St. Louis, Iron Mountain & Southern Ry. Co. v. Hairston

• Decision Date: 02 October 1916
• Docket Number: 172,183
• Citation: 188 S.W. 838,125 Ark. 314
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RY. CO. v. HAIRSTON
• Court: Arkansas Supreme Court

188 S.W. 838

125 Ark. 314

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RY. CO. v. HAIRSTON

No. 172,183

Supreme Court of Arkansas

October 2, 1916

Appeal from Pope Circuit Court; M. L. Davis, Judge; reversed.

Judgment reversed.

Thos B. Pryor and W. P. Strait, for appellant.

1. The verdict in this case is so greviously wrong as to shock one's sense of justice. 70 Ark. 386; 34 Id. 632; 10 Id. 492. Hairston's evidence was evidently false and untrue as shown by all the evidence in the case.

2. The verdict in this case was the result of the improper and prejudicial remarks and argument of counsel. The admonition of the court did not cure the error or remove the prejudice nor did the withdrawal of the improper remarks do so. The transgression was flagrant and the effect of the remarks were not removed by the admonition of the court or retraction by counsel. 70 Ark. 308; 76 N.W. 462; 103 Ill. 333; 74 Ark. 259; 100 Id. 459; 77 Id. 238; 65 Id 625; 75 Id. 468; 63 Id. 174; 74 Id. 210; Id. 239; 76 Id. 276; 65 Id. 389; 70 Id. 179; 76 Id. 370; 89 Id. 58; 87 Id. 461; 87 Id. 515; 81 Id. 25.

3. The court erred in refusing instructions Nos. 8 and 9 asked for by appellant. The master is not liable for the independent acts of his servant, done outside the scope of his employment. 93 Ark. 397; 101 Id. 586; 58 Id. 381; 77 Id. 606; etc.

4. Appellee was a trespasser and the company owed no duty except not to injure him wantonly or willfully or by gross negligence after his peril was discovered, etc. 45 Ark. 246.

5. Dr. Smith, a witness was not sworn. 30 A. & E. Enc. of L. 910-911; 92 Ark. 150; 14 Id. 502; 22 Id. 86.

Hays & Ward, for appellee.

1. The evidence in this case is conflicting, but the jury evidently and rightly believed the testimony for the plaintiff as to how the injury occurred, and this court will not disturb the finding, where there is any substantial evidence to sustain it. 102 Ark. 200; 101 Id. 121; 98 Id. 259; 94 Id. 165; 92 Id. 200; 91 Id. 425; 78 Id. 1, and others. A verdict is final on review of facts. 89 Ark. 111; 90 Id. 100; 146 S.W. 855.

2. It was within the scope of employment for a brakeman to see that persons other than the train crew did not ride on the cars. It was the brakeman's duty to enforce this rule of the company and eject trespassers. This was properly submitted to the jury. 100 Ark. 314; 90 Id. 19; 89 Id. 92; 146 S.W. 482; 75 Ark. 579; 58 Id. 381; 48 Id. 177; 42 Id. 542.

3. Railway companies have been held liable for injuries to trespassers, resulting from threatening language which caused them to lose their presence of mind and fall from trains. 14 P. 172; 40 S.W. 932; 77 Am. St. 829.

4. The remarks of counsel were but an expression of opinion; were promptly withdrawn and excluded by the court from consideration by the jury. There could be no prejudicial effect upon the jury. 100 Ark. 437; 98 Ark. 87; 34 Id. 658; 20 Id. 619; 104 Id. 528; 89 Id. 92; 92 Id. 48; 90 Id. 406; 82 Id. 64; 73 Id. 73; 71 Id. 435; 48 Id. 123.

As to the remarks of Mr. Hays, made in answer to Judge Bullock's argument, it was a clear case of invited error. 122 Ark. 509; 112 Ark. 261; 104 Id. 528.

5. The instructions properly presented the case to the jury. 100 Ark. 214. They correctly define the measure of damages. 65 Ark. 619; 87 Id. 641; 81 Id. 187. Those refused were mere repetitions of those given. 104 Ark. 489; 97 Id. 405; 23 Id. 282; 16 Id. 184.

6. The facts testified to by Dr. Smith were undisputed and amply proven. His failure to be sworn was a mere oversight and his testimony was not material nor untrue. 98 Id. 228; 111 Ark. 159.

SMITH, J. MCCULLOCH, C. J., dissenting.

Mr. Justice KIRBY concurs.

OPINION

SMITH, J.

Suits were brought for Benjamin Hairston, a minor about eighteen years old, by his father as his next friend, and by his father on his own account, to recover damages to compensate a personal injury caused by a freight car of appellant's train running over and crushing one of the boy's feet. The suits were consolidated and tried together, and judgments for substantial sums--which, however, appellant does not complain against as excessive--were rendered in both cases.

The evidence in the case is sharply conflicting, and no attempt is made to reconcile it. According to the boy, his injury occurred under circumstances which warrant a finding of liability against the railroad company; while, according to the evidence of the company, there was no liability whatever. The cause appears to have been submitted to the jury under proper instructions, and under the well established rule that we do not pass upon questions of mere preponderance of the evidence, we would affirm the judgment of the court below as being sustained by legally sufficient evidence if only the question of the sufficiency of the evidence was involved. Seven witnesses testify as to the circumstances under which young Hairston was injured. According to his own testimony he had beaten his way on a freight train from his home in Morrilton to Russellville, and was returning home from Russellville in a box car, with two companions, all of whom were "beating their way." Two brakemen, who were stationed in the caboose about fifteen cars behind the box car in which appellee and his companions took passage, observed their presence there, and one of these brakemen, a man named Young, went to this car and ordered Hairston and his companions out of it. That this command was given him after he had told the brakeman that he had no money to pay him, but the brakeman, with profane language and menacing threats, compelled him to climb out of the door of the car, and while he was so doing the brakeman threw some object at him which struck him on the forehead and rendered him unconscious, and when he regained consciousness he found that he had fallen under the train and that his foot had been crushed. He admitted that he had at first explained his injury by stating that the brakeman had kicked him in the face and caused him to fall. The almost physical impossibility of this last statement is apparent when the relative situations of the parties is considered, the brakeman being on top of the car while Hairston was climbing out of the side door. Hairston made no attempt to reconcile his conflicting statements except to say that when he made his first explanation he was only talking, while at the trial he was "swearing now."

According to the evidence of his two companions, Hairston debarked from the car in safety, and was injured as he attempted to catch another car. That Hairston was an expert in catching trains and had been seen frequently to catch trains running faster than this train was going at the time of his injury. These companions of Hairston are substantially corroborated by the brakemen, and also by a farmer and his son who witnessed the injury from their field where they were at work.

Some conflict appears in the evidence of witnesses for appellant as to whether Young's head was lying towards the north or the south as he looked into the car where the boys were riding, and much importance is attached to this discrepancy by counsel, who insists that because of it the jury disregarded most of the evidence which was in conflict with that of Hairston.

It is urged that error was committed in permitting a doctor who had examined Hairston's injuries to testify without having been sworn. This question was raised for the first time after the verdict had been returned. Counsel explained the failure to raise the question earlier by stating that they were not advised of the fact sooner. The integrity of the trial cannot be thus defeated. The case does not present the question of a witness who was permitted to testify after refusing to be sworn or of the grant of permission to a witness to testify without having first taken the oath prescribed by law. It is a mere case of inattention for which, no doubt, appellant is as much responsible as the appellee. At any rate, the error is one which appellant could easily have avoided, and it is, therefore, one of which it is now in no position to complain. Similar questions have been raised in regard to jurors who have been permitted to serve who did not possess the qualifications required by law, and in such cases it has been uniformly held that where no imposition was practiced, whereby the juror was permitted to serve, that complaint would not thereafter be heard when no effort had been made to elicit from the juror the facts from which his incompetency would have appeared. Brown v. St. L. I. M. & S. R. Co., 52 Ark. 120, 12 S.W. 203; James v. State, 68 Ark. 464, 60 S.W. 29; Casat v. State, 40 Ark. 511. We must so hold in regard to this witness.

The record contains the following recital: "In his closing argument to the jury, A. S. Hays, one of the attorneys for the plaintiff, stated to the jury: 'Gentlemen, Judge Bullock said we should all be honest. Yes, we ought to be. But I state to you that the defendant is not honest in this case and is trying to avoid payment of its just liability. Now, in the Burriss case the railway company admitted its liability but denied the plaintiff was injured. In this case it admits the injury but denies the liability. No, gentlemen, the railway company don't admit liability and injury both in the same case.'" Whereupon the attorney for the appellant objected to the above statement, when Mr. Hays said: "I am making this statement in answer to Judge Bullock's remarks a while ago about honesty of the parties." An objection was thereupon overruled by the court. Whereupon Mr. Hays turned to the attorney for the defendant company and in a loud voice so that the jury could hear his remarks said: "Write it out; put it in the record. I stand upon the statement." Counsel for appellant at...