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

• Decision Date: 16 May 1910
• Citation: 129 S.W. 537,95 Ark. 310
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. OSBORNE
• Court: Arkansas Supreme Court

129 S.W. 537

95 Ark. 310

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

Supreme Court of Arkansas

May 16, 1910

Appeal from Jackson Circuit Court; Charles Coffin, Judge; affirmed.

Judgment affirmed.

W. E Hemingway, E. B. Kinsworthy, James H. Stevenson and S.D Campbell, for appellant.

Appellee's testimony was incompetent, unreliable, and uncertain. 88 N.E 1063; 121 Ky. 526; 123 Am. St. R. 205; 90 Ky. 369; 29 Am. St. R. 378; 27 S.W. 999; 119 N.W. 200; Id. 1061. Instruction number one requested by appellee was erroneous. 30 Ark. 362; 51 Ark. 88; 91 Am. Dec. 309; 55 Ark. 393; 57 Ark. 203; 25 Ark. 490. It must appear to this court that error and misconduct in the argument of counsel was harmless, otherwise the case will be reversed. 58 Ark. 368; Id. 473; 61 Ark. 130; 63 Ark. 176; 69 Ark. 486; 65 Ark. 625; 70 Ark. 305; 72 Ark. 427. The verdict was the result of passion and prejudice, and is excessive. 57 Ark. 402; 194 Mo. 367; 178 Mo. 134; 113 Mo.App. 640; 27 S.W. 999; 101 Minn. 40; 100 Minn. 236; 82 Minn. 123.

Joseph W. Phillips, W. V. Tompkins and John W. & Joseph M. Stayton, for appellee.

Where injuries are permanent, mortality tables can be shown. 63 Ark. 491; 76 Ark. 233; 80 Ark. 551; 88 Ark. 229; 13 Cyc. 198. Carriers of passengers by steam are held to the highest degree of care. 34 Ark. 613; 40 Ark. 298; 51 Ark. 459; 57 Ark. 418; 59 Ark. 180; 60 Ark. 550. When an instruction is objected to, the vice must be pointed out. 87 Ark. 454. As to the meaning of the word "permanent," see 20 N.Y.S. 157; 65 Hun 94; 33 A. 399; 53 N.J.Eq. 370; 51 Am. St. 628; 2 N.J.Eq. 154; 26 S.E. 703; 120 N.C. 498; 9 App. Cas. (D. C.) 435; 69 Wis. 315; 187 Pa.St. 333; 15 L. R. A. 579. Appellate courts are little inclined to interfere on the ground of excessive damages where it appears the injury is permanent. 56 Ark. 594; 48 Ark. 396; 13 Cyc. 132, 133, 139, 129.

OPINION

McCULLOCH, C. J.

Plaintiff, Wm. F. Osborne, was a passenger on one of the passenger trains of the defendant, which collided with a freight train about a mile distant from the city of Little Rock on the first day of October, 1907, and he sues to recover damages on account of physical injuries alleged to have resulted from the collision. Negligence of defendant's servants is alleged to have caused the collision.

Plaintiff took passage on the train at Gurdon, Arkansas, where he resided; Little Rock being his destination. Just as the train reached the outskirts of this city, it ran into the caboose of a freight train. Plaintiff was sitting in the smoking car at the time, and was, by the force of the shock, thrown and pitched forward so that his head and shoulder hit against the back or arm of the seat. He describes his injury in the following language:

"I fell sideways, and struck my left shoulder right back there (indicating), as well as I have been able to ascertain from the soreness on that part. When that seat was thrown over, there was an exposed part that comes over, and my head hit on that, and left shoulder. Back part of head, back of my ear, struck this part of seat (indicating) and back of my neck; then got up feeling stunned and dazed; was confused; had pain in the back of my neck at two places a short distance apart, just a few seconds after I got to my seat. The pain was very acute and sharp, like there had been a sprain or wrenching of head and neck." He described his sensation immediately after receiving the injury as that of fullness in the chest, which continued, and pain in the shoulder, neck and head, and dizziness; couldn't hold his head up; "head seemed to go forward."

He walked up to the station, and took a car up town, where he got lunch, and then went to a hotel and retired for the night, but couldn't sleep. The next day he attended to some business in Little Rock, and took the train for Newport, Ark., where he was engaged in business. The next night he suffered considerable pain in his head and shoulder, and consulted a physician. He continued his attention to business, but in a few days took suddenly sick and called in physicians. He was under treatment of physicians almost continuously from the date of his injury up to the time of the trial, which occurred February 20, 1909. He remained at Newport under the treatment of physicians until October 13, 1907, when he returned to his home at Gurdon, and was there treated by his regular physician until December 20, 1907, when the latter died. He was also treated by several physicians in Little Rock at different times, and spent considerable time in a sanitorium, but has never recovered. He described his physical condition at the time of the trial as follows: "Before accident I was a pretty good mixer with my fellow man, enjoying a joke, and weighed about 220 pounds, and wasn't irritable; went down to about 200 pounds; now I am easily worried; can't stand any sharp noises; remember instances at Gurdon, my place of business being near the railroad, the blowing of whistles would affect me considerably; shooting of firecrackers makes me nervous and irritable; have very little to do with anybody on account of my affliction, and that is the first thing I want to talk about; I have a number of small children at home, and have to stay away from them on account of the noise; light affects my eyes, and I keep my room darkened; don't read anything but newspapers, and then only fifteen or twenty minutes at a time; don't sleep well; am nervous; something will get on my mind, and I can't shut it out, and the next morning usually feel tired; can't walk but a' short distance now; week or two after getting hurt I had a very acute pain that seemed to be where I believe the base of the brain is; couldn't move my head, and couldn't stand a jar; my walking was retarded perhaps soon afterwards, but I got worse three or four months after I was hurt; walk with difficulty, and have had to carry a cane about twelve months; my back hurts me, and walking increases it; have very severe scalding pain, burning pain, in my head, but the trouble seems to be a strain or tearing or some dislocation in the neck. This bothers me the most. At times my hands and feet are cold and clammy; hands are numb, and have lost my grip; can think for only a limited time without becoming tired; can't work any, and haven't worked much since fourteen months ago; reading increases trouble; have spots before my eyes; when I stand straight up and close my eyes, have a falling sensation; have to use a cane; my appetite is fair at times; have taken a great deal of tonic; have to have specially prepared food now, and for that reason eat at a restaurant; suffer some from dyspepsia and indigestion; can't stand excitement; have sweating of the hands. I have been in the hardware and furniture business at Gurdon for a number of years; very small business now, less than it was a year ago when I had a stock of about $ 3,500. I am closing the furniture out of my Gurdon store. It was hardware and furniture at the time of the accident, and I had two clerks then; have only one now; have not been able to conduct that business as it was at time of accident, but have kept it open; can not think connectedly. Since the accident have been able to give my business very little attention. I have spent about one-half my time in bed around home, and the greater part of the time I did spend around my business I spent on a cot in my store; got a cot in each of my stores on which I spent most of the time while I was in my places of business."

Three physicians, who treated plaintiff, were introduced as witnesses, and the testimony of each tended to substantiate his claim that he had sustained serious injury. Each stated his opinion concerning plaintiff's condition, and the extent of the injury which he claimed to have received. They diagnosed the trouble as traumatic neurasthenia, that is to say, weakness of the nerves caused or aggravated by a wound or physical shock or injury, and they gave opinions that the disease is generally, but not certainly, curable; that recovery is uncertain and always doubtful, even under favorable conditions. They said that plaintiff's condition had constantly grown worse since they knew of the case. Eminent medical text writers are quoted to the effect that in a majority of cases of traumatic neurasthenia or hysteria, the patient recovers, but that some do not recover, the disease persisting "until psychoses develop, such as melancholia, dementia, or occasionally progressive paresis." The physicians who examined plaintiff did not find any cuts, bruises or other external signs of injury on his body, but medical authorities seem to agree that the disease may be produced by the shock of a railway accident, without there being any external signs of the injury.

Defendant introduced considerable testimony, experts and others, rebutting the plaintiff's claim. It undertook to show that plaintiff had received no substantial injury at all, but was shamming or feigning injury--malingering, as the medical men term it. People living in the same town with plaintiff testified that he would appear to walk and otherwise deport himself as a perfectly well man when he thought he was unobserved, but that when he saw any one watching he would assume an attitude of suffering and physical disability. A physician who examined him at defendant's instance testified that he found nothing the matter with him. But the testimony was conflicting, and that introduced by plaintiff was sufficient to warrant a finding that he was severely injured, and that the injury resulted from the collision while he was a passenger on the train.

The trial jury returned a verdict in plaintiff's favor, and assessed his damages at the sum of $ 16,000, which is alleged to be...