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

• Decision Date: 18 May 1895
• Citation: 31 S.W. 571
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. SWEET.
• Court: Arkansas Supreme Court

31 S.W. 571

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

Supreme Court of Arkansas.

May 18, 1895.

Appeal from circuit court, Desha county; John M. Elliott, Judge.

Action by Ada H. Sweet, administratrix of Frank Sweet, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Austin & Taylor and Dodge & Johnson, for appellant. N. T. White, H. K. White, W. T. Woolridge, and Rose, Hemingway & Rose, for appellee.

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 passenger, was derailed, and Sweet 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 $25,000. The judgment was for $10,000. 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 had 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 section 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 1st 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. 305; State v. McNamara, 60 Ark. 400, 30 S. W. 762; Vaughan v. State, 58 Ark. 353, 24 S. W. 885; 1 Greenl. Ev. § 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 S. W. 885, and authorities there cited; Rogers v. State, 60 Ark. 76, 29 S. W. 894; Railroad Co. v. Murphy, 60 Ark. 333, 30 S. W. 419.

3. The third assignment has been abandoned.

4. This court has ruled adversely to the contention of appellant on the fourth assignment in Railway Co. v. Higgins, 53 Ark. 458, 14 S. W. 653.

5. The appellant contends that so much of the third instruction as told the jury that "it was the duty of the defendant in the operation of its trains to exercise the highest degree of care, diligence, and skill" was erroneous. This language does not mean "the utmost diligence which human skill and foresight could effect," which was the language condemned by this court when the case was here on a former appeal. Railway Co. v. Sweet, 57 Ark. 287, 21 S. W. 587. Nor does it state the rule more broadly or rigorously than is approved by the highest authority. Railroad Co. v. Derby, 14 How. 486; The New World v. King, 16 How. 469; Railroad Co. v. Lockwood, 17 Wall. 357; Railroad Co. v. Horst, 93 U. S. 291; 2 Redf. R. R. 219; Hutch, Carr. § 501; 2 Wood, Ry. Law, p. 1074; Cooley, Torts, pp. 642, 643; Railroad Co. v. Wightman's Adm'r, 29 Grat. 431. See, also, George v. Railway Co., 34 Ark. 613; Railway Co. v. Miles, 40 Ark. 298. However, to preclude all possibility of misconception of such general terms as "highest degree of care," the trial court should always explain them, so as to show that the care exacted of railway companies towards their passengers is the highest degree of care which a prudent and cautious man would exercise, and that which is reasonably consistent with their mode of conveyance and the practical operation of their roads. Railroad Co. v. Thompson, 56 Ill. 138; Railway Co. v. Murray, 55 Ark. 248, 18 S. W. 50; Railway Co. v. Canman, 52 Ark. 524, 13 S. W. 280; Railway Co. v. Timmons, 51 Ark. 459, 11 S. W. 690; Railway Co. v. Sweet, 57 Ark. 287, 21 S. W. 587. This is what the trial court did in several of the instructions given on motion of the appellant. There is therefore no occasion to complain of the language employed in the charge under consideration. Fordyce v. Jackson, 56 Ark. 594, 20 S. W. 528, 597. But plaintiff abandoned the allegation of negligence on the part of the railroad "in the proper care and management of its train." The proof shows that the plaintiff relied solely "upon the careless and negligent conduct of the defendant...