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

• Decision Date: 20 January 1913
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BIRD
• Court: Arkansas Supreme Court

153 S.W. 104

106 Ark. 177

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

Supreme Court of Arkansas

January 20, 1913

Appeal from Union Circuit Court; George W. Hays, Judge; reversed unless remittitur is entered.

STATEMENT BY THE COURT.

J. H Bird, as next friend of Wharton Bird, brought this suit in the Union Circuit Court against appellant to recover damages for injuries to Wharton Bird alleged to have been caused by the negligence of appellant. Judgment was rendered in favor of the appellee in the sum of $ 11,000. While considering the motion for a new trial the court offered to require the appellee to remit the sum of $ 3,000 if the appellant would waive errors and accept judgment in the sum of $ 8,000. This the appellant declined to do and the motion for a new trial was overruled and appellant duly prosecutes its appeal.

The facts are substantially as follows: Hillsboro street in El Dorado runs east and west and crosses four or five tracks of appellant's railroad, which runs north and south. The east track is the Newport Stave Mill switch, and the track next west of it is No. 4, on which the accident happened. J H. Bird and Wharton, his seven-year-old son, were driving in a wagon loaded with cottonseed hulls, going westward on Hillsboro street about 2 o'clock in the afternoon on November 15, 1910, and were approaching the railroad tracks with the intention of crossing them. As they got to the first track there were to their right and north of the street a stave mill and a loading platform, and on the first track several freight cars. A switch engine was at the time north of the street and running southward on the second track approaching the crossing. Just before Bird got to the crossing he checked his team by pulling the lines, but did not stop. He slowed up and looked and listened for trains. He didn't hear any because the stave mill was running. The track next to the stave factory, as far as he could see, was covered with box cars. There were some cars standing on some of the tracks to the left, but they didn't come as close on that side as they did on the other. There was a car right up to the crossing on the right-hand side that kept him from seeing the track. That was the direction the engine was coming from. He could not see the track at all in that direction and could not see the engine. After he looked for it and could not see it he drove on the track without knowing whether or not the engine was coming back of those cars. He knew there were switch engines constantly running around there. He didn't get out to look for it and that is the only way that he could have seen it, and he does not know whether he could have seen it then or not because there was a curve to the east. It would not have been out of his sight until it was about 200 yards from where the accident occurred.

The wagon was loaded bed-full. He whipped his ponies in order to get across as soon as he could. He was sitting with his feet hanging off the front end of the wagon body. Wharton, his son, was sitting right about the middle of the wagon. When he passed beyond the cars he saw the engine forty or fifty feet away. He knew then that they could not get across. He made a grab at the child with his left arm and missed it. When he hit the ground he looked up and saw the child about six feet up in the air, his feet up and head down. The engine had knocked the wagon from under him. He was lying within two feet of the drive wheels of the engine in an unconscious condition, making a whining noise.

The testimony on behalf of appellee showed that the bell was not ringing nor the whistle blowing as the engine approached the crossing. There was testimony on behalf of the appellant tending to show that the bell was ringing up to the time the engine hit the wagon, but the decided preponderance of the evidence was to the effect that no signals were given as the engine approached the crossing where the accident occurred.

The testimony on behalf of appellant tended to show that the standing cars on the track near the crossing were flat cars loaded with bolts; that the engine could be seen above these cars by one standing on the ground, and necessarily by those in wagons; that Bird and his son were both looking towards the south and didn't look towards the north, whence the engine was coming. The engine ran only a few feet to the opposite side of Hillsboro street after it struck the wagon.

The testimony was conflicting as to the speed of the engine as it approached the crossing. One witness testified that the engine was running twelve or fifteen miles an hour; others said it was running four or five miles an hour. As the engine approached the crossing, the testimony tended to show that there was a switchman standing on the footboard at the front end looking ahead; that the engineer was also in his cab looking out ahead.

There was testimony on behalf of the appellant that the switchman saw Bird's team as soon as it appeared from behind the standing freight cars on the first track and at once shouted and continued to shout until he had to step off to avoid being hit.

The engineer testified that he put on the brakes in emergency as soon as he saw the horses' heads on the track, and saw them just as soon as they came in his line of vision, and the engine was then only a few feet from the wagon. There was testimony tending to show that the boy fell on his head in the street, making a wound like a cow-lick in his hair grinding the dirt and cinders into the hide, not breaking the skin; that he was unconscious from the fall, and there was no physical evidence of injury except the bruise on his head. The next day his temperature was 101, showing fever, and on the way home after the accident he vomited a little blood and passed blood in his urine for twenty-four or thirty-six hours afterwards.

About four days after the accident the boy had a spasm and nervous spell in which his limbs jerked and he cried and appeared nervous and frightened, which lasted several minutes, and these spells occurred about every one to three weeks from that time on to the date of the trial, a period of eleven months. They lasted from five to forty minutes.

Before the accident he was a quiet child. Since the accident he has been very nervous and irritable; "seems to like more racket than he did before." He played and went more than he did before. Before the accident his health was good; never had any symptoms of being nervous. Since the accident he had lost flesh and his appetite was poor.

The testimony of physicians showed that the child had an adherent prepuce, that is, the foreskin adhered to the head of the penis a part of the way around. This was congenital.

There was testimony of physicians as experts on behalf of the appellee showing that in their opinion the adherent prepuce as described in the case of Wharton Bird would not cause the physical condition that he was in. They "would attribute his condition to the fright and traumatism rather than to the adhesion of the prepuce to the penis."

On the other hand, physicians as experts testified that in their opinion the physical condition of the child was produced by the adherent prepuce rather than by the injuries. The physicians concurred in the opinion that it would require only a simple operation to correct the adherent prepuce. The testimony of physicians as experts also tended to show that an adherent prepuce would produce the symptoms present in the affliction of Wharton Bird. The plaintiff offered to have the boy produced before the jury if appellant desired, but the child was not before the jury.

Other facts will be stated in the opinion.

Judgment reversed and cause remanded.

E. B. Kinsworthy, H. S. Powell and R. E. Wiley, for appellant.

1. "In order to justify the assessment of damages for future or permanent disability, it must appear that a continued or permanent disability is reasonably certain to result from the injury complained of." 13 Cyc. 144; 3 Hutchinson on Carriers, § 805; 3 Kan.App. 693, 43 P. 802; 104 Ind. 264; 107 Ind. 32; 45 Ia. 416; 47 Hun, 429; 15 N.Y. 11; 75 N.W. 231, 72 Minn. 291; 90 S.W. 1155, 111 Mo.App. 706. See 90 Ark. 278, 284.

No recovery can be had for "probable" future suffering, or "probably" permanent injury. 97 Ark. 358, 365. See also 89 Wis. 371, 46 Am. St. Rep. 849; 46 Neb. 907; 45 Ill.App. 44; 20 Barb. 282; 30 L. R. A. 504, 507. Instruction 2 requested by appellant should therefore have been given.

2. Instruction 6 given at appellee's request was erroneous, in that it permitted the jury to assess damages for the probable future effect of the impairment of his nervous system on his mental and physical condition. 97 Ark. 358, 365. The error in that instruction was not cured by instructions 3 and 4, given at appellant's request, for they conflict with and contradict it, and the court can not tell which instruction the jury followed. 96 Ark. 311, 314.

3. The verdict, in the light of the evidence, is grossly excessive, being for such an amount as to evidence passion and prejudice on the part of the jury against the appellant. Kirby's Dig., § 6215; 39 Ark. 387, 393; 5 Ark. 620, 628; 74 Ark. 327; 39 Ark. 491; 90 Minn. 499, 97 N.W. 433; 90 Ill. 74; 29 P. 1086; 27 S.W. 453, 458; 22 Fed. Cases, 1030; 31 Col. 82; 77 P. 78, 79, 80; 23 P. 560.

Gaughan & Sifford, for appellee.

1. It is not necessary to show that a personal injury is permanent in order to recover for an injury caused by the negligence of a railway company, and in none of the instructions given at appellee's request are the words "permanent injury" mentioned.

2. The sixth instruction correctly states the law, and differs from the instruction criticised in the St. Coner case, 97 Ark 365, relied on by ...