St. Louis Southwestern Railway Co. v. Jackson

• Decision Date: 03 January 1910
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. JACKSON
• Court: Arkansas Supreme Court

124 S.W. 241

93 Ark. 119

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. JACKSON

Supreme Court of Arkansas

January 3, 1910

Appeal from Woodruff Circuit Court; Hance N. Hutton, Judge affirmed.

Judgment affirmed.

S. H West and J. C. Hawthorne, for appellant.

1. The court erred in refusing to grant a continuance, because defendant was not prepared to meet the issues presented in the pleadings as to any other than the specific date named therein. Sec. 6140, Kirby's Dig.; 29 Ark. 372; 59 Id. 165; 67 Id. 142; 69 Id. 363; 70 Id. 232; 71 Id. 197; 75 Id 466; 78 Id. 536.

2. The opinion of witness Stair as to the shock or jar of the train was not properly admissible. 66 Ark. 494; 50 Mo.App. 666; 117 Mass. 137. Nor was his testimony as to statements made by plaintiff after he had stepped off the train competent, same not being a part of the res gestae. 48 Ark. 33; 61 Id. 52; 66 Id. 494.

3. It was error to permit plaintiff to testify as to the amount of his earnings, there being no allegation in the complaint to warrant such testimony, or a recovery for such loss. The verdict is therefore excessive.

4. The court should have given defendant's instruction No. 1.

Harry M. Woods, for appellee.

1. The motion for continuance was premature and without foundation, and was properly overruled. Continuances are matters in the discretion of the trial judge, and "each case must be judged according to its peculiar facts." The subsequent testimony established the date on which the injury occurred to be the same as that alleged in the complaint. 82 Ark. 393; 88 Id. 88; 121 S.W. 943.

2. The testimony of witness Stair as to the violence of the shock was competent. 5 Enc. Evidence, 714; 62 Ark. 259; 79 Id. 248. His testimony as to statements made by plaintiff on leaving the car, that he was "bad hurt," was also competent, as a part of the res gestae. 72 Ala. 112; 20 Ark. 225; 43 Ark. 99.

3. Plaintiff's testimony as to his loss of earnings was clearly admissible, and was responsive to the allegations of the complaint. The court properly instructed the jury on this question, and the verdict was not excessive.

4. There was not a scintilla of evidence upon which to base instruction No. 1 asked by defendant, and the court properly refused to give it.

OPINION

FRAUENTHAL, J.

This was an action instituted by Zolley Jackson, the plaintiff below, against the St. Louis Southwestern Railway Company to recover damages for personal injuries alleged to have been sustained while he was a passenger on one of defendant's trains. In August, 1908, the plaintiff paid his fare, and became a passenger on one of defendant's local freight trains from Fair Oaks to Brinkley. The evidence on behalf of the plaintiff tended to prove that when the train arrived at Brinkley and stopped at the place where passengers are accustomed to alight from such trains there were several passengers on the caboose with the plaintiff who prepared to leave the train. The plaintiff arose from his seat, and at that moment the train made a sudden backward movement with a violent impact of the cars, and with such force that it threw the plaintiff forward for a distance of twelve or fourteen feet and against the front end of the caboose. The sudden jerk threw him against the car with such force that it injured him severely in the back and wrenched his ankle. Immediately on leaving the train he stated that he was badly hurt, and on the same day had to be assisted in returning to his home. He had his ankle examined, and applications of liniment placed thereon at a drug store on the same day; and later secured the services of a physician. He was compelled to use crutches for six weeks or two months, and was unable to perform any labor for a number of months thereafter; and at the time of the trial, about seven months after the injury, he still suffered great pain in his back and ankle therefrom, and was unable to do a day's work. Upon the trial of the cause the jury returned a verdict in favor of the plaintiff for $ 750; and from the judgment rendered thereon the defendant prosecutes this appeal.

It is urged by the defendant that the lower court erred in refusing to grant a continuance of the trial of the case. Upon the trial of the case the plaintiff introduced as a witness J. L. Stair, who testified that he was a passenger upon the freight train at the time that the plaintiff was injured. He testified further that the injury occurred about the 17th day of August, 1908; that he was not positive as to the exact day of the month, but it was about August 17, and on Friday. It was alleged in the complaint that the injury occurred on August 17, 1908. When the witness testified that it was about the 17th of August, and not positively as to the exact day of the alleged injury, the defendant asked that the case be taken from the jury and continued because it was taken by surprise; that, relying on the allegation in the complaint as to the time of the injury, it had subpoenaed as witnesses its employees and Miss Julia Julien, who were on the freight train on August 17, and that it had subpoenaed no persons who were on said train on another date. The court overruled the motion to continue the case. We do not think that there was any error in this ruling of the court.

A motion for a continuance is ordinarily addressed to the sound discretion of the trial court, and that discretion will not be controlled by this court unless it has been manifestly abused. In the case of Watts v. Cohn, 40 Ark. 114, Mr. Justice SMITH, speaking for the court, said: "Questions as to the trial or continuance of causes rest so much in the sound discretion of the trial court that it must be a very capricious exercise of power or a very flagrant case of injustice that the appellate court will interpose to correct." Magruder v. Snapp, 9 Ark. 108; Hunter v. Gaines, 19 Ark. 92; Wilde v. Hart, 24 Ark. 599; Supreme Lodge K. of P. v. Robbins, 70 Ark. 364, 67 S.W. 758.

The only object that the defendant in the case at bar could have had in asking for a continuance was to procure witnesses who were on the train at the time of the injury, whether it was on the 17th day or some other day of August. At the trial of the case it had subpoenaed and introduced as a witness Miss Julia Julien, who testified that she was a passenger on defendant's freight train to Brinkley on a certain Friday in said month of August, and that the following Monday was the 17th day of August; and while she testified that she did not see any person injured on the train on that day when she was a passenger, she also testified that several passengers were on the train, and amongst them a colored man. The other witnesses of defendant who testified at the trial of the cause were a brakeman and conductor. The brakeman stated that he and the conductor were on the train on the same day in August on which Miss Julia Julien was a passenger. Now, the plaintiff, who is a colored man, stated that the day upon which he was injured was the only day that he was ever a passenger on defendant's freight train, and that the young lady, Miss Julia Julien, was a passenger on that train. The witness, J. L. Stair, testified that Miss Julia Julien was a passenger on the train at the time that the plaintiff was injured. So that the exact date of the injury was definitely fixed, and the defendant had at the trial as witnesses this young lady and its employees, who were on the train at the time, and had prepared its defense with the knowledge that this was the occasion upon which the plaintiff alleged that he was injured. There was, therefore, no mistake made by either party as to the exact date upon which it was claimed that the injury occurred. The defendant could not have been prejudiced by the refusal to grant a continuance. The exact day of the month upon which the alleged injury occurred was not material under these circumstances. Smith v. Weatherford, 92 Ark. 6, 121 S.W. 943.

In the course of his testimony the witness J. L. Stair stated that the impact of the cars upon the backing of the train made a "violent jar;" that he had been a passenger on defendant's freight trains a great number of times, and that he was familiar with the ordinary jerks and jars incident to travel on such trains, and that the "ordinary shocks were not as much" as the shock on this occasion. The defendant objected to this testimony of the witness upon the ground that it was the expression of the opinion of the witness. But we do not think that this objection is tenable. The witness was describing the force of the jar or shock, and in the use of the word "violent" he only expressed the idea of the degree of force with which the impact of...