St. Louis Southwestern Railway Co. v. Overton

Wood, J., (after stating the facts). The appellant contends that the court erred in granting appellee’s prayer for instruction No. 1. An instruction in this form was approved.by this court in Ark. S. W. Rd. Co. v. Wingfield, 94 Ark. 75. In that case Mrs. "Wingfield sued for personal injuries alleged to have been received by her from a sudden jar caused by the coupling of a mixed freight and passenger train on which she had taken her seat as a passenger. Two seats were turned facing each other in the coach which she entered and she and her husband sat in one of them. While waiting in the yards the engine came back with such unusual force as to throw her forward against the seat in front and back against the seat in which she was sitting. The essential facts upon which the instruction in that case and the one in this case are based are similar. The court held in that case that the instruction was in accord with the law as announced by this count in St. Louis, I. M. & S. Ry. Co. v. Brabbzson, 87 Ark. 109, where we said: “It is well settled that, though a passenger riding on a freight train must be deemed to have assumed all the risks usually and reasonably incident to travel on such trains, yet, where the railroad company undertakes the carriage of passengers on freight trains, it owes such passengers the same high degree of care to protect them from injury as if they were on passenger trains.” And further: “But, as it is not practical to operate freight trains without occasional jars and jerks calculated to throw down careless and inexperienced passengers standing in the car, ‘the duty of the company is therefore modified by the necessary difference between freight and passenger trains and the manner in which they must be operated; and, while the general rule that the highest practicable degree of care must be exercised to protect passengers holds good, the nature of the train and necessary difference in its mode of operation must be considered; and. the company is bound to exercise only the highest degree of-care that is usually and practically exercised and consistent with the operation of a train of that nature.’ ” (1-2) The instruction as a whole was not misleading and was in conformity with the law as announced in the above eases. The first part of the instruction told the jury that the plaintiff, in taking passage upon a mixed train assumed the risk of the necessary and usual jolts and jars, and in the second paragraph the instruction informed the jury that the plaintiff assumed the risk of usual jolts and jars incident to the mode of conveyance. The necessary meaning of the court’s charge was that the company owed to its passengers the same high degree of care in handling their train to avoid injury as it should exercise in handling a regular passenger train. In other words, the degree of care which the company owes the passenger to avoid injuring him is the same whether he he riding on a mixed freight and passenger train or on a regular passenger train. St. Louis, I. M. & S. Ry. Co. v. Hartung, 95 Ark. 220. But in determining whether or not the company has exercised that high degree of care which it owes its passengers the jury must take into consideration the difference in the modes of conveyance and the different methods employed in the operation of the trains; that degree of care which the company owes its passengers on either train is the highest degree of care which a prudent and cautious person can exercise reasonably consistent with these modes of conveyance and their practical operation. Railway Co. v. Sweet, 60 Ark. 550. While the instruction is not happily worded, yet, when it is considered as a whole, and in connection with appellee’s prayer No. 2,* and also appellant’s prayer No. 2,† both of which were granted, the jury could not have been misled, and there was no prejudicial error in granting the prayer in the form as presented. (3) The difference in the particular modes of conveyance and in the manner of their practical operation are to be considered in determining whether or not the compány is negligent in any given case; that is, whether or not it has failed to exercise the 'degree of care which the law requires, towit, the highest degree of care which a prudent and cautious person would exercise under similar circumstances to avoid injury. There was no error in refusing appellant’s prayers for instructions numbered 3 and 4. These were predicated upon the idea that there was testimony tending to warrant a finding that the appellee was not a passenger and entitled to the degree of care due a passenger at the time of her injury. The court was correct in refusing to submit to the jury to find whether or not appellee was a passenger on appellant’s train at the time of her injury. The undisputed evidence showed that she went upon appellant’s train for the purpose of taking passage thereon. The coach was standing at or near the place where it usually stood for the reception of passengers at the timé appellee boarded the same. It was not her fault that she boarded it without the knowledge of appellant’s employees. It was their duty to see that passengers did not enter upon the train before the same was made up and ready for passengers to enter thereon. The brakemen and the conductor were charged with this duty, and the conductor stated that he did not notify Mrs. Overton not to get on. He also stated that the brakemen were making up the train and there was no one to look out for the passengers except himself. It thus appears that if the appellee was on the train before the proper time for her to take passage it was the fault of the appellant’s employees, and appellant could not complain that appellee was not a passenger under these circumstances. In Kruse v. St. Louis, I. M. & S. Ry. Co., 97 Ark. 137, we said: “Since there is a statute compelling railroads to carry passengers on local freight trains, when a person is permitted to enter a freight train as a passenger, there is no presumption arising that he is not a passenger. ’ ’ The conductor testified that “the caboose was set in there for passengers.” Under such circumstances the trainmen were bound to anticipate that passengers might go upon the coach. See St. Louis, I. M. & S. Ry. Co. v. Hartung, supra. The appellant contends that the court erred in telling the jury that if they found for the plaintiff they should take into consideration, in assessing her damages, the pain and anguish that she will necessarily endure in the future, if any. (4) There was testimony to warrant the jury in finding that there would be future pain and suffering to the appellee on account of the injury. The testimony on her behalf showed that at the time of the trial she was still suffering as the result of the injury. Her father, on this point, testified as follows: “Since the accident we have had a great deal of trouble with her. She is very nervous, especially at nights. She is always complaining of her head hurting her. She is not as bright and active as she was. Yery often she will wake up at night and come to our bed crying and screaming. She had one of those spells not over a week ago. She does not weigh as much now as before the injury.” Her mother testified as follows: “She is always complaining of suffering with her head. She is very nervous. At night she cries out in her sleep. She complains of being scared and wants to get in bed with us. She had always been a very strong, healthy child before the accident. She has not been well since, although she is some better now. She has these spells twice a week and sometimes oftener.” Doctor McKnight, 'appellee’s 'attending physician, testified that the injury caused her to be in the physical condition as detailed by her father and grandfather; that it is probable that tbe injury will affect her for several years. Doctor G-ilbrech, .after the condition of the child before and since the accident was set forth in a hypothetical question, stated: “It is possible that she would not recover for an indefinite period of time. ’ The above testimony was sufficient to justify the. court in submitting to the jury the issue as to whether or not appellee was entitled to damages for future pain and suffering. In St. Louis, I. M. & S. Ry. Co. v. Bird, 106 Ark. 177, we held “that where the evidence shows that the plaintiff will suffer 'considerable pain in the future the jury may consider future suffering in fixing the amount of damages.” Submitting to the jury the issue of future suffering, where there is testimony to warrant that issue, is an entirely different matter from submitting the issue of damages .as for a permanent injury where there is no testimony to show that the injury was permanent. See St. Louis, I. M. & S. Ry. Co. v. Bird, supra. Here the instruction only submitted to the jury to find as to whether or not there would be future pain and suffering as the result of the injury. The court did not err in submitting that issue. The verdict is not excessive. The testimony of the attending physician tended to show that the wound on appellee’s head was a serious one. He says: “I found her suffering with a lacerated and contused wound on the back of her head that extended through the tissue and down to the bone. The wound was bleeding profusely and her clothes were bloody. She did not seem to be able to stand alone. She appeared to be dazed as if she had some concussion of the brain.” The doctor was _ asked a hypothetical question in which was stated the mental and physical condition of the appellee prior to the injury and also the condition which the evidence tended to prove she had been in since the injury, and he was asked what, in his opinion, “was the cause of that trouble?” and answered that “it was the injury.” He also stated that “it was prohable that the injury would affect her for several years, but that he could not say whether it would or not.” Another physician was asked the following: “If a child is not nervous up to the time of five years of age and then receives an injury that causes concussion of the brain and then is very nervous, would you say that the injury is the cause of it?” and answered, “Well, with those premises, I would have to say that the injury was the cause of the trouble.” The physician who gave the above testimony was a witness on behalf of appellant. True, physicians who were called in by consent of the parties to examine the appellee during the progress of the trial, and who were advised by the attending physician of the condition in which he found the little girl at the time of the injury, testified that they did not find anything wrong with the child except a small scar on the right side of her head; that if there were any injurious results from the wound they could not tell it from their examination. They reached their conclusion from what they saw of the child. They had never treated the child. Another physician testified that he lived a short distance from appellee’s home; that he had seen her playing in the street a few days after the accident, and saw her frequently playing with other children, and that he could not tell that there was anything the matter with her. He could not tell that there was any difference in the way she acted before and after the accident. (5) The question for us is not what we would have found ,as the amount of damages to appellee had we been on the jury, but, giving the evidence its strongest probative force in favor of the appellee, was it sufficient to sustain the verdict. The jury might have found from the evidence that this child, who was á strong, bright and healthy child before the injury, had, by reason of the shock, suffered not only very serious bodily injury, but also an injury that had affected her mind as well. Her condition, as described by her parents and her grandfather, shows that she, up to the time of the trial, had endured great pain and suffering, and that such was likely to ' continue for some time in the future. Her physical health had been greatly impaired, and her mind was also perceptibly affected. It w.as the province of the jury to weigh this testimony, in connection with the other evidence. They have accepted it, and we can not say that the amount of the damages assessed by their verdict as the result of the injury is excessive. The judgment is affirmed. Footnotes [*] Appellee’s prayer for instruction No. 2: (2) You are instructed that passengers riding on local freight trains assume the risk of the ordinary customary jerks and jars resulting from their being coupled together, incident to their starting and stopping. [†] Appellant’s prayer for instruction No. 2: (2) You are instructed that a passenger while riding upon a freight train assumes the risks and hazards that' are incident to the operation of a freight train, yet, it is the general duty of the carrier to use due care for the safety of the passengers and a freight train carrying passengers can not he operated carelessly without subjecting the company to liability any more than a passenger train, and the operatives in charge of a freight train can not any more overlook the due care of their passengers than can the operatives of a passenger train, and, although plaintiff in this case was a passenger upon a freight train, yet, if you find from the evidence that defendant’s operatives in charge of said train failed to use due care for plaintiff’s safety or negligently or carelessly operated said train or moved the caboose connected therewith in which plaintiff was a passenger, and that by reason thereof she was injured, your verdict should he for the plaintiff.