St. Louis, Iron Mountain & Southern Railway Co. v. Leamons
| Decision Date | 29 April 1907 |
| Citation | 102 S.W. 363,82 Ark. 504 |
| Parties | ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. LEAMONS |
| Court | Arkansas Supreme Court |
Appeal from Union Circuit Court; Chas. W. Smith, Judge; affirmed.
Case affirmed.
Tom M Mehaffy, for appellant.
1. Appellant's first request for instruction should have been granted. While it is true that a carrier of passengers is held to a very high degree of care, the obligation to act with prudence rests also upon the passenger; and while he may rely upon the judgment of persons in charge of the train, he can not do so where as in this case the one relied on is not in charge of the train, and where it is plainly open to his observation that such reliance will expose him to danger that a prudent man will not incur. 41 Am. & Eng. R. Cas. 117; 28 N.E. 338.
2. It was error to instruct the jury that "carriers of passengers by steam are held to the highest degree of care and are responsible for the smallest negligence to such passengers." They are held to the highest degree of care only as to the operation of trains, qualified so as to apply to their practical operation. 3 L. R. A. 74.
3. The fifth instruction was wrong. It excludes consideration of appellee's negligence, and is erroneous as to the measure of damages. There is no evidence on which to base that part of the instruction having reference to mental pain and anguish, nor any evidence on which to base the instruction as to expenses in debts incurred in effecting a cure, nor as to decreased earning capacity. 1 Blashfield's Ins. to Juries, §§ 86, 91; 56 L. R. A. 338; 126 N.C. 712; 26 Ark. 513; 28 Ark. 198; 29 Ark. 151; 36 Ark. 641; 37 Ark 57; 41 Ark. 282; 54 Ark. 336; 58 Ark. 454. To justify an assessment of damages for future or permanent disability, it must appear that continued or permanent disability is reasonably certain. 49 S.W. 687; 61 Wis. 536; 92 Wis. 56; 147 U.S. 571.
W. M Van Hook, R. G. Harper and Thornton & Thornton, for appellee.
1. That appellee got off of the train, being urged thereto by the only representative appellant had in the coach at the time and that appellee was not negligent in so doing, are facts that are definitely settled by the special verdicts of the jury. 40 Ark. 327; Thompson on Trials, § 2652. Whether or not one is guilty of negligence in getting off of a moving train is essentially a question of fact. It is not negligence per se for a passenger to leave a moving train. 46 Ark. 437; 45 Ark. 322; 37 Ark. 526. In the absence of negligence on the part of appellee, the company is liable, notwithstanding he got off at the request of the negro porter. Ubi supra; Law Rep. 9 C. P. 126; 44 Ark. 327; 81 S.W. 1068; Whittaker's Smith on Neg. 322; Ray on Imp. Duties, 364.
2. Plaintiff's second instruction is sustained by repeated decisions of this court. 40 Ark. 298; 51 Ark. 459; 34 Ark. 613; 59 Ark. 180; 52 Ark. 524. But if it was too general appellant should have offered a more specific one. 69 Ark. 637; 56 Ark. 394; 65 Ark. 260; 75 Ark. 325; 74 Ark. 436; 99 S.W. 75. The highest degree of care which devolves on a railroad company to protect the persons of its passengers is not limited to the construction and equipment of the road, but includes also the services of the servants of the company. 50 S.W. 310; 28 N.E. 338.
3. The fifth instruction is familiar law. 37 Ark. 525; 49 Ark. 182; 46 Ark. 437; Beach, Con. Neg. § 53; Hutchinson on Car. § 645; Whittaker's Smith on Neg. 305-6, notes. There can be no exact measure of compensation for physical pain and mental anguish which is inseparable from it. Proof of permanent injury and present pain authorizes recovery for future pain. 99 N.W. 693. Mental pain may be inferred from physical suffering. 80 S.W. 856. See, also, 69 Ark. 637. An instruction, even though erroneous, would not prejudice appellant unless the verdict was excessive. 60 Ark. 558.
4. The verdict is right under the proof, and the jury and, trial judge, who saw the condition of plaintiff two years after the injury, being in a better position to estimate the extent of his injuries than the appellate court, the verdict ought not to be disturbed. 64 Ark. 237; 44 Ark. 331.
OPINION
This was an action for personal injury received in getting off a moving train, where the evidence tended to show that the passenger got off under the directions of the train porter, and in reliance on his superior knowledge of the safety of the act. The question of negligence and contributory negligence was properly submitted to the jury. It has frequently been held by this court that in cases like this the question is one to be determined by the jury under proper instructions. St. Louis, I. M. & S. Ry. v. Cantrell, 37 Ark. 519; Little Rock & Ft. Smith Ry. Co. v. Atkins, 46 Ark. 423; St. Louis, I. M. & S. Ry Co. v. Baker, 67 Ark. 531, 55 S.W. 941. There were special findings of the jury which settled the question of negligence and contributory negligence, and there was evidence sustaining those findings.
2. The second instruction, which is a general statement that "carriers of passengers by steam are held to the highest degree of care, and are responsible for the smallest negligence to such passengers," is criticised as being inapplicable to the facts. The court is unable to see where a general statement of this kind could be misleading to a jury, and it is not thought that under the instructions as a whole the jury could have taken this one as referring to the conduct of the porter of the train, and that he was held to the highest degree of care in advising appellant to jump, and that any slight negligence on his part would be sufficient upon which to base a cause of action, as the court in other instructions made clear the predicate for the cause of action.
3. Other criticisms of the instructions have been considered; but the instructions as a whole fairly present the law. Among the elements of recovery the jury are told that they might consider "any debts he may have incurred or paid out by attempting a cure, as well as any losses he may have sustained by reason of a loss of his earning capacity on account of said wound." The evidence showed that appellee was under the care of a doctor at Gurdon who dressed his face and sewed it up, and after he got home he was at some expense there; but the amount of his expenses at either place is not shown. A verdict was rendered in favor of plaintiff for $ 2,500 as damages. After the verdict, appellee remitted $ 100 on account of the failure of the proof to show the amount of these items. It was error to enumerate the items of expense as something recoverable unless there was evidence thereof. But the evidence here shows that there was necessarily some expense incurred in dressing appellee's face and sewing it up at Gurdon, and some expense at home. It seems reasonable that $ 100 should have covered such items. At least, the court can not say that the circuit court erred in allowing the judgment to stand after the $ 100 was deducted therefrom on the theory that it would correct the error in allowing the question to go to the jury without the evidence being explicit as to the amount of such expenses.
As to the last element, of loss sustained by reason of decrease in earning capacity on account of the wound, the evidence is meagre, yet it is sufficient for this element to be enumerated in the charge. The evidence shows a serious injury to appellee's face, that the bone was driven in against the ear, which caused partial deafness. He was asked, "What effect, if any, has that had upon your capacity to labor and perform your ordinary vocation?" He answered, "I suppose, a right smart; I have not been able to do work since like I did before." There is nothing to show what he did before nor his earnings, but, taking the evidence as a whole and his physical condition, there was enough for the jury to consider a decrease in his earning capacity from the time of the accident to the time of the verdict. The verdict is moderate in view of the seriousness of the injury and the great pain attending it for so long a period.
4. The instruction is also criticised as containing an element for mental pain and anguish. The evidence shows a very serious injury, great pain, and for many days the fear of death was upon appellee by reason of his injuries; and he was still suffering pain some two years thereafter. It is not clear from the record whether he was permanently disfigured in his face. Certainly, he was disfigured for a time. There was no error in including the element of mental pain in the charge.
On the whole cause, the court is unable to find any reversible error, and the case is affirmed.
The court instructed the jury in this case that, if they found for the plaintiff, they should assess his damages "at a sum that will in 'their' judgment be a just and fair compensation for the mental and physical pain and suffering at the time of the injury and afterwards including any mental anguish and mortification or any physical inconvenience he may suffer in the future by reason of the wounds received, as well as any debts he may have incurred or paid out by attempting a cure, as well as any losses he may have sustained by reason of a loss of his earning capacity on account of said wound." So much of the instruction as is in these words, "as well as any debts he may have incurred or paid out by attempting a cure, as well as any losses he may have sustained by reason of a loss of his earning capacity on account of said wound," should not have been given. There was no evidence upon which to base it. The only testimony on this point was that of the plaintiff. He testified that...
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