Railway Co. v. Sweet

• Citation: 31 S.W. 571,60 Ark. 550
• Parties: RAILWAY COMPANY v. SWEET
• Decision Date: 18 May 1895
• Court: Arkansas Supreme Court

31 S.W. 571

60 Ark. 550

RAILWAY COMPANY v. SWEET

Supreme Court of Arkansas

May 18, 1895

Appeal from Desha Circuit Court, Watson District, JOHN M. ELLIOTT Judge.

Action by Mrs. Sweet against the St. Louis, Iron Mountain & Southern Railway company. The facts are stated in the opinion.

Judgment affirmed.

Austin & Taylor and Dodge & Johnson for appellant.

1. The Desha court had no jurisdiction. No notice was given to appellant, as required by sec. 5798, Sand. & H. Dig.

2. The third prayer given at plaintiff's request was erroneous as applied to this particular case. 57 Ark. 298; 52 id. 524; 14 How. 486; 97 Mass. 361; 34 Am. & Eng. Ry. Cases, 405; 2 Wood, Ry. Law, sec. 301, pp. 1074-9 and eases cited; Hutch on Car., secs. 502, 529; Patterson, Ry. Acc. Law, sec. 247; 93 U.S. 291.

3. The fourth prayer for plaintiff was erroneous, and tended to increase the amount of damages, when there was no proof justifying same. 57 Ark. 315; 59 Ill. 534; 46 Ia. 195; 28 Oh. St. 199; 37 Mich. 205; 93 Ill. 302; 19 Kas. 83; 48 Pa. 320; 18 Ia. 290; 18 Ill. 349; 41 Ark. 388; 51 id. 515.

4. The verdict is excessive. 52 F. 378; 41 Ark. 388; 57 id. 321; Ib. 384; 29 Gratt. 431; 16 S.W. 929; Ib. 240; 48 F. 663.

5. Deceased was guilty of such contributory negligence as precludes a recovery in this case. 89 Mo. 233; 84 Ga. 651; 38 F. 822.

6. It was error to admit the testimony of Roan Sykes. Sand. & H. Dig, sec. 2978. The statute means "deposition," in its legal and proper sense. Rap. & L. Dic. p. 377; 3 Blatch. 456; 42 Ark. 285; 47 id. 180; 58 id. 242; 46 id. 378. These authorities all refer to depositions, and not to statements made on a former trial. No foundation was laid for its introduction.

7. It was error to allow the jury to carry with them the original complaint, upon which was endorsed the former verdict. 16 Pet. 166, 147; 1 Ark. 590; 6 N.H. 148; 5 Pick. 297; 17 Ga. 415. It did not devolve on appellant to show that this important evidence was read by the jury, for a verdict cannot be impeached by the affidavits of jurors. 29 Ark. 293; 35 id. 109; 60 N.Y. 648; 5 Col. 276. See 11 Iowa 62; 53 Ark. 46; Hayne on New Trial and Appeal, sec. 68; 45 Barb. 98; 4 Greene (Iowa), 32; 50 Ill. 250; Progatt on Jury Trial, secs. 390-392; 19 N.H. 148; 8 Barb. 47; 3 Foster (N. H.), 497; 19 Ill. 480; 30 N.W. 682; 11 Iowa. 65; 25 Ga. 494; 4 Yerg. 111; 56 Me. 493; 1 Brev. 16; 18 B. Mon. 291; 32 N.W. 246.

N. T. White, H. K. White, W. T. Woolridge and Rose, Hemingway & Rose for appellees.

1. The case was tried on the day fixed by agreement between counsel upon the respective sides. Every witness subpoenaed by appellant was present except one, and he was dead. A similar objection was overruled in 57 Ark. 287.

2. The third instruction correctly defines the extent of care to which defendant was bound in operating its trains, i.e., "the highest degree of care, diligence and skill." 93 U.S. 291; 40 Ark. 298; Hutch. on Car. sec. 501; 2 Wood, Rys., p. 1074; Cooley, Torts, pp. 642-3; 34 Ark. 625; 51 id. 467; 52 id. 524; 55 id. 254; 53 id. 466; 56 id. 594.

3. The court properly instructed the jury that the decedent's character and business qualifications could be considered in determining what pecuniary loss the widow and children had sustained. Hutch. on Car. 784; 3 Suth. Dam., secs. 1267-8-9; 37 N.Y. 287; 91 Pa.St. 185; 29 Grat. 431. Testimony that deceased was sober, industrious, trustworthy, reliable and capable, was a sufficient showing of his fitness to render services in rearing and educating his children, and the court properly instructed the jury to consider the value, if any, of his instruction and training to his children. 57 Ark. 321; 24 N.Y. 471: 29 id. 282; 29 Grat. 431; 93 Ind. 523; 28 Wis. 522. The only case where it is held that proof is necessary to warrant the instruction is 52 Ill. 290. See 2 Sedg. Dam., p. 214, note b.

4. The verdict is not excessive. Sweet was 34 years old, and contributed $ 850 per annum to the support of his family, and it would take $ 10,827 to purchase an annuity, at 6 per cent., to replace the loss. This makes no allowance for increased earnings, or the value of his services in rearing his children. See 75 Tex. 61.

5. The question of contributory negligence was settled by the verdict of the jury. Even if Sweet sat in a chair, this was not negligence per se, but presented a question for the jury. 34 A. & E. Ry. Cases, 545; 73 Iowa 458.

6. Sykes being dead, his testimony on a former trial of the same cause, between the same parties, was competent. 58 Ark. 370-1; 9 Mo.App. 5; Gr. Ev., sec. 166.

7. The taking the complaint by the jury to their room, with the verdict in the former trial thereon endorsed, does not warrant a reversal. 53 Ark. 458.

OPINION

WOOD, J.

This suit was brought by the administratrix for herself, as the widow, and her children, as the next of kin, to recover damages for the killing of Frank Sweet. The complaint in substance charged that, "by reason of the careless and negligent conduct of the defendant railway company in the care and maintenance of its track, and the proper and careful management of its train," one of its cars, upon which Frank Sweet was a passenger, was derailed, and he was run over, and killed.

The answer admitted that Sweet was a passenger, and that he was killed, but denied negligence, and charged Sweet with contributory negligence. Damages were laid at twenty-five thousand dollars. The judgment was for ten thousand dollars. The company appeals, and asks to reverse, for the following reasons, to-wit: (1) The court erred in forcing defendant to a trial when the mandate of this case has not been returned, or filed in the Desha circuit court within a reasonable time before the convening of that court, and for the further reason that no notice of the filing of said mandate, reasonable or otherwise, had been served upon defendant, as by law required. (2) Because the court erred in permitting the testimony of Roan Sykes to be read to the jury. (3) Because the court erred in permitting witness Atkinson to give incompetent testimony in evidence to the jury. (4) Because the court erred in permitting the jury to carry with them into the jury box the verdict rendered in the former trial, all of which was to the prejudice and injury of this defendant. (5) Because the court erred in giving to the jury instructions 3, 4, and 5, as asked by plaintiff. (6) Because the court erred in refusing to give instruction 10, as asked by defendant. (7) Because the verdict is contrary to law. (8) Because it is contrary to the evidence. (9) Because the verdict is excessive, and is the result of prejudice and passion, and is not sustained by the evidence.

1. The object of sec. 5798, Sand. & H. Dig., providing for filing of the mandate with the clerk and reasonable notice to the adverse party, or his attorney of record, before the commencement of the term, was to give ample opportunity to said party to make preparation for another trial. The requirement may be waived by agreement, but where this has not, been done, and there is a failure to comply with the statute, this court will not reverse because of the refusal of the lower court to grant a continuance on account of such failure, where no prejudice is shown to have resulted to the party asking the continuance. The appellant was not prejudiced. Notice was served upon its attorneys of record on the 31st day of July, 1893, that the mandate of the supreme court would be filed with the clerk of the Desha circuit court on the first day of August following. The mandate was filed on that day. The term did not commence until the 7th of August. The attorneys for the appellant joined with the attorneys for appellee in a request to the clerk to set the cause for hearing on the 9th of August. the third day of the term. It is true that the attorneys for appellant expressly reserved the right, in this request, to object to the trial if they saw proper. But the appellant does not suggest or show that it was not advised of the contents of the mandate in time to have prepared for trial. All the witnesses for appellant had been summoned, and were present, except one, and the attorneys for appellant admitted that he was dead. The court was right in overruling the motion for continuance.

2. The bill of exceptions recites that "the plaintiff offered in evidence the testimony of Roan Sykes taken at a former trial of this cause. The defendant objected to the introduction of said testimony, but the court overruled said objection, and permitted the plaintiff to read in evidence the testimony of the said Roan Sykes, as taken at a former trial of the cause, to which the defendant at the time saved all proper exceptions." It was shown that this witness had died since the former trial. This being the case, his testimony at that trial was competent in a subsequent trial of the same issue between the same parties. Green v. State, 38 Ark. 304; McNamara v. State, ante, p. 400; Vaughan v. State, 58 Ark. 353, 24 S.W. 885; 1 Gr. Ev., sec. 163.

The objection of appellant to this testimony was general. It presented no specific grounds for its exclusion. Nowhere is it suggested that the manner of proving the testimony of this witness was improper. A general objection reaches only the relevancy and competency of testimony. This was competent and relevant. But counsel argue here that the testimony of Sykes was inadmissible because it was read from a bill of exceptions prepared for the purpose of an appeal from a former judgment, and because the foundation for its introduction was not sufficient. Had these objections been made before the trial court, if tenable, doubtless the court would' have had them removed,' or else have excluded the testimony. Vaughan v. State, 58 Ark. 353, 24...