounts which have been awarded by juries, and allowed by this court, in cases where much similarity exists. In explanation thereof it was said: "In reading our own cases, many of which are not cited in this opinion (and a number of which might be shown as authority either for or against reducing judgments), the conclusion is inescapable that factors other than mere physical or...

To continue reading

Request your trial
22 cases
  • St. Louis Southwestern Ry. Co. v. Jackson
    • United States
    • Arkansas Supreme Court
    • 3 Marzo 1969
    ...& Tire Corporation v. Camfield, 233 Ark. 543, 345 S.W.2d 931; Robinson v. Martin, 231 Ark. 43, 328 S.W.2d 260; Missouri Pac. R. Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73. In order to say that an objection not raised in the trial court on the first trial cannot be raised on the second tria......
  • Rachel v. Rachel
    • United States
    • Arkansas Court of Appeals
    • 15 Julio 1987
    ...of an erroneous action of the chancellor if he has induced, consented to, or acquiesed in that action. Missouri Pacific Railroad Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944); Kansas City Southern Railway v. Burton, 122 Ark. 297, 183 S.W. 189 (1916); Briscoe v. Shoppers News, Inc., 10 ......
  • Cantara v. Massachusetts Bay Transp. Authority
    • United States
    • Appeals Court of Massachusetts
    • 21 Febrero 1975
    ...18 N.E.2d 542. The cases in other jurisdictions disclose such evidence to be generally admissible. Missouri Pacific R.R. v. Gilbert, 206 Ark. 683, 687, 178 S.W.2d 73 (1944). Central of Ga. Ry. v. Perkerson, 112 Ga. 923, 927--928, 38 S.E. 365 (1901). Miller v. McCoy Truck Lines, Inc., 243 Io......
  • Riley v. State Farm Mut. Auto. Ins. Co.
    • United States
    • Arkansas Supreme Court
    • 27 Julio 2011
    ...761 S.W.2d 942, 943 (1988) (citing Jones v. Dierks Forests, Inc., 238 Ark. 551, 383 S.W.2d 110 (1964); Missouri Pac. R.R. Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944)). This court has also long held that it will not review an alleged erroneous ruling or order unless a party makes know......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT