St. Louis, Iron Mountain & Southern Railway Company v. Williams

• Decision Date: 19 May 1913
• Citation: 158 S.W. 494,108 Ark. 387
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. WILLIAMS
• Court: Arkansas Supreme Court

158 S.W. 494

108 Ark. 387

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

Supreme Court of Arkansas

May 19, 1913

Appeal from Jackson Circuit Court; R. E. Jeffery, Judge; reversed.

STATEMENT BY THE COURT.

Appellee brought this suit for damages for personal injuries, alleged to have been sustained while a passenger, boarding appellant's passenger train at Oliphint, Arkansas.

It was alleged that the railroad company negligently failed to stop the train a reasonable length of time to enable her to enter the car, negligently caused the train to give a quick and sudden start, and then to come to a quick and sudden stop while she was on the steps of the platform, causing her body to be violently twisted and jerked, and to be wounded bruised and lacerated upon the body and limbs, causing internal injuries in the region of the stomach, sexual organs, hips and back, from all of which injuries she has suffered great physical pain and mental anguish, and that her injuries were permanent, etc.

The defendant denied all the allegations of negligence and pleaded contributory negligence of appellee in bar of the action.

The plaintiff testified that she was a woman of twenty-five years of age, the mother of two children; that she bought a ticket from the agent of the railroad company at Oliphint, got on the train, and just as she got to the platform, the train started up with a jerk and threw her back; that she caught with her hand, and the train stopped suddenly and threw her on her side, and that her side struck the hand railing. She said further that she went on to Newport, the point of her destination, and went to the doctor's office to consult him about the injury. No witness corroborated her statement as to the injury, or occurrence, and she made no complaint to any of the railway employees about having been injured.

All of the train crew testified, each of them stating that there was no rough handling of the train in the stop at Oliphint on the morning on which plaintiff claimed to have received the injury. That the train was stopped the usual length of time that it was not started up and stopped again after the first stop was made, and that no complaint was made by any one of any injury that morning. The porter stated that he did not know of any rough handling of the train at Oliphint on that morning; that plaintiff was not thrown backward or forward by the starting or stopping of the train while she was getting on or off, and that she made no complaint about being hurt on the train, and that if she had done so he would have told the conductor about it.

Several physicians testified, as experts, as to the effect, result and permanency of the injury, two of them giving opinions over the objections of the railroad company, based upon the history of the case as related to them; one of them, Doctor Brown, when he was consulted by her for treatment shortly after the injury was alleged to have occurred, and the other Doctor Jones, upon his examination, made after the suit was brought, and who treated her after Doctor Brown left the city.

Doctor Jones stated: "At the time of my first examination February 13, 1912, the patient gave me a history of her case. She said she had never had any female trouble in her life, and had borne two children, and at that time their ages were eleven and three; had never had a miscarriage. On September 24, 1911, she had been jerked by the train. She said she got on the train at Oliphint, and that the train started with a jerk as she reached the top step. 'It snatched me,' she said. 'About five minutes later, I noticed a burning pain in the left side. This hurting went into the opposite side the following day, and the whole abdomen was very sore and tender.' Her menstruation, or monthly flow, started the following day and stayed five days. 'It came five days earlier than my time,' she said. Since the injury, her monthly flow lasts five and six days, whereas, before, it only lasted about three days. She suffers from painful menstruation ever since the injury; had never suffered before that time. She has suffered from leuchorrhoea since her injury, and she was never bothered with it before. She can not lift or stoop, her back hurts most of the time, standing or walking causes pains in her left side, and she has headache 'most every day.'" From this history and diagnosis, the physician was permitted to state, over objections, reaching to his repetition of the statement of how the injury occurred, his opinion as to the cause of the trouble.

Doctor Brown, whom she claims to have consulted on the day of the injury, said he found her in his office lying on a lounge, and she gave him a history of the case, stating how the injury occurred, and that she seemed to be suffering pain at the time, and he found a slight discoloration upon the muscles of the left loin, and there seemed to be some inflammation there.

This testimony was also objected to, being based upon the history of the case given by appellee.

These physicians testified that the enlargement of the neck of the womb, the inflammation inside thereof, and the disease of the fallopian tube was attributable to, and resulted from, the blow and the injury received. Two other physicians testified that it was not possible to produce any such internal injury as was claimed resulted from the blow and bruises. That such conditions could not result from an external injury.

There was also testimony relating to the probable permanent disability of appellee and her earning capacity.

The court instructed the jury, and from the judgment on their verdict against the railroad company, it brings this appeal.

Judgment reversed and cause remanded.

E. B. Kinsworthy, Campbell & Suits and T. D. Crawford, for appellant.

1. The court's instruction 8, on the measure of damages, was erroneous in that it left the jury to their opinion as to the amount they should award for bodily pain and suffering, instead of limiting their opinion or belief by the evidence, which they could not arbitrarily disregard. 105 Ark. 205; 93 Ark. 209.

2. It was error to permit the medical experts to testify as to the cause of plaintiff's condition, based upon a history of her case as related to them by the plaintiff, herself. 184 Mo. 19; 203 Ill. 192; 35 F. 730; 4 L. R. A. (N. S.) 460; 88 Mich. 598, 16 L. R. A. 437; Lee v. Kansas City Southern Railway Company, in U. S. Court, Western District, Ark., Texarkana Division, ms. op. by Youmans, D. J.; 36 Ark. 124.

3. Where the remarks of an attorney are of such character that their exclusion from the jury will not cure the injury done, a motion to exclude them need not be made, and the question as to whether they were improper may be presented on appeal. 2 Okla.Crim. 362, 102 P. 57; 4 Okla.Crim. 641, 111 P. 1002.

4. The verdict is grossly excessive. 76 Ark. 193.

Jones & Campbell, for appellee.

1. Instruction 8 was not erroneous. The construction the jury would naturally put upon it would be that they should assess such damages for pain and suffering, if any, as they believed, or found, from the evidence to exist. If there was any objection to the omission of the words, "from the evidence," after the word "believe," it should have been specially presented. 104 Ark. 327; 97 Ark. 409; 89 Ark. 522; 88 Ark. 16; 102 Ark. 640; 93 Ark. 209.

2. There was no error in admitting the testimony of the medical experts. 104 Ark. 606; 55 Ark. 258; 1 Wigmore on Ev., § 668; 62 P. 747; 210 Ill. 508; 54 Ill. 485; 2 Jones, Law of Ev., § 352; 1 Greenleaf (16 ed.), § 430 l.; 135 Ia. 264; 132 Mass. 439; 48 Wis. 513; 6 Humph. (Tenn.) 347; 61 Am. Dec. (Ky.) 188; 16 Tex. Civ. App. 93; 11 Ark. 139; 5 Cyc. 613; Id. 608; 43 N.J.L. 86; 181 Mass. 202; 109 Cal. 673; 11 Cinc. S.Ct. 98; 18 Tex. Civ. App. 560; 48 Vt. 350; 61 F. 580.

3. If there was any impropriety in the argument of counsel, it should have been objected to at the time. Even if an objection had been made, the argument under the circumstances was not improper. 100 Ark. 221; 86 Ark. 607; 98 Ark. 93; 91 Ark. 93; 91 Ark. 576; 32 L. R. A. 145.

4. The damages awarded are not excessive. 101 Ark. 183; 88 Ark. 226.

OPINION

KIRBY, J., (after stating the facts).

It is urgently insisted that the court erred in permitting the medical experts, Doctors Brown and Jones, to testify as to the cause of appellee's condition from a history of her case as related to them by her, and repeated by them to the jury, and with this contention we agree.

There was no testimony relating to the occurrence of the injury as claimed by appellee, except her own statement of it. All the employees of the railroad company on the train testified that the train stopped a reasonable length of time for the taking of passengers aboard; that there was no rough handling or unusual jerking of it, and that it did not start up and stop again, after stopping at first, as appellee claimed it did. The description of the occurrence of the injury, as related to these two physicians and by them to the jury, as part of the history of the case, upon which they based their opinions, necessarily resulted in bolstering up the statement of the appellee as to the occurrence of the injury. The jury might have inferred from it that she told the truth upon the stand, about...