St. Louis, Iron Mountain & Southern Railway Co. v. Waren

• Decision Date: 05 November 1898
• Citation: 48 S.W. 222,65 Ark. 619
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. WAREN
• Court: Arkansas Supreme Court

48 S.W. 222

65 Ark. 619

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. WAREN

Supreme Court of Arkansas

November 5, 1898

Appeal from Bradley Circuit Court MARCUS L. HAWKINS, Judge.

Judgment reversed and cause remanded.

Dodge & Johnson, for appellant.

The evidence does not show negligence on the part of the company. Cooley, Torts, 630; 21 L. R. A. 820, note; 12 Am. & Eng. Ry Cas. 163; 76 Mich. 591; 113 Mo. 670; 53 N.J.L. 233; 112 Ind 404! 40 S.W. 863; 100 Pa.St. 144; 34 L. R. A. 459. If a child under 10 years of age is capable of understanding the obligation of an oath, he is a competent witness. 25 Ark. 96; 1 Greenl. Ev. § 367; 25 Ark. 448; 1 East. Pl. Cr. 442; McNally, Ev. 154; 10 Mass. 225; 1 Leach, Cr. Cas. 237; 19 So Rep. (Ala.) 530; 159 U.S. 524; 1 Whart. Ev. §§ 398, 399, 400; 1 Best, Ev. §§ 155, 156; 88 Wis. 180; 102 Mo. 270; 88 Ala. 147; 23 Minn. 104; 39 Tex. 129; 2 Allen, 295; 47 Ga. 524; 19 N.C. 648; 9 Ore. 457; 11 Ind. 196; 3 App. D. C. 335; 165 Mass. 427; 35 S.W. 174; 25 S.E. 626; 37 S.W. 771; 79 Hun, 23; 4 Burrow, 25, 29; 21 Ark. 329. No proper foundation was laid for the impeachment of witness Biggers. 27 S.W. 432; Sand. & H. Dig., § 2960; 37 Ark. 328; 16 How. 46; 20 Md. 269; 36 Mo. 161; 8 Humph. 663; 10 Yerg. 347; 12 Ala. 129; 8 Ark. 572; 15 ib. 359; 16 ib. 569; 52 Ark. 308; 73 F. 777. It was error to instruct the jury that it was the duty of all those running the train to keep a lookout. 62 Ark. 185. The second instruction given for plaintiff was erroneous, in that it is based on assumptions of facts which should be left to the jury. 14 Ark. 530; 16 Ark. 569; 31 Ark. 699; 14 Ark. 295. It was error for the court to substitute the words "due care" for "ordinary care" throughout appellant's instructions. See Webst. and Stand. Dictionaries, word "due;" 44 S.W. 1067, 1068; 76 Mich. 591; 113 Mo. 570; 53 N.J.L. 233. It was error to allow plaintiff's counsel to argue facts not in the record. Also, the applause of the bystanders at the close of the argument of plaintiff's counsel was prejudicial to appellant. 61 Ark. 137; 48 Ark. 131, 132; 44 Wis. 282; 58 Ark. 473; 49 Ark. 34; 105 Ind. 304; 156 U.S. 361; 37 S.W. 432; 75 Ind. 220; 59 Ark. 368. The verdict is excessive. 33 Ark. 365; 57 Ark. 377; 42 Ark. 527; Wood's Mayne, Dam. 746, and cases; 3 Suth. Dam. 259; 3 Sedg. Dam. § 1319; Lofft. (Eng. K. B.) 771; 36 F. 252; 9 R. I. 139; Style (Eng.), 466; 16 Pick. 547; 36 Kas. 58; 22 Mo. 170; 3 Kas. 244; 19 Barb. 461; 53 Ill. 407; 69 Ill. 475; 3 C. C. A. 147; 53 Ark. 10; 58 Ark. 472, 473.

George W. Murphy, for appellee.

The lookout should be such as is calculated to avoid accident. 63 Ark. 177; 64 Ark. 236. As to the competency of the child. Sand. & H. Dig., §§ 2915, 2916; 25 Ark. 448. The foundation for impeachment of appellant's witness was properly laid. 1 Greenl. Ev. § 462a; 52 Ark. 306; 37 Ark. 324; 86 Ind. 387; 56 Ind. 343-348; 2 Thomp. Tr. § 2756. The second instruction of plaintiff was proper. 91 Ill. 406. "Due care" means "reasonable care, adapted from the circumstances." 26 Am. Rep. 645; 10 Allen, 532; 54 Md. 656; 46 Ark. 513; 36 Ark. 41. Appellant, by not pressing the objection to the argument of appellee's counsel, waived it. 1 Thomp. Tr. § 957, 967. The verdict is not excessive. 31 L. R. A. 855; 75 F. 102; 33 Ill.App. 450; 32 N.Y.S. 915; 14 N.Y.S. 336; 24 Hun, 184; 39 Hun, 5.

OPINION

BATTLE, J.

Ester Waren, a child about two and a half years old, was knocked down and seriously injured by one of the trains of the St. Louis, Iron Mountain & Southern Railway Company. He instituted this action against the railway company to recover damages he suffered by reason of his injury. The main facts in the case are as follows: On the 24th of December, 1894, one of the defendant's trains, composed of seven cars, a caboose, and an engine, going north, arrived at Portland, a town in Ashley county, in this state. It arrived about 3:15 in the afternoon, and, after stopping at the depot for a short time, received orders to move on the side track, and await the arrival and passing of a south bound train due at 3:12 p. m. In obedience to these orders, it was backed down the main track according to the testimony of some witnesses, at the rate of six to eight miles, and of others at the rate of ten to twelve miles an hour. While the train was backing, some witnesses say that the bell upon the locomotive or engine was ringing, and others that they did not hear it; some say that there were two brakemen upon the cars keeping a lookout, and others that they saw no one, although they looked to see if any one was upon the train for that purpose. About or during this time Ester Waren was pursuing a flock of domestic geese in the street not far from the train. His aunt was sent to take him back to the house, where his mother was, which was about sixty yards from the railroad track, and near to where the boy was playing. As the aunt approached, the boy fled, and she pursued. In his effort to escape he ran upon the railroad track in front of the backing train, at a distance therefrom which was variously estimated by witnesses to be from twelve feet to sixty yards. His mother, seeing his danger, screamed aloud, and thereby gave a signal of great distress. Others hollowed, and waved their hand in an earnest effort to attract the attention of the trainmen to the boy's situation. But these signals of danger and distress were not seen or heard. The train, unchecked in its speed, struck the boy, ran over him, cut off both of his hands, and lacerated and seriously injured one leg and foot. From these injuries he suffered excruciating pain. Opiates were necessarily administered to enable him to endure it. When not asleep, he cried for his hands. He continued in that condition from four to six weeks. He has never been able to walk. He moves about with great difficulty by hopping; and in that way can travel only a short distance without resting.

Upon evidence tending to prove the foregoing facts, which was adduced in a trial before a jury, a verdict was returned in favor of the plaintiff against the defendant for the sum of $ 40,000; and a judgment was rendered accordingly. The defendant insists that this judgment should be reversed for the following reasons: (1) Because the court erred in refusing to allow Earle Newton, a lad of the age of 8 years, to testify in behalf of the defendant. (2) Because the court erred in instructing the jury, at the instance of the plaintiff, and over the objections of the defendant, as follows: "1. It is the duty of all persons running trains in this state upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employees of any railroad to keep such lookout, the company owning and operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, and the burden of proof shall devolve upon such railroad to establish the fact that this duty has been performed." (3) Because the court erred in refusing to instruct the jury at the instance of the defendant as follows: "The court instructs the jury that no railway company can be held liable for neglect where plaintiff by his own negligence has contributed to the injury, unless it was a willful injury, or one resulting from want of ordinary care on the part of the company to avert it after plaintiff's negligence has been discovered. And you must consider this without regard to the amount of negligence on each side. In other words, although you should believe that defendant company was in this case guilty of some negligence, and at first this negligence was the greater still you must find for defendant, if you further believe that the injury was caused by Ester Waren appearing suddenly and without warning upon defendant's track so near a backing train that his dangerous position by the exercise of ordinary care was not discovered in time to avoid the injury." And, in striking out the words "ordinary care," wherever they appear in the instruction, and substituting therefore the words "due care," and giving it as modified. (4) Because the court erred in refusing to give other instructions at the request of the defendant, and striking out the word "ordinary care," wheresoever the appear therein, and substituting therefor the words "due care," and giving them as modified. (5) Because the court erred in refusing to instruct the jury at the request of the defendant as follows: "31. The court instructs the jury that in the due and proper management of its trains, and in the movement thereof, the defendant's employees were not required, as a matter of law, to notice and obey signals given by persons not in the employ of the defendant company." (6) Because one of plaintiff's attorneys made improper statements while addressing the jury. (7) Because the damages rendered are excessive, and appear to have been assessed by the jury under the influence of passion or prejudice.

We will consider the alleged errors in the order stated.

First. The court properly refused to allow Earle Newton to testify. He, being under the age of ten years, was incompetent to testify, under the statutes of this state. Sand. & H. Dig., § 2916, sub-division 2.

Second. The instruction as to "the duty of all persons running trains in this state upon any railroad to keep a constant lookout for persons and property upon the track" should not have been given. An instruction to the reverse was held to be correct in St. Louis S.W. Ry. Co. v. Russell, 62 Ark. 182, 34 S.W. 1059. Unexplained by other instructions, it would have been prejudicial to the defendant.

Third and Fourth. In striking out the...