Little Rock & Hot Springs Western Railroad v. Cross

Wood, J., (after stating the facts.) 1. The facts sought to be established by the witness Page by the examinátion in chief were competent. Witnesses for appellant had testified that there was a negro boy on the wagon at the time appellee was hurt, and they gave the description of the negro as a “black-looking negro.” This was in contradiction of the testimony of appellee, which tended to show that the boy was in the car with him at the time he was hurt, and that the boy that was with him was a mulatto. The testimony of Page tended to corroborate the testimony of appellee. The fact that the boy was seen by him that evening after the accident with bruises upon his arms and limbs, and that he was a mulatto instead of a black-looking negro, tended to corroborate and strengthen the testimony of appellee that the boy was with him in the car at the time of the accident. This testimony tended, therefore, necessarily to disprove the testimony of appellant’s witnesses that the boy was upon the wagon at the time of the injury to appellee. There is no contention that the witnesses for appellee and appellant were testifying about a different boy. It is assumed that they were talking about the same boy, and there is no contention that there were two boys there besides appellee. Page was asked about “the boy that was working down there with plaintiff at the time of the accident,” and his answers show that this was the boy he was describing. The testimony was competent, relevant and material. But it was discovered on cross-examination that Page only found out that the boy was injured when he took him to the doctor, two or three days after the accident, and he only knew about how it was done from what the boy told him. This rendered that part of his testimony incompetent, and too remote. It was hearsay evidence, and prejudicial. But appellant, after thus bringing out these facts; did not ask the court to exclude the evidence. It elicited the evidence itself on cross-examination, and ib waived all objection to its incompet'ency by not moving the court to exclude it after such incompetency was discovered. 2. The court’s ruling was correct. Instructions numbered eight and fifteen assume, as matter of law, that the appellant had exercised ordinary care to prevent the injury to appellee if it notified the boy on the wagon that it was about to couple on to the car. This proposition assumes the existence of too many facts which should be left to the jury-to ascertain. And then,, after ascertaining the facts, it was still a question for the jury to determine whether appellant, under the facts proved, was negligent. For instance, these instructions assume that, if appellant’s servants saw a boy on the wagon, they had a right to presume that no one was in the car. Non sequitur. The facts were, as the proof showed, that there were two boys there. The evidence conflicts as to whether or not they were both in the car at the time of the accident. It was a question for the jury to determine whether the boys were in the car, or whether one was in the car and the other on the wagon at the time of the injury; and if there were two, what was their status to each other and the company; and it did not follow at all that, if one boy was on the wagon, there was no one in the car. And the company had no right to assume, as the instructions indicate, that if there was a boy on the wagon he would communicate the notice to the boy in the car. There was no proof that the boy in the car and the one on the wagon, if there was one also on the wagon, held such status to each other as to warrant the assumption that the boy in the car was responsible for the conduct of the boy on the wagon, and vice versa, or that the conduct of the boy on the wagon was imputable to the boy in the car. This instruction No. 15 assumes, We see nothing in the evidence to warrant the conclusion, as matter of law to be told the jury, that if there was a boy on the wagon it was his duty to warn the appellee, who was in the car, and that, if he failed to do so, he was guilty of negligence which should be imputed to appellee, and that the railway company had the right to assume that the boy on the wagon would notify the boy in the car, and to act accordingly. The whole tenor and legal effect of the instructions were to take from the jury the very question which it should determine, namely, as to whether or not the appellant, under all the facts which the jury might find from the evidence, was guilty of negligence.- The questions involved in these instructions were elaborately presented to the jury in general terms, in proper form, in other instructions. We find no error in the court’s charge. 3. The verdict was not excessive. Appellee in his regular calling, for which the accident unfitted him, had earned as much as $75 per month. At the time of the accident he was earning $1.50.per day. He was before the injury a vigorous young man. Since, most of the time, he has been helpless as a child. His injuries were serious, painful and probably permanent. The suffering- was intense. Considering all the elements for which damage should be allowed, we do not feel authorized to disturb the verdict as to the amount. Affirm.