St. Louis, I. M. & S. Ry. Co. v. Hydrick

• Decision Date: 07 July 1913
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. HYDRICK.
• Court: Arkansas Supreme Court

160 S.W. 196

ST. LOUIS, I. M. & S. RY. CO. v. HYDRICK.

Supreme Court of Arkansas.

July 7, 1913.

Appeal from Circuit Court, Independence County; R. E. Jeffery, Judge.

Action by I. P. Hydrick against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

On May 17, 1912, I. P. Hydrick was a passenger on appellant's train from Newport to Swifton, Ark. After the train whistled for Swifton, the name of the station, "Swifton," was announced, and when the train stopped Hydrick left his seat to debark from the train and when he got on the platform of the car the train pulled up with a jerk and Hydrick fell off. The train first stopped, then pulled up with a jerk, throwing Hydrick "about middle ways of the depot." Hydrick's leg was so badly injured that it had to be amputated. He remained in bed on account of the injury about two months. Besides the injury to his leg, he was injured in the left foot and about his stomach. His appearance indicated, a short time after the injury, that he had quite a loss of blood; he was quite thin, looked bad, and from his appearance indicated that he endured a great deal of pain. He instituted this suit against the appellant, alleging that he was a passenger, and when appellant's train stopped at Swifton, his destination, he undertook to alight, and that appellant's servants suddenly jerked the train forward, producing the injury of which he complained. The defendant answered, denying the allegations of the complaint and setting up affirmatively the defenses of contributory negligence and assumed risk. The above are the facts in regard to the negligence of appellant and the injuries received by appellee. Willie Hydrick testified that the doctor's bill of Dr. Willis for attending his father was $221. He said that Dr. Willis presented his bill and it was something over $200. Appellee's counsel presented the bill to the witness, and witness identified it as Dr. L. E. Willis' bill for medical and surgical attention. Counsel then offered the bill in evidence. The appellant objected. Witness was asked how much the bill showed, and answered, "$221."

V. G. Richardson, a witness for appellee, testified that he saw a statement from Dr. Justis to Ison Hydrick for services, which the doctor wrote in his presence and handed it to witness. Witness identified the statement, and read the same to the jury, as follows: "Swifton, Ark., Nov. 5, 1912. Mr. Ison Hydrick, Newport, Ark., in account with Dr. S. Justis. For services rendered in amputation of leg, $25.00. Dr. S. Justis." The court overruled the objection to the above testimony, and appellant saved its exceptions.

During the taking of the testimony, Hydrick, the plaintiff, was assisted by one of his attorneys to the witness stand in the presence of the jury, and, after he was identified as the plaintiff in the case, the defendant objected to his testifying in the case. The court sent the jury out of the room, and, after investigation, determined that the plaintiff was not a competent witness in his own behalf. When the jury returned into court, the plaintiff was not again offered as a witness. No ruling of the court was made as to whether or not plaintiff was a competent witness; counsel for the plaintiff not insisting upon his testifying.

One of the attorneys for the plaintiff, in his argument to the jury, stated that the jury should consider the personal disfigurement and loss of his limb that will attend him through life. Defendant's counsel objected to the remarks and asked the court to instruct the jury that the same were improper. The court declined to so instruct the jury, and defendant excepted, whereupon the attorney stated further, "If they (defendant) wanted to object, they ought not to have cut his leg off," and to the latter statement, upon the objection of the defendant, the court stated that that was an improper statement and ought not to influence the jury in the case.

Another one of the attorneys for the plaintiff, in the course of his argument, stated: "The court tells you to bring in a verdict for the pain he has suffered; and not only that, but for the loss of the limb." Whereupon the defendant objected, and the court overruled the objection and declined to instruct the jury that this was improper argument and exceptions were saved; but the court stated to the jury: "Not for the loss of the leg; the disfigurement of the body." Whereupon said attorney continued: "If that is not the loss of it I don't know; you will find how he is disfigured by getting his leg cut off, and it is gone." Whereupon defendant objected to this statement, which objection was overruled by the court, and the court declined to instruct the jury that this was improper argument, and exceptions were saved.

Continuing, the attorney stated: "Don't bring him in a six-bit verdict; don't turn the railroad loose for mangling this man; don't let him go through the balance of his life an object of pity and charity, but bring him in a substantial verdict, a verdict that you would like to have brought in for you if you had lost a limb, one you would believe to be just to you if you were in that attitude. Bring in such a verdict as you believe this man is entitled to and don't be sparing with it; base it on the word `just,' and don't base it on the word `unjust.'" The defendant objected to these statements and requested the court to instruct the jury that the same were improper argument. The court overruled the objection, and declined to so instruct, to which exceptions were duly saved.

Another one of the attorneys for appellee, in his closing argument, stated: "Put yourself in the place of the railroad. If you were carrying on a business and you had some man employed, and by reason of his carelessness and negligence you had to pay damages, would you keep him in your employment a moment? You wouldn't. No reasonable man would do it. If railroad companies are not individuals, they are controlled by individuals, and they would act as men would act, and they don't and ought not to keep men in their employ that would do negligent things for which they had to pay damages. That is the reason we are entitled to damages. I am appealing to you as reasonable men. I know my Brother Campbell (defendant's attorney) wouldn't want this case reasoned out. I am reasoning this case. I am giving you my reasons for my contentions in this matter. If these railroad men were to come and say they were negligent, their employer would have to pay damages, and, of course, their employer would hold them responsible, Of course, they are excusing themselves. Whenever one does a thing that injures another, he always tries to excuse himself and throw it on the other fellow. Dr. Willis' bill was $221. Dr. Justis' bill for assisting in the amputation of the foot was $25. That is $246, and there is $3 for medicine that we can account for. That is $249 actual expenses. Put that onto what you say a man ought to have that has lost his foot by reason of the negligence of somebody else; that suffers pain in the loss of that foot, the mashing of the other, the wounding of the stomach, still suffers pain; and say what would you have it done to you for, what would you want; and then fix his damages in accordance with that." Defendant objected to each of the above statements and requested the court to instruct the jury that same were improper; but the court overruled the objections, declined to so instruct, and the defendant duly excepted.

At the request of the plaintiff the...