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

• Decision Date: 18 January 1909
• Citation: 115 S.W. 923,89 Ark. 58
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BUCKNER
• Court: Arkansas Supreme Court

115 S.W. 923

89 Ark. 58

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

Supreme Court of Arkansas

January 18, 1909

Appeal from Chicot Circuit Court; Henry W. Wells, Judge; reversed.

Judgment reversed and cause remanded.

T. M Mehaffy and E. B. Kinsworthy, for appellant.

1. Appellee's testimony, detailing the causes of her mental worry, the fear of death, the fact that she had a sister to die of consumption, the fear that she herself was going into consumption, etc., was clearly incompetent and prejudicial. "To recover damages on account of the unintentional negligence of another, it must appear that the injury was the natural and probable consequence thereof, and that it ought to have been foreseen in the light of attending circumstances. 69 Ark. 405. Mental pain is a proper element of damages only when it arises necessarily and spontaneously out of or is a part of the physical suffering endured as a result of the injury. 6 Thompson on Negligence, 7320; 4 Elliott on Railroads, § 1816; 64 Ark. 538; 65 Ark. 177. Imaginative or sentimental anguish is not to be considered. 13 Cyc. 137 [2], 138 note 99; Id. 39, 41, and note 12; 80 Ill.App. 71; 9 Am. & Eng. R. Cas. [N.S.], 521; 14 F 398; 63 F. 396; 62 Ill. 320; 4 Am. & Eng. R. Cas. [N.S.] 328. The second instruction, which, among other things, permitted a recovery for all suffering both physical and mental, which resulted from such negligence was erroneous. 70 Ark. 143; 65 Ark. 183. The argument of appellee's attorney based on her incompetent testimony was inflammatory and prejudicial. It is sufficient to warrant a reversal, if the charge was erroneous, and may have misled the jury, and it does not affirmatively appear that the misconduct objected to was harmless. 70 Ark. 143-4; 63 F. 396; 59 F. 860.

2. Plaintiff's evidence as to suffering with gastritis, expenses, etc., was too remote and incompetent, and should not have gone to the jury. 6 Thompson on Negligence, § 7209; 4 Elliott on Railroads, § 1804; 1 L.R.A. 75; 68 L.R.A. 90, and note.

R. A. Buckner and Garland Streett, for appellee.

The word "all," as used in the second instruction, merely collects together as a whole "the expense and pain and suffering, both mental and physical, which the jury might find from the evidence was the result of such negligence, and could be stricken out from the instruction without altering its meaning. Under this instruction the jury's verdict should stand unless the court admitted improper evidence; and the testimony to which appellant objects was not incompetent when considered in connection with other testimony showing appellee's continuous sickness following immediately upon her exposure in November and her continuous suffering therefrom until the latter part of January following, when gastritis set in, which, at first acute, became afterwards organic, her condition gradually growing worse until finally in June following she went to a sanitarium for treatment. The evidence shows a "continuous succession of events so linked together as to make a natural whole" and an "unbroken connection" between the original negligence of appellant and the suffering from gastritis in May and June following. If the evidence establishes the negligence of appellant as the proximate cause of all of appellee's sickness, it is liable for all the pain and suffering, both mental and physical, resulting from such sickness. 41 Ga. 102; 33 Me. 376; 83 Ark. 584; 70 Ark. 136; 56 Ark. 390; 49 L.R.A. 17, 85; 57 Ark. 461; 14 F. 396; 1 L.R.A. 378-380; 24 L.R.A. 531; 41 S.W. 248.

OPINION

WOOD, J.

Appellee was a passenger on appellant's train from Lake Village to Dermott. She had to change cars at Halley's Station. She arrived there at one o'clock, P. M. and waited until 3:25 P. M. for the train to Dermott. She alleged that the negligence of appellant in failing to keep its waiting room at Halley's Station comfortably heated caused her great bodily pain and mental anguish, that upon her arrival at home she was prostrated with cold and fever caused by the negligence of appellant as above alleged, and that since that time she has been an invalid. She sued appellant, laying her damages at the sum of $ 5,000.

The appellant denied all the material allegations of the complaint.

The evidence on behalf of appellee tended to show that she was a passenger of appellant from Lake Village to Dermott; that, on arriving at "Halley's Station, she went into the depot. There was no fire there. She was suffering very much with the cold. It was a drizzling, windy, cold day. She had a chill while in the depot. The telegraph office adjoined the waiting room, there was a fire in it, but the agent would not permit passengers to avail themselves of it. The agent knew there was no fire in the waiting room. Appellee testified that after she got home she ached all over, that she had not recovered at the time of the trial from the effects of the cold and fever. She had fever and a cough the first month, and after that stomach trouble developed. After she had the cold and fever two months, gastritis set in, and her illness continued for months, necessitating her being carried to a sanitarium at Little Rock." Appellee goes into detail in explaining her long illness, the expenses thereof, and the suffering she endured by reason thereof. It is unnecessary to set out the testimony on this issue. It suffices to say, the evidence is sufficient here to support the verdict.

During the examination of appellee the following questions were asked and answers given:

"Q. You said that while you were suffering from the bronchitis, or whatever it was, your physical condition became so weakened, and you were worried. What occasioned that worry?

"A. It was fear of death; I was very fearful that I would die; I was badly frightened.

"Q. Did you have any particular reason for being frightened?

"A. Yes, sir; I haven't any desire to die; I have a desire to live; I knew I was in a dying condition; I had a sister to die in my house with consumption; I wouldn't have undergone the mental suffering for a million dollars.

"Q. Mrs. Buckner, you said yesterday that you suffered mentally from fear and thought you were going to die. What produced that fear, aside from the disease you were suffering from?

"A. I had a sister die from consumption. I knew all the symptoms. I nursed her. When my fever continued for weeks, I was afraid I was going into consumption. My mental worry I wouldn't have endured for a million dollars." Appellant properly saved its exceptions to the introduction of this evidence.

"It is a fundamental rule of law," says this court, through Judge RIDDICK in St. Louis, I. M. & S. Ry. Co. v. Bragg, 69 Ark. 402, 64 S.W. 226, "that to recover damages on account of an unintentional negligence of another it must appear that the injury was the natural and probable consequence thereof, and that it ought to have been foreseen in the light of attending circumstances."

It should have been foreseen by appellant that its failure to keep its waiting room for passengers properly heated on a cold damp day would naturally cause a delicate female passenger like appellee to have a cold, chill, fever and even bronchitis, and to suffer the mental anguish that usually and naturally accompanies such ailments. But no one could contemplate, or would be...