Scullin v. Vining

• Decision Date: 22 January 1917
• Docket Number: 114
• Citation: 191 S.W. 924,127 Ark. 124
• Parties: SCULLIN et al., RECEIVERS, MO. & NORTH ARK. RD. CO. v. VINING
• Court: Arkansas Supreme Court

191 S.W. 924

127 Ark. 124

SCULLIN et al., RECEIVERS, MO. & NORTH ARK. RD. CO. v. VINING

No. 114

Supreme Court of Arkansas

January 22, 1917

Appeal from Searcy Circuit Court; J. I. Worthington, Judge affirmed.

Judgment affirmed.

W. B Smith, J. Merrick Moore, H. M. Trieber and Gardner K Oliphant, for appellant.

1. The peremptory instruction requested by defendant should have been given. This was a mixed train. The jerk and injury were due solely to running the slack out of the train and unavoidable. The verdict is contrary to all the legal evidence. 10 Ark. 309; 118 Id. 352. The verdict is contrary to the physical facts. 71 Ark. 590; 83 Id. 22; 90 Id. 497; 4 Elliott on Railroads, § 1629. Negligence must be determined by the facts in every case. 7 Mo.App. 359; 55 Me. 444; 31 Ala. 508; 50 Ill. 65; 107 Mass. 496; 3 Allen (Mass.) 410.

Where the verdict is so shocking as to shock one's sense of justice this court will reverse. 10 Ark. 492; 34 Id. 639; 70 Id. 385; 26 Id. 309. The testimony of witnesses for plaintiff is incompetent--that of Clayton is uncontradicted but reasonable and consistent. 101 Ark. 532; 96 Id. 504; 80 Id. 396. The jerk was not a negligent one. Taking into consideration all the facts there was no negligence. 1 S.W. 140; 15 Id. 141; 79 Ark. 608. To entitle plaintiff to recover he must prove that defendant's negligence caused the injury. 75 P. 1047; 119 F. 572; 185 S.W. 768-773.

2. The testimony as to the jerk of the train being negligent was incompetent. They simply stated their opinions as conclusions of facts. 117 Mass. 137.

3. Excerpts from medical books were not admissible in evidence. 106 Ark. 100; 36 Kans. 17; 8 Me. 56; 12 Cush. 194; 59 Am. Dec. 178; 3 Chamb. Mod. Law of Ev., § 2528; Am. Ann. Cas. 1916-A. 793 and note; 106 N.E. 828; 59 Am. Dec. 178; 265 Ill. 338; 129 P. 258; 85 N.W. 1002; 212 Mass. 139; 69 Ark. 653.

4. The hypothetical questions propounded were contrary to the rule as laid down by this court. 100 Ark. 518; 87 Id. 242;

5. A physical examination should have been granted. The cases 46 Ark. 275; 66 Id. 481, and 93 Id. 589, tend to the effect that this is discretionary with the court; the court here abused its discretion. 47 Iowa 375; 46 Ark. 275; 148 N.W. 309.

6. The court erred in its charge to the jury. 99 Ark. 385; 93 Id. 564; 72 Id. 559; 87 Id. 321.

7. As to the assessment of damages, see 97 Ark. 358; 46 Am. Rep. 849; 30 L. R. A. 507; 106 Ark. 186; 87 Id. 243; 72 Id. 559; 82 Id. 424, 431. The instructions were erroneous. 90 Ark. 284; 13 Cyc. 144; 3 Hutch. on Car. 805; 61 N.W. 771. It must appear that the disability is permanent. "Probable" suffering or injury is not recoverable. 97 Ark. 365; 46 Am. St. 849; 46 Neb. 907; 106 Ark. 186; 87 Ark. 243.

8. The verdict should be set aside for misconduct of the jury. Affidavits were admissible. 34 Neb. 30; 51 N.W. 290; 40 Id. 317; 87 Id. 34; 55 Me. 568; 1 Swan, 61; 97 Tenn. 206; 36 S.W. 930; 40 Id. 1085; 53 S.W. 731; 75 N.W. 537-8; 26 S.E. 413.

9. Conclusion. This was no case for a jury; but if so, it should be reversed for the errors stated. 114 F. 465; 73 Id. 774; 69 Ark. 653; 111 Id. 134, and others.

Williams & Seawel, for appellee.

1. A prima facie case of negligence was established by proving an injury from the operation of a train. 34 Ark. 624; 73 Id.; 81 Id. 275; Ib. 579; 83 Id. 217; 84 Id. 81; 87 Id. 308; Ib. 581; 90 Id. 485; 105 Id. 22. The issue was settled by the jury and the decision is binding. 73 Ark. 377; 86 Id. 145; 89 Id. 321.

2. There was no error in the admission of testimony as to the character and extent of the jerk. The effect was a question for the jury. 62 Ark. 254-8-9; 93 Id. 124.

3. There was no error in the reading of extracts from standard medical authorities. It is true the authorities are conflicting, but the correct rule is laid down in 16 A. & E. Ann. Cases, 819. This case is ruled by 122 Ind. 225, 7 L. R. A. 90. The opinion of a witness may be tested by reading from medical works. 2 Best on Ev. 882-4; 131 S.W. 831. But if error, it was invited. 66 Ark. 292; 67 Id. 47; 75 Id. 251; 88 Id. 484.

4. The court did not err in permitting counsel to ask the hypothetical questions assigned as error. 58 Ark. 381.

5. There was no error in the instructions. 83 Ark. 217; 94 Id. 75; 123 Id. 428.

6. There was no error in the refusal to compel appellee to submit to further examination. No abuse of discretion is shown.

7. No act or language of any juror was sufficient to warrant a reversal. No objections were made to the statements of Barnett. The case was fairly tried and fully developed; the physical facts made a case for the jury and their finding should be conclusive.

OPINION

HART, J.

Appellee sued appellant to recover damages for personal injuries sustained by him by being thrown from his seat by a sudden, unusual and violent jerk of the train, while riding as a passenger on one of appellant's freight trains. The jury returned a verdict for appellee in the sum of $ 1,000.00 and the case is here on appeal.

It is insisted by counsel for appellant that the evidence is not legally sufficient to support the verdict. It is admitted that appellee was thrown from his seat while riding as a passenger in the caboose of one of appellant's local freight trains, but it is claimed that, if he was injured in consequence of being thrown from his seat, that there was no negligence on the part of the appellant. It was shown by witnesses introduced by appellant that the movement of the train at the time of the injury complained of was accompanied by only such jerks and jars as are incidental to the ordinarily careful operation of mixed trains. We need not set out this evidence for the reason that the legal sufficiency of the evidence must be tested in the view of appellee's evidence most favorable to him.

Several witnesses testified that they were present in the caboose at the time appellee was thrown from his seat and injured; and that they were in the habit of riding on freight trains and were accustomed to the usual jerks and jars of freight trains. One of the witnesses testified that he had ridden on freight trains about five thousand miles; that he had never seen any other jolt or jar of a freight train that was as hard as this one; that he counted it an extremely hard jolt; that he was thrown from his seat and was slightly injured thereby; that he had never been thrown around before and never before hurt by the jolt or jar of a freight train in which he was riding; that the train in question was a long train and that he knew the noise ordinarily made by a train of that length when it took up slack; that on the day in question the train slowed down and nearly came to a full stop; that without any warning it started up suddenly and the movement of the train threw appellee from his seat and severely injured him. Several witnesses testified to substantially the same state of facts. Appellee himself stated that he had paid his fare to the conductor when he boarded the train at Gilbert, Arkansas, and was going to Leslie, Arkansas, on a local freight train of appellant; that he had not ridden very far when the train slowed down and he thought it was going to stop; that he thought probably there would be a little jar when the train increased its speed and began to brace himself in his seat; that at that time the train started up with a jerk and he was thrown from his seat against the stove with great violence; that he had been engaged in railroading both as a brakeman and conductor and heard no signal of any kind when the train started up again; that the jerk which injured him was out of the ordinary and was unnecessary under the conditions of the train at that time. This testimony was legally sufficient to warrant the verdict in favor of appellee.

It is also insisted that this testimony was incompetent. We have carefully examined the testimony of each of these witnesses and think it was competent. Each witness testified that he was accustomed to riding on freight trains and showed that he knew the usual and ordinary jolts and jars in the operation of them. It may fairly be inferred from the testimony of each of them that the jolt in question was an unusual one and one that was not incident to the ordinary operation of a mixed train. It may be true that people who travel more on such trains might be better and more accurate judges than the witnesses in question, still the difference is only in degree, and the subject matter being one of more or less common knowledge, we think the testimony was competent. St. L. & S. F. R. Co. v. Brown, 62 Ark. 254, 35 S.W. 225; St. L., I. M. & S. R. Co. v. Richardson, 87 Ark. 101, 112 S.W. 212; St. L., I. M. & S. R. Co. v. Brabbzson, 87 Ark. 109, 112 S.W. 222; St. L. Sw. Ry. Co. v. Jackson, 93 Ark. 119, 124 S.W. 241.

It was the contention of appellee that his spine was injured and it was the contention of appellant that appellee was not injured but was simulating. On this branch of the case it is contended by counsel for appellant that the hypothetical questions propounded to two of the physicians by counsel for appellee were contrary to the rule governing such questions as laid down by the court in Taylor v McClintock, 87 Ark. 243, 112 S.W. 405, and Ford v. Ford, 100 Ark. 518, 140 S.W. 993. In those cases the court held that a hypothetical question must embrace all essential undisputed facts which bear upon the question, and must not embrace any statement or fact which there is no testimony tending to establish. The court further stated that a party has the right to take the opinion of a witness upon the undisputed essential facts and on every state of facts which he claims the evidence tends to establish. It is contended by counsel for appellant that the...