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

• Decision Date: 22 July 1907
• Citation: 104 S.W. 217,83 Ark. 584
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. HOOK
• Court: Arkansas Supreme Court

104 S.W. 217

83 Ark. 584

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

Supreme Court of Arkansas

July 22, 1907

Appeal from Franklin Circuit Court; Jeptha H. Evans, Judge affirmed.

Walter Hook, a minor, by his next friend, sued the St. Louis, Iron Mountain & Southern Railway Company, alleging that on the 27th of December, 1905, he entered defendant's depot at Cabin Creek, Arkansas, for the purpose of taking a passenger train from Cabin Creek to Coal Hill, Arkansas; that he was compelled to remain in said depot for about two hours; that defendant's waiting room was cold, damp and unsanitary and that defendant contracted a severe cold, which a few hours later developed into pneumonia. Damages in the sum of $ 1,000 were asked.

There was evidence which tended to prove the allegations of the complaint.

Dr Cowan, a medical expert, was asked the following hypothetical question:

"Suppose you take a child of this age, this size, on a cold, damp, drizzly, rainy day, a severe gale of wind blowing from the northwest, and you clothe him with leggings, good, warm, woolen clothes, under and upper, and take him 300 yards to a place where there was no fire in the stove, no preparations for a fire in a room ten by seven or ten by fifteen, where the room was full of dust and dirt, and ambeer spit on the floor, and you should be called in to see him, where would you trace this disease to? To what condition of affairs would you trace it?" To this he answered: "Well, if called in to see that child within 24 or 36 hours after it had been in that room I would trace pneumonia to exposure in a room of that kind."

The court instructed the jury as follows: "6. If you find for the plaintiff, you will assess the amount of recovery at such a sum of money as in your judgment, from the evidence, will compensate him for the pain and suffering, mental and physical, if any, and the diminution, if any, of his physical health and vigor occasioned by the alleged wrong sued for, if you find such wrong to have existed and to have proximately caused the injury sued for. If you find for the defendant, you will simply say so in your verdict."

A verdict for $ 500 was rendered in plaintiff's favor. Defendant has appealed.

Judgment affirmed.

Oscar L. Miles and Lovick P. Miles, for appellant.

1. Review the testimony and contend that the evidence is not legally sufficient under the rule in Catlett v. Railroad Company, 57 Ark. 461, 468, nor to show that the child's illness was the direct consequence of the exposure at the depot and the conditions existing there. 94 U.S. 475; 76 Ark. 430. Proximate cause and the legal sufficiency of evidence to support an allegation of proximate cause are questions of law to be decided by the court. 33 Ark. 350; 55 Ark. 510; 56 Ark. 279; 58 Ark. 157; 69 Ark. 402; 76 Ark. 434.

If the plaintiff's evidence tends equally to sustain either of two conclusions as to the cause of an effect, one of which conclusions he must establish by a preponderance of evidence in order to sustain a verdict in his favor, then he will be held to have failed to prove his cause of action. 99 Mass. 605; 57 Ark. 383.

2. It was error to permit a hypothetical question to the physician which embraced only a statement as to the weather, the manner in which the child was clothed, the distance walked in going to the depot, and the conditions existing in the depot, and omitted the facts relative to his recent exposure to pneumonia, that he was delicate, habitually kept indoors, that he was walked about by his father in the mist and snow during the wait at the depot, and other facts that might have had a bearing on the cause of illness.

3. The sixth instruction was erroneous in directing the jury, if they found for appellee, to compensate him for "the diminution, if any, of his physical health and vigor," etc. There was no evidence on which to base that part of the instruction. 16 Ark. 628; 26 Ark. 531; 42 Ark. 57; 54 Ark. 336.

Sam R. Chew, for appellee.

1. It is a statutory duty, aside from the common law duty, resting upon railroads in this State to keep their waiting rooms for passenger accommodation, at all proper times comfortably heated, and to maintain them in a clean and sanitary condition. Kirby's Digest, §§ 66, 34. The proof shows that on the day complained of appellant was in open and flagrant violation of this duty.

2. Principles announced in Railway v. Wilson, 70 Ark. 136, control in this case, and the court's instructions are in accord therewith.

3. The doctrine of imputed negligence does not apply. "A child of tender years can not be guilty of negligence, nor can the contributory negligence of the parent be imputed to it, so as to prevent a recovery in a suit brought in an effort to recover damages for injuries caused by the act of another." 72 Ark. 400; Id. 1; 68 Ark. 1.

4. This court holds to the doctrine that an hypothetical question need not embrace all the facts which the testimony tends to prove. 77 Ark. 426.

5. The sixth instruction was based upon proof of appellee's health and vigor having been impaired. Moreover, the verdict shows that future impairment was not considered. The verdict was, therefore, not excessive. 78 Ark. 100.

HILL, C. J. MCCULLOCH, J., dissenting.

OPINION

HILL, C. J.

The Reporter will state the substance of the evidence and the instructions, so far as the same are material to the issues discussed. It will be seen therefrom that this is an action to recover damages of the railroad for maintaining a waiting room in such condition that the appellee, a child, while waiting for a belated train, contracted pneumonia.

1. The first question is as to the sufficiency of the evidence. Testing the same under the rule which has so often been applied, and which is aptly expressed in Catlett v. Railway Company, 57 Ark. 461, as follows: "After drawing all the inferences most favorable to the verdict that the evidence will reasonably warrant, is it sufficient in law to sustain the verdict?"

The evidence shows that the child was necessarily kept in the station for some time on a cold winter night. A northwest wind was blowing, and it was "spitting snow." Pneumonia was prevalent in the vicinity. The station was small, dirty, ill-smelling and unheated. The child got very cold, and his father several times took him out of the room and walked him around the station under cover of the roof in order to keep him warm. When he got on the heated coach of the train, he was shivering, and at once fell asleep. The next night he woke up with a chill; a physician was called in, and he was found to be in high fever, and pneumonia had developed.

The child was warmly clad, and was only taken three hundred yards from the house to the station, and there waited some time for the train.

One of the witnesses called by appellant, Dr. Cowan, says that sometimes physicians can trace the direct cause of pneumonia but can not always do so. He further stated, when an hypothetical question was put to him which assumed as true the facts above outlined, and other facts proved by appellee, that if he was called to see a child within 24 or 36 hours after it had been in such a room...