Railway Co. v. Sweet

• Citation: 21 S.W. 587,57 Ark. 287
• Parties: RAILWAY CO. v. SWEET
• Decision Date: 11 February 1893
• Court: Supreme Court of Arkansas

21 S.W. 587

57 Ark. 287

RAILWAY CO. v. SWEET

Supreme Court of Arkansas

February 11, 1893

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

Mrs Ada H. Sweet, as administratrix of Frank Sweet, brought suit in the Jefferson circuit court, against the St. Louis, Iron Mountain and Southern Railway Company to recover damages to the widow and next of kin by the death of her intestate, who while a passenger on defendant's road, was killed by the derailment and over-turning of the caboose car on which he was riding. The answer charged contributory negligence on the part of deceased.

On May 26, 1891, the cause was transferred to the Desha circuit court, for the Watson district. At 2 o'clock p. m. on July 24, 1891, the transcript and papers were filed in that court. On August 3, 1891, the circuit court to which transfer was made convened, and the cause was called for trial during the term. Defendant moved for a continuance upon the grounds (1) that the transcript and papers had not been filed in the office of the clerk of Desha county more than ten days before the commencement of the term, and (2) that an important and material witness, J. G. McIlwain, was absent, who, if present, would swear that he was the conductor of the freight train upon which Frank Sweet was riding at the time that he received the injuries from which it is said he died; that said Sweet, at the time of the accident, was sitting in a chair, which was movable, in front of the open door of the caboose, with his feet resting in the door; that this was an unsafe and dangerous place to ride upon a moving train; and that an employee of defendant requested deceased, Sweet, not to sit in said door, at the same time informing him that the place in which he was then sitting was dangerous, and to move his chair back into the car, and away from the door, which deceased, Sweet, neglected to do; that if deceased, Sweet, had been sitting back in the caboose, he would not have been killed.

The court overruled the first ground in the motion for a continuance. The second ground for a continuance was overruled upon plaintiff's agreeing that the witness if present would testify as stated.

Mrs. Sweet was permitted, against defendant's objection, to testify that neither she nor the railway company had paid for the casket in which her intestate was buried; and that the undertaker had told her that he would look to her for it.

A witness, McKennon, was permitted, over defendant's objection, to testify that the absent witness, McIlwain, had told him, after the accident, that, at the time the caboose turned over, Sweet was in the center of the car opposite the door.

Plaintiff recalled T. B. Atkinson, who visited the wreck upon the engine which had come to Pine Bluff and returned with the surgeons. To quote the bill of exceptions verbatim: "Q. When you went down to the wreck did you see Mr. McIlwain, the conductor? A. Yes sir. Q. Did you see this brakeman, George Singleton, this yellow man? A. I would not state positively. I saw two or three brakemen, but I could not state positively that I saw him. Q. Did you make inquiry as to how this accident occurred? A. Well, we were all discussing the affairs, of course. Q. Did you ask the conductor anything about how it happened? A. I asked the engineer. Q. Was the conductor present at the time? A. I think not. Q. Did you hear George Singleton or McIlwain undertake to explain how Sweet was sitting or standing, or how he got out of the car at the time of the accident? A. Well, I just heard some one of these train men remark that he undertook to jump out of the door of the car after the train began to tilt that way, and that was the last they saw of him until the thing was over. Q. When you say he, whom do you mean, 'he undertook to jump?' A. Mr. Sweet. Q. (By the court.) I am to understand that these train men and you were all standing there, and that you just heard some one of them make that remark? A. Yes sir. Q. (By the court.) Nobody disputed it? A. No. sir."

Here defendant, by attorneys, moved the court to exclude from the jury this evidence of witness Atkinson, which motion was by the court overruled, and the defendant company at the time excepted.

The court over defendant's objection gave the following instructions asked by plaintiff, and referred to in the opinion, viz:

1. "If the jury find from the evidence that defendant railway received the plaintiff's intestate on one of its freight trains as a passenger, then it was bound to the highest practicable care and diligence to protect him from injury while he was such passenger."

2. "If the jury find from the evidence that defendant railway received plaintiff's intestate as a passenger on one of its trains, then it owed to him as such passenger, and was bound to the utmost diligence which human skill and foresight could effect. Any injury to him occasioned by reason of the slightest omission in regard to the highest perfection of all the appliances of transportation, or the mode of management at the time the injury occurred, would render the carrier liable for such injury."

The jury returned a verdict for plaintiff for $ 25,000, the full amount sued for. Defendant has appealed, and insists that the court erred in permitting the introduction of the testimony objected to and in giving the instructions quoted.

Judgment reversed and cause remanded.

Austin & Taylor and Dodge & Johnson for appellant.

1. The Desha circuit court had no jurisdiction to try the case at the time it was tried. The transcript and papers were not filed more than ten days before the court met. Mansf. Dig. sec. 6484; 42 Ark. 93; 52 id. 404; 37 id. 491.

2. Mrs. Sweet's testimony as to the casket was incompetent, as this was not a suit for the benefit of the estate, and funeral expenses were no part of the damages recoverable.

3. The testimony of McKennon was incompetent and illegal. The facts detailed were no part of the res gestae, and no foundation was laid to impeach defendant's witness. Acts 1887, p. 19; Mansf. Dig. sec. 2902-3; 37 Ark. 328; 8 id. 572; 15 id. 359; 16 id. 569; 52 id. 308.

4. The testimony of Atkinson was hearsay. 119 U.S. 105; 95 N.Y. 274; 12 Oregon, 392; 58 Mich. 156; 26 O. St. 185; 2 P. 130; 51 N.Y. 298, 102; 41 Conn. 59; 78 N.Y. 503; 15 W.Va. 628; 50 Ark. 397; 52 id. 80.

5. The first and second prayers given for plaintiff were erroneous in this particular case. To tell the jury that on a freight train "the highest practicable care and diligence" and "the utmost diligence which human skill and foresight can effect" is required, was simply to tell the jury that in this case the railway company was liable. The true rule is laid down in 52 Ark. 524-5. See 14 How. 486; 97 Mass. 361; 56 Ill. 138; 34 A. & E. R. Cas. 405; 2 Wood, Ry. Law, sec. 301, pp. 1074, 1079; Hutch. on Car. secs. 502, 529; Patterson, Ry. Ac. Law, sec. 247. The highest practicable care and diligence, reasonably consistent with the carrier's business, and appropriate to the means of conveyance employed, is all that is required in the operation of freight trains. Cases sup.; 97 Mass. 368; Hutch. Car. p. 405. The prayers were too broad, and the rule too rigid. 34 A. & E. R. Cas. 556; 27 id. 216, 313. This error was not caused by giving the third and fourth prayers. The fifth instruction as to the measure of damages is erroneous. The jury are told to give whatever sum they deem necessary for the pecuniary loss sustained, taking into consideration all the circumstances of the case. This is not the law. The law gives "fair and just compensation with reference to the pecuniary injuries resulting from the death." See 55 Ark. 468; 51 id. 515; 41 id. 382.

6. The court erred in refusing defendant's fourth prayer and in modifying same. 27 A. & E. R. Cas. 213.

7. The language of plaintiff's counsel was improper. 26 N.W. 781; 16 id. 710; 2 N.E. 126; ib. 296; 1 id. 491; 8 P. 327; 20 N.W. 687; 16 id. 384; 11 id. 174; 48 Ark. 131; 44 Wis. 282; 27 A. & E. R. Cas. 118; 25 Ga. 225; ib. 24; 15 Ga. 395; 4 E. D. Smith, 253; 53 Mo. 509; 82 Mo. 67; 41 N.H. 213; Thomps. Jury Trials, sec. 963.

8. The verdict is excessive. Mansf. Dig. sec. 5226; 41 Ark. 388; 5 Wall. 90; 19 Kas. 83; 18 Q. B. 93; 48 Pa.St. 420; 18 La. An. 280. The jury must form their estimate of the amount of loss upon such facts in proof as tend to show the extent of the pecuniary loss sustained, taking into consideration the age of the deceased and all such other evidence as may afford the means of making the estimate. 18 Ill. 349; Field on Dam. sec. 649; 24 La. 550; 29 Gratt. 431; 21 N.W. 711.

U. M. & G. B. Rose, N. T. White and White & Woolridge for appellee.

1. It is shown that the ties were rotten, and that the track spread. The happening of the accident raised a presumption of negligence. 34 Ark. 613. This the railroad has not endeavored to rebut. The act of Sweet in sitting in a chair in a caboose is not negligence per se, even if he had been warned. We find only one case adjudging the precise question, and that is against the appellant's contention. 34 A. & E. R. Cas 547; S. C. 73 Iowa 458. But there are many cases where the question of contributory negligence or not must be submitted to the jury, as for instance: Riding unnecessarily on a railroad platform is negligence per se, but upon a street car platform is not. 39 A. & E. R. Cases, 441; 37 id. 204; 39 N.W. 866; 27 A. & E. R. Cas. 201; ib. 151; 16 id. 374, and notes. So, whether it is contributory negligence or not to alight from a slowly moving train is a question for the jury. 46 Ark. 423; 49 id. 182. For other instances, see 44 A. & E. R. Cases, 373; 84 Ga. 687; 21 A. & E. R. Cas. 456; 111 Ill. 219; 39 Mo. 468; 3 A. 672. If the act is not one which all reasonable men would concur...