St. Louis Southwestern Railway Company v. Braswell
| Citation | 127 S.W.2d 637,198 Ark. 143 |
| Decision Date | 24 April 1939 |
| Docket Number | 4-5413 |
| Parties | ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. BRASWELL, ADMINISTRATOR |
| Court | Supreme Court of Arkansas |
Appeal from Miller Circuit Court; Dexter Bush, Judge; affirmed in part and reversed in part.
Judgment for $ 235 is affirmed. Judgment for conscious pain reversed and cause dismissed.
A. H Kiskaddon, C. S. Hadley and Gaughan, McClellan and Gaughan for appellant.
Willis B. Smith and Ben E. Carter, for appellee.
OPINION
The appeal presents three questions. First, was there support for the jury's finding that appellants' engineer could and should have discovered the perilous position of appellee's intestate in time to have averted injury if the statutory lookout had been kept? Second, did the injured man experience conscious suffering? Third, is the judgment for funeral expenses supported by law?
Appellee, administrator of the estate of F. J. Braswell, alleged the negligent killing of the intestate (his father), who at the time of the accident was 79 years of age. The only eye-witness was John Kennedy. He testified that he was engineer of appellants' passenger train out of Texarkana; that the automatic bell was in operation and the whistle was being blown. In rounding a curve "to the right" witness observed a man lying with his head on the right rail, his feet and body extending at right angle to the track. The prostrate man was first seen when the train was about 200 feet distant, a small embankment and a few bushes having prevented an earlier or a clearer view. Steam was shut off, the alarm was sounded, and brakes were put into emergency. Rate of speed was 40 or 45 miles an hour. The prone man's back was to the engine. When a stop was made the rear end of the train was about a car length past the body.
The engineer walked back to where the injured man was lying near the steps of the Cotton Belt station. Kennedy testified that "From the time the train struck Mr. Braswell until I came back to where his body was lying was about three or four minutes."
Again testifying, Kennedy said
A photograph taken by appellant's claim agent was introduced in evidence. Certain points are identified from which distances may be estimated. We think this photograph, and testimony of the witness Orr, presented a question for the jury: that is, evidence was substantial to show that if a proper lookout had been kept Braswell's perilous position would have been discovered in time to have prevented the accident. The stop was made within approximately 700 feet, and there is evidence that the prone body could have been seen at a distance of 900 feet, in spite of the curve and obstructions.
We agree with appellee that the engineer's statement that the injured man was unconscious, must be considered in the light of the reasons given for the belief. On cross-examination this witness stated it was about three or four minutes after the accident until he got back to the body. Considering the nature of the injury, the position of the body when struck, and the fact that the injured man did not speak, although he was breathing hard, the engineer concluded that the condition was one of unconsciousness.
Appellee alleged conscious pain and suffering, and therefore had the burden of proving the fact, either by direct or circumstantial evidence. The question is, Was that requirement met? We do not think it was.
Appellee directs attention to a number of our decisions and insists that the principles therein announced are applicable here.
In Missouri Pacific Railroad Company et al. v. Maxwell [1] it was said that There is only a general statement in the opinion as to the purport of the evidence, without setting out in any particular what such evidence was, touching upon the issue of pain and suffering.
Recovery for pain and suffering was allowed in St. Louis Southwestern Railway Company v. Rogers; [2] in Ashcraft v. Jerome Hardwood Lumber Company; [3] in St. Louis-San Francisco Railroad Company v. Pearson; [4] in Arkansas Light & Power Company v. Adcock; [5] in Central Coal & Coke Co. v. Burns, [6] and in St. Louis, I. M. & S. Railway Company v. Robertson. [7] These cases are cited by appellee in support of his contention that the evidence was sufficient to warrant the jury in finding there was conscious suffering. In each of the cited cases, however, there was some expression or action showing coordination of mind and body.
In the Rogers Case, an injured brakeman turned over on his right side and exclaimed, "0, Lord." This occurred some minutes after the accident.
In the Ashcraft Case the workman lived thirty minutes. He "gasped and groaned, and blood came out of his mouth."
In the Pearson Case the injured fireman lived about ten minutes. He was
In the Adcock Case a minor was injured by an electrically charged wire. After receiving the shock he exclaimed "O, me," as many as two times. After reaching the ground the young man tried to get up on his hands and knees, "then moved his arms and legs."
In the Burns Case a mine worker, after receiving an injury, was heard to cry out, and his associates found him in contact with live wires. The opinion points out that it was fairly inferable he lived fifteen minutes. "After being pulled away from the wires he moved on his all fours and tried to talk and vomit, but could not do either."
In the Robertson Case the railway conductor shoved Clint Ruff (an alleged passenger) in such manner that Ruff fell from a freight car into Walnut Lake and was drowned. A physician testified he knew Ruff; was at Walnut Lake the night he was killed; that Ruff died from drowning; that a man falling into the water would possibly be conscious two or three minutes.
In the instant case, H. C. Hay of the East Funeral Home, testified that there were no marks on the decedent's body--
Books on evidence, and the cases, have much to say about "speculation," and "conjecture." It is urged by those who adhere to the theory that the reasonableness of testimony, the probability of its truthfulness, the conclusions to be drawn from it, the inferences attaching to physical conditions and to the attending circumstances, are matters for sole consideration of the finders of facts, and that a verdict based upon any...
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