Fourche River Valley & Indian Territory Railway Co. v. Tippett

Wood, J., (after stating the facts). 1. The court did not err in refusing to direct a verdict in favor of appellant. While the testimony on behalf of appellant was directly in conflict with that of appellee, it was the province of the jury to accept and believe the testimony of appellee rather than the testimony of the witnesses on behalf of appellant, and the only question here is, was the evidence sufficient to sustain a verdict? We are of the opinion that the testimony of appellee, which the jury believed, was sufficient to show that the injury to appellee was caused by the negligence of appellant, as set forth in the complaint. 2. It was not error for the court to instruct the jury that if the negligence of appellant was established as alleged the verdict should be in favor of appellee unless “they should further find that such injury was the result of plaintiff’s own negligence.” For, according to the testimony adduced on behalf of appellant, the injury to appellee was caused wholly through his own negligence. In other “words, the testimony on behalf of appellant tended to show that the injury to appellee was caused by his own negligence, and not through any negligence whatever on the part of appellant. On the other hand, the testimony on behalf of appellee tended to show that his injury was caused solely through the negligence of appellant. The testimony does not warrant the conclusion that there was any concurring negligence on the part of appellant and appellee, whereby the injury to the latter resulted. This is not a case where the jury would be warranted in finding that the injury to appellee was the result of the combined or concurring negligence of both the appellant and appellee, but it is a case where the proximate and only cause of the injury was the separate and independent negligence of appellant, or else the separate and independent negligence of appellee. In such cases it is not error for the court to give an instruction in the form of the instructions above mentioned. The doctrine of contributory negligence, strictly speaking, has no place where there is not negligence on both sides. As was said by this court in St. Louis, I. M. & S. Ry. Co. v. Freeman, 36 Ark. 41, “it is invoked to neutralize a right on plaintiff’s part which would otherwise exist, and from its nature it makes a good defense against actual-negligence of defendant.” Contributory negligence “in its legal signification is such an act of omission on part of plaintiff amounting to the want of ordinary care as concurring or co-operating with a negligent act of the defendant is a proximate cause or occasion of the injury complained of.” International & G. N. Rd. Co. v. Schubert, 130 S. W. 709. This definition of contributory negligence has been often approved, and the doctrine frequently applied by this court. St. Louis, I. M. & S. Ry. Co. v. Rice, 51 Ark. 467; Johnson v. Stewart, 62 Ark. 164; St. Louis, I. M. & S. Ry. Co. v. Leathers, 62 Ark. 235; St. Louis, I. M. & S. Ry. Co. v. Jordan, 65 Ark. 429; St. Louis S. W. Rd. Co. v. Cochran, 77 Ark. 398; Southern Express Co. v. Hill, 84 Ark. 368; Chicago, R. I. & P. Ry. Co. v. Smith, 96 Ark. 524; Curtis v. St. Louis & S. F. Rd. Co., 96 Ark. 394; Warren Vehicle Co. v. Siggs, 91 Ark. 102. Of course, in cases where the evidence tends to show negligence on part of the defendant, and also negligence on part of the plaintiff, which "combined or concurring negligence produced the injury complained of, it will be error to tell the jury that they could not find a verdict in favor of the defendant unless the evidence shows that the injury was the result of plaintiff’s own negligence. For in such cases it is sufficient to warrant a verdict in favor of the defendant if the plaintiff’s negligence was not the sole cause of the injury, but only the concurring cause, or a cause which, combining with the negligence of the defendant, contributes to produce the injury complained of. See numerous authorities cited in brief of the learned counsel for appellant. But these authorities can have no application to the case at bar for the reasons above stated. The evidence shows that there was no combined or . concurring negligence on part of appellant and appellee, but, on the contrary, that the injury was the result solely of appellee’s own negligence, or else the result solely of the negligence of appellant. The instructions on behalf of appellant in which the court told the jury that they should find for the defendant if the negligence of the plaintiff “caused” or “contributed” to his injury are not in conflict with the above prayers on behalf of the appellee, for the word “contributed,” as used in these instructions on behalf of the appellant, is synonymous with the word “caused.” If not, the use of the word “contributed” is abstract, erroneously used, and therefore the instructions were more favorable to appellant than it had a right to ask, and it can not complain. The instructions given on behalf of appellee and those given on behalf of appellant concerning the “negligence” or “contributory negligence” of the appellee are not in conflict. It is manifest, when, these instructions are taken together, that the court submitted to the jury the alleged defense of appellant as to the negligence or contributory negligence of appellee as set up in its answer. The negligence of the plaintiff that “caused or contributed” to the injury as used in the prayers of the appellant is the same as the negligence of the plaintiff that “caused” the injury as used in the prayers of the appellee. The court intended that these expressions as used in the above prayers should be convertible terms. If the appellant at the time of the trial had in mind that the instructions using these expressions were in conflict, it ■was its duty to have called the attention of the court specifically to that fact. It can not be said that the prayers of plaintiff (appellee) were inherently erroneous. It is peculiarly a case, under the circumstances, that called for a specific objection to these prayers if appellant desired to get the benefit of the contention that it now makes that such prayers were in conflict with those given on the same subject and at its instance. A general objection to the prayers of appellee would not raise the point in the mind of the court, and to take advantage of it here for the first time would be allowing the appellant the benefit of a “masked battery.” The appellant got the benefit of its defense of negligence or contributory negligence, as it was set up in its answer, before the jury, and we can not say that the instructions were calculated, under the evidence, to confuse or misguide them. St. Louis, I. M. & S. Ry. Co. v. Rogers, 93 Ark. 564; Arkansas Midland Rd. Co. v. Rambo, 90 Ark. 108; St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255. Instruction No. 2, supra, did not authorize a recovery without proof of negligence. For, according to the testimony of appellee, the engineer could only move the train forward when the plaintiff gave the conductor or the engineer the signal that he was ready to go; and if therefore the engineer moved the train forward without such a signal, or if the conductor gave the engineer such a signal before the plaintiff indicated that he was ready., and the engineer moved the train, then such movement was done negligently, and it was not necessary for the instruction to say so in express terms, but it was sufficient to leave the jury to so find if they found such to be the fact from the evidence. The instruction requires them to find from the evidence a state of facts from which negligence necessarily results before they were authorized to return a verdict in favor of the appellee. There is much verbiage in the appellee’s prayer for instruction No. 3 by way of caution to the jury which was entirely unnecessary and in bad taste and form, making the instruction one that could not be approved as a precedent; but this verbiage did not render the instruction erroneous. Stripped of this verbiage, the instruction told the jury that if they found for the plaintiff they should assess his damages in such sum as they found from the evidence would be a fair compensation for his .present and future ipain and suffering, his loss of time and diminished earning capacity resulting from the injuries he had received. These were proper elements of damage fairly deducible from the complaint and the testimony on behalf of appellee; and, as the jury were told to base their findings in regard to these elements upon the evidence, the instruction was not erroneous. It is contended by the 'appellant that, inasmuch as appellee was a-minor when the injury occurred, and when the trial was had, the earnings belong to the father of appellee, and that therefore the instruction was erroneous in allowing the jury to consider the loss of earnings before appellee reached his majority as a proper element of damage to him. But the appellant did not make any specific objection on this account, and did not in any way raise the question in the court below, and it can not get the benefit of any such objection made here for the first time. 3. In this connection, while we are considering the question of damages, we will dispose of appellant’s assignment of error that the “verdict was excessive.” Appellee was about twenty years old at the time of the trial. He had an expectancy of 35 or 40 years. Before his injury he was making $2.25 per day, or from $63.00 to $65.00 per month. The bone in his leg by reason of the accident was crushed, so that it made that limb 2 or 2j/¿ inches shorter than the other. Appellee was thereby rendered a cripple for life. He could not pursue the occupation he was engaged in at the time of his injury, and he was not able to do carpentering, farming or work about a saw mill. He could not work at other occupations for which his mental and physical training fitted him. The pain he suffered at the time of the accident and while'he was being treated after-wards was most intense. He testified that the treatment nearly killed him, that the pain was so great that he could not sleep for three or four days and nights. His foot at the time was practically cut off, the bones were crushed and a part torn away. After his foot began healing, the surgeon found it necessary to open it three different times and take out pieces of bone. He testified that he still suffered at the time of the trial, and that in bad weather there was a dead ache in his foot, and in cold weather he had to stay in the house on account of the pain. It pained him so much that he could hardly stand it. It had been over two years from the time of the accident to the time of his testifying at the trial, and he was then still suffering from the injury. We are of the opinion that under these circumstances a verdict for .$10,000 is not excessive. .4. The court did not err in modifying appellant’s prayers for instructions Nos. 6 and 11, by inserting therein the words “knowingly permitted.” Appellee testified that he got his instructions from the conductor. He says that on the occasion of the accident Ed Ritter, conductor, when he went to the end of the car, said: “Get out and cut them off, Tip” (the conductor called him Tip). “He stood there a minute, and the conductor said: ‘Cut them off if you are going to; if you are going to cut them off, do it, or I will get somebody that will.’” Appellee says “he was talking to some one, and was slow, and that caused the conductor to tell him the second time to uncouple.” •The appellee further testified that he was in his proper place when the conductor directed him to uncouple. There was therefore evidence tending to prove that the conductor not only “knowingly permitted,” but that he expressly directed appellee to do the uncoupling. In view of this evidence, the modification made by the court to the instructions and the giving of the same as modified was not error. The court did not err in refusing prayer for instruction No. 19 to the effect that there was no testimony to warrant a finding that the engineer caused the train to move forward without a signal. It was a question for the jury under the evidence as to whether or not the engineer moved forward without a signal. The testimony on behalf, of the appellee tended to show that he had given no signal to the engineer or to the conductor to move forward, and it was in evidence that it was the duty of the engineer not to move the train until the rear brakeman had given a signal either to the conductor or the engineer to move the same forward. 5. The remarks of counsel for appellee in his closing argument to the jury of which appellant complained were not -statements of fact outside the record. The attorney, after reciting the facts shown by the testimony of Wright, simply told the jury that it was for them to say why the witness Wright quit after appellee was injured, and why the appellant took him back. His whole statement can not be construed as a statement of facts not in evidence, nor can it be considered an improper comment upon the facts in evidence showing the re- ■ lation that the appellant sustained to the witness Wright before and after the accident occurred. The attorney did not even venture an opinion himself, but, reciting the facts in evidence, declared that it was for the jury to say, or “guess,” as he expressed it, what inferences should be drawn from them. That was the purport of his remarks, as we construe them, and they were not improper. 6. We have examined the other assignments urged for reversing the judgment, and find no error in the rulings of the court prejudicial to appellant. It has had a fair trial, and the judgment must therefore be affirmed.