Roy v. Oregon Short Line Railroad Co., 6115

CourtUnited States State Supreme Court of Idaho
Writing for the CourtGIVENS, J.
Citation55 Idaho 404,42 P.2d 476
Docket Number6115
Decision Date18 December 1934
PartiesSIDNEY G. ROY, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

42 P.2d 476

55 Idaho 404

SIDNEY G. ROY, Respondent,
v.

OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

No. 6115

Supreme Court of Idaho

December 18, 1934


MASTER AND SERVANT-INJURY TO SERVANT-ACTION FOR DAMAGES-ASSUMPTION OF RISK - NEGLIGENCE-INSTRUCTIONS-EVIDENCE-PAIN AND SUFFERING, EXPRESSIONS OF-TRIAL-ORDER OF PROOF-FEDERAL EMPLOYERS' LIABILITY ACT-EXCESSIVE VERDICT-APPEAL-SCOPE OF REVIEW.

1. In action for injuries to railroad switchman, testimony of plaintiff's wife whether her husband was in pain when he was in hospital, and as to what she observed, held not objectionable as hearsay.

2. Testimony as to expressions of natural and spontaneous character, indicating present bodily pain, is competent as original evidence; but declarations of injured party as to his past feelings and suffering, or which are not voluntary exclamations of existing pain and suffering, are mere hearsay, and should be rejected.

3. In action for injuries to switchman, testimony whether plaintiff had stated that previous injury to his fingers would bar him from work on any "class one railroad" held properly excluded as immaterial, where witness stated that he did not know what a "class one railroad" was.

4. Refusal to instruct that switchman assumed risk of negligent method of operation of railroad of which he knew, or which was so apparent and obvious that he was charged with notice thereof, held not error, where court properly instructed that employee must exercise ordinary care to discover unexpected and extraordinary risks (Federal Employers' Liability Act (45 U.S. C. A., sec. 51 et seq.) ).

[55 Idaho 405]

5. Instruction placing on employee duty of establishing by preponderance of evidence that he did not assume ordinary obvious risks of his employment held properly refused, where employee did not attempt to prove that he did not assume such burden, but sought to recover for extraordinary risk of which he was not aware (Federal Employers' Liability Act (45 U.S. C. A., sec. 51 et seq.) ).

6. Whether, if coal cars had been switched with reasonable care and speed and if they had been properly loaded, lump of coal would not have been thrown therefrom with sufficient force to knock switchman under moving cars, held for jury (Federal Employers' Liability Act (45 U.S. C. A., sec. 51 et seq.) ).

7. In switchman's action for loss of arm below elbow, exhibition of plaintiff's arm, though unnecessary, since nature of injury was admitted, held not prejudicial.

8. In action for injuries to switchman, defendant could not complain on appeal of alleged improper remarks of plaintiff's counsel where no ruling by court was asked or made, and instruction or admonition, requested and given, would have cured alleged error.

9. State court hearing case under Federal Employers' Liability Act, while bound by terms of such act as construed by United States Supreme Court in so far as it related to substantive law, may proceed in matters of practice and procedure in accordance with local rules and practice of state (Federal Employers' Liability Act (45 U.S. C. A., sec. 51 et seq.) ).

10. In action for injuries to switchman under Federal Employers' Liability Act, state Supreme Court had power to modify judgment conditionally by reducing damages (Federal Employers' Liability Act (45 U.S. C. A., sec. 51 et seq.) ).

11. Damages for injuries to servant on account of master's negligence should be computed, ascertained and awarded on basis, as nearly as possible, of compensating servant for pain, suffering and loss he has sustained and will sustain in future on account of the injuries, and servant should be placed, as nearly as it is possible to estimate, in as good a position as he was in before injuries.

12. On appeal of action for injuries where members of Supreme Court were not in accord on question of excessive character of verdict, and one of justices favored affirming judgment in toto, two favored affirming in sum of $25,000, one favored reversal and new trial as to amount of damages, and one favored reduction to $20,000, judgment was affirmed conditionally in the sum of $25,000. [55 Idaho 406]

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Appeal from judgment for damages. Modified and affirmed conditionally.

Modified and affirmed with costs in favor of respondent.

George H. Smith and H. B. Thompson, for Appellant.

It is a violation of the rule against hearsay and self-serving declarations to permit a witness to testify as to what a plaintiff who has had time and opportunity to deliberate has stated concerning pain and suffering. (Erickson v. Edward Rutledge Timber Co., 33 Idaho 179, 185, 191 P. 212; Johnson v. Powell, 87 Kan. 142, 123 P. 881; Raymond & Whitcomb Co. v. Esbary, 9 F.2d 889, 893.)

Except as provided in section 4 of the Federal Employers' Liability Act (which excludes assumption of risk in any case in which the violation by the carrier of any statute enacted for the safety of employees contributed to the death or injury of an employee), the employee assumes all the ordinary risks of his employment; and when obvious or fully known or appreciated, he assumes the extraordinary risks, and those due to negligence of his employer and fellow employees. (Delaware L. & W. R. Co. v. Koske, 279 U.S. 7, 11, 49 S.Ct. 202, 73 L.Ed. 578, 581; Erie R. Co. v. Purucker, 244 U.S. 320, 37 S.Ct. 629, 61 L.Ed. 1166.)

Thirty-five thousand dollars is a grossly excessive verdict for the loss of a left hand and forearm and attendant pain by a switchman thirty-two years old and earning less than seventy-five dollars a month. (Chesapeake & Ohio Ry. Co. v. Arrington, 126 Va. 194, 101 S.E. 415, 423, 424; notes to L. R. A. 1915F, 239, 241; 46 A. L. R. 1304, 1305.)

Peterson, Anderson & Bowen and Milton E. Zener, for Respondent.

Exclamations and complaints as to pain are admissible in evidence. (3 Jones' Commentaries on Evidence, p. 2226; Buell v. Park Auto Transp. Co., 132 Wash. 92, 231 P. 161.)

The matter of assumption of risk is generally a question for the jury. (Kanawha & M. Ry. Co. v. Kerse, 239 U.S. 576, 36 S.Ct. 174, 60 L.Ed. 448; Mumma v. Philadelphia & R. Ry. Co., 275 Pa. 277, 119 A. 287; Lehigh Valley R. Co. v. Skoczyla, 278 F. 378.)

Amount of damages in a personal injury action is committed first to the jury and next to the trial court, and will not be set aside unless the verdict is so plainly and outrageously excessive as to suggest at first blush passion, prejudice or corruption on the part of the jury. (Krause v. Rarity, (Cal.) 283 P. 886, 285 P. 879; 210 Cal. 644, 293 P. 62, 77 A. L. R. 1327; Slaughter v. Goldberg, Bowen & Co., 26 Cal.App. 318, 147 P. 90; Bond v. United Railroads, 159 Cal. 270, 113 P. 366, Ann. Cas. 1912C, 50, 48 L. R. A., N. S., 687.)

GIVENS, J., AILSHIE, J. Budge, C. J., Wernette, J., Givens, C. J., and Holden, J., concurring. Morgan and Holden, JJ., dissent. BUDGE, J., Concurring in Part and Dissenting in Part.

OPINION [42 P.2d 477]

[55 Idaho 407] GIVENS, J.

Respondent was a fieldman of a switching crew employed by appellant in its yards. Cars shunted onto track No. 5, collided with another car previously switched thereon. Respondent claims a piece of coal was, because of excessive speed, bumped out of the cars, hitting him and knocking him down and under the cars, which ran over his left arm severing it above the wrist, necessitating the removal of the hand and a part of the forearm, below the elbow.

Under the Federal Employers' Liability Act, section 51, title 45, U.S.C. A., respondent charged negligent switching and handling of the cars at high speed, overloading and failure to keep a lookout as to where the first car had stopped on track No. 5. Appellant denied negligence and urged contributory negligence.

In this appeal from the ensuing judgment of $ 35,000, entered on a like verdict, appellant first assigns as error the overruling of its objections to questions asked respondent's wife as to whether respondent indicated by his conversation that he was in pain during the time he was in the hospital, to which she answered "Yes," and in overruling [55 Idaho 408] appellant's objection as to what she observed, as violating the hearsay rule because plaintiff had time and opportunity to deliberate before such statements.

"Testimony as to expressions of a natural and spontaneous character, indicating present bodily pain, is competent as original evidence; but the declarations of an injured party as to his past feelings and suffering, or which are not voluntary exclamations of existing pain and suffering are, mere hearsay, and should be rejected." (Sly v. Powell, 87 Kan. 142, 123 P. 881, 883.)

The evidence was admissible. (Alabama Great Southern R. Co. v. Molette, 207 Ala. 624, 93 So. 644; Chicago, R. I. & P. Ry. Co. v. Isom, 136 Ark. 624, 203 S.W. 271; Mielke v. Dobrydnio, 244 Mass. 89, 138 N.E. 561; San Angelo Water, Light & Power Co. v. Baugh, (Tex. Civ. App.) 270 S.W. 1101; 3 Jones' Commentaries on Evidence, pp. 2226 and 2231; Nichols v. Kluver, 61 N.D. 42, 237 N.W. 640.)

Bowen, a witness for appellant, was asked whether the respondent had stated to him that a previous injury to his fingers would bar him from work on any "class one railroad" in the United States. The court sustained respondent's objection of immateriality. No sufficient foundation was laid for this question, showing what a "class one railroad" was, or if there was in fact such a thing in existence. Mr. Bowen stated that he did not know what a "class one railroad" was, thus the ruling was not erroneous. (22 C. J. 300.)

Appellant has withdrawn its objection to the failure to give requested instruction No. 3 and the alleged failure to instruct on the preponderance of the evidence; therefore it will not be considered.

Appellant complains of the refusal of the trial court to give its...

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11 practice notes
  • Geist v. Moore, 6408
    • United States
    • United States State Supreme Court of Idaho
    • 22 Julio 1937
    ...Assn., 28 Idaho 657 at 681, 156 P. 115; Kinzell v. Chicago etc. Ry. Co., 33 Idaho 1 at 20, 190 P. 255; Roy v. Oregon Short Line R. R. Co., 55 Idaho 404, 42 P.2d 476, distinguishing Reinhold v. Spencer, 53 Idaho 688, 700, 26 P.2d 796 thus: "Counsel for respondent rely chiefly on the case of ......
  • Asumendi v. Ferguson, 6308 and 6309
    • United States
    • United States State Supreme Court of Idaho
    • 26 Febrero 1937
    ...Co., 16 Idaho 375, 102 P. 347.) Evidence of the condition of the remains of the deceased is admissible. (Roy v. Oregon Short Line R. Co., 55 Idaho 404, 42 P.2d 476; Nichols on Applied Evidence, vol. 2, p. 1641, par. 55; Leahy v. Southern P. Ry. Co., 65 Cal. 150, 3 P. 622; Goodale v. Hathawa......
  • Summerfield v. Pringle, 7087
    • United States
    • United States State Supreme Court of Idaho
    • 15 Diciembre 1943
    ...in this case is more excessive than anything ever approved by this court even in a death case. In Roy v. O. S. L. R. Co., 55 Ida. 404, 42 P.2d 476, the jury returned a verdict of $ 35,000 damages and this court ordered a reduction of $ 10,000 and affirmed the judgment in the sum of $ 25,000......
  • Luther v. First Bank of Troy, 7022
    • United States
    • United States State Supreme Court of Idaho
    • 30 Enero 1943
    ...Winston Bros. Co., 18 Idaho 740, 111 P. 1080; Kinzell v. Chicago etc. Ry. Co., 33 Idaho 1, 190 P. 255; Roy v. Oregon Short Line R. R. Co., 55 Idaho 404, 42 P.2d 476.) If, however, passion and prejudice evidently entered into the jury's deliberations not only as to the amount of the verdict ......
  • Request a trial to view additional results
11 cases
  • Geist v. Moore, 6408
    • United States
    • United States State Supreme Court of Idaho
    • 22 Julio 1937
    ...Assn., 28 Idaho 657 at 681, 156 P. 115; Kinzell v. Chicago etc. Ry. Co., 33 Idaho 1 at 20, 190 P. 255; Roy v. Oregon Short Line R. R. Co., 55 Idaho 404, 42 P.2d 476, distinguishing Reinhold v. Spencer, 53 Idaho 688, 700, 26 P.2d 796 thus: "Counsel for respondent rely chiefly on the case of ......
  • Asumendi v. Ferguson, 6308 and 6309
    • United States
    • United States State Supreme Court of Idaho
    • 26 Febrero 1937
    ...Co., 16 Idaho 375, 102 P. 347.) Evidence of the condition of the remains of the deceased is admissible. (Roy v. Oregon Short Line R. Co., 55 Idaho 404, 42 P.2d 476; Nichols on Applied Evidence, vol. 2, p. 1641, par. 55; Leahy v. Southern P. Ry. Co., 65 Cal. 150, 3 P. 622; Goodale v. Hathawa......
  • Summerfield v. Pringle, 7087
    • United States
    • United States State Supreme Court of Idaho
    • 15 Diciembre 1943
    ...in this case is more excessive than anything ever approved by this court even in a death case. In Roy v. O. S. L. R. Co., 55 Ida. 404, 42 P.2d 476, the jury returned a verdict of $ 35,000 damages and this court ordered a reduction of $ 10,000 and affirmed the judgment in the sum of $ 25,000......
  • Luther v. First Bank of Troy, 7022
    • United States
    • United States State Supreme Court of Idaho
    • 30 Enero 1943
    ...Winston Bros. Co., 18 Idaho 740, 111 P. 1080; Kinzell v. Chicago etc. Ry. Co., 33 Idaho 1, 190 P. 255; Roy v. Oregon Short Line R. R. Co., 55 Idaho 404, 42 P.2d 476.) If, however, passion and prejudice evidently entered into the jury's deliberations not only as to the amount of the verdict ......
  • Request a trial to view additional results

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