Lamden v. St. Louis Southwestern Railway Co.

Kirby, J., (after stating the facts). Appellant, administrator, contends that the court erred in declaring Mabel Lawson an incompetent witness, and in directing a verdict in favor of the railway company. When Mabel- Lawson, twelve years of age, was 'Offered as a witness, she was first examined by the attorneys 'and then by the court, and again examined by the attorneys and the court, and, not appearing to understand the obligation of an oath, held incompetent to testify. (1) In civil cases infants under the age of ten years, and over that age, if incapable of understanding the obligation of an oath, are not competent witnesses. Kirby’s Digest, § 3095. In criminal cases, it appears from the authorities, that all persons at the age of fourteen years are presumed to have common discretion and understanding sufficient to testify until the contrary appears; but under that age, there is no presumption of capacity and inquiry will be made on that point. Crosby v. State, 93 Ark. 158. (2) Under the statute infants under ten years of age are conclusively presumed incompetent to testify in civil cases. Over that age, they are incompetent only if incapable of understanding the obligation of an oath, the presumption being that they are, unless and until the contrary .appears. The question of their inoompetency is in all cases necessarily left to the legal discretion of the trial court, and in the absence of manifest error or a clear abuse, its judicial discretion is not reviewable. After .carefully reviewing the examination of the excluded witness, which it is not necessary to set out here, we are of the opinion that a clear abuse of the trial court’s discretion in declaring her incompetent does not appear, and no error was committed in excluding the witness. (3) The negligence of the railway company is established, and a prima facie case made, of liability for damages for the injuries received, upon the showing that its train, upon which Mrs. Zella Crutchfield, and her two daughters, Mabel and Lucile, were passengers, was wrecked, and the coach in which they were riding overturned, without any explanation of the cause thereof. Railway v. Mitchell, 57 Ark. 418; Barringer v. St. Louis, I. M. & S. Ry. Co., 73 Ark. 548; Miles v. St. Louis, I. M. & S. Ry. Co., 90 Ark. 485. Its liability for damages to Mrs. Crutchfield for the injuries received in the wreck was 'conceded in the trial, and it plead, in bar of her right to recover, a settlement of her cause and a release of the company from all liability for damages, for the amount stipulated and paid in satisfaction. (4) Appellant attempted to avoid the effect of the release by showing it was obtained when her condition was such that she was not competent to contract, and because of misrepresentations, amounting to fraud, in its procurement. The burden of proof was upon him to show that the release was executed or procured under such circumstances as would relieve his deceased from the binding force of the instrument shown to have been executed by her. St. Louis, I. M. & S. Ry. Co. v. Morgan, 107 Ark. 202. Several witnesses testified to the appearance and condition of Mrs. Crutchfield after the wreck, .and shortly prior to the time and immediately after the execution of the release and this testimony alone would be sufficient to raise a question as to her capacity to contract at the time of its execution; but the testimony .shows that she took the draft for $50 given in payment for her release of all claims .against the company, and later deposited it with the Grant County Bank, with which she had been doing business for six or eight months, for collection. The cashier stated that he could not remember that any one was in the bank with her, that there was nothing abnormal about her condition when she presented the draft, and that .after reading it, and not having heard of the wreck, he asked, through curiosity, what it was; that she told him she had been in a wreck on the Cotton Belt Railway, and was told by him if she signed the draft she would have no case against the railroad for injuries at all, and advised her not to sign it. She said that she would sign it, .and did so, that although “she was frightened a right smart in the wreck, she didn’t get much hurt, and that the amount was sufficient for her injuries. ’ ’ The draft was deposited and collected by the bank through its Little Rock correspondent, and the next day afterward she drew out $30 of it, and drew a few other checks .against her account later on. (5) Even though the circumstances .attending the execution of the release, and the condition of the deceased at the time she signed it, raised a question as to her capacity to make a binding contract, she later, the undisputed testimony shows, under normal conditions, cashed the draft, given in payment for the release, and after the cashier of her bank had explained to her that if she did cash it, it would be a full settlement, and she would have no case whatever against the railroad company for injuries received, her action in so doing, with full knowledge of its effect, was an effectual ratification of the contract of release, .and discharged the railroad company from all liability for the injuries received by her, in accordance with its terms, and no error was committed in directing the verdict. St. Louis, I. M. & S. Ry. Co. v. Campbell, 85 Ark. 592; Francis v. St. Louis, I. M. & S. Ry. Co., 102 Ark. 619; K. C. Sou. Ry. Co. v. Armstrong, 115 Ark. 123. In the cases of the minors, the appellant, railway company, contends that the court erred in its instruction No. 4, given to the jury, relating to the measure of damages, and also that the verdicts are excessive. The instruction complained of reads: “The court instructs the jury that if you find for the plaintiffs, you will assess their damages at a sum, from the evidence, which will fairly compensate them for all pain and suffering, both mental and physical, endured by them, if you find that any such resulted from the injuries complained of; also for their impaired capacity to earn money, if any such resulted from such injury, from the date of plaintiff’s injury to the present time and for the future of her life.” It is insisted that this instruction is abstract, in permitting the consideration of impaired earning capacity, when there was no testimony introduced, tending to show it. (6) It is true there was no testimony introduced relative to the earning 'capacity of Mabel Lawson, but the testimony tends to show that her hearing in the left ear was permanently impaired, and one of her eyes weakened, because of the injury, and the jury might have inferred from that sufficient impairment of earning capacity to prevent the instruction being abstract in her case. In Lucile’s case a specific objection would doubtless have remedied it, and it was not prejudicial in any event, as is evident from the award of $250 damages. The girls were terribly frightened by the overturning of the coach, its rolling down the embankment and into the cold water waist deep to the smaller one. They . were handed or dragged through the windows feet foremost. The older one, Mabel, was shown to have received a serious bruise and injury to the left side of her head and ear from which the (testimony tended to show the hearing in 'that ear was permanently impaired, and the sight of the eye also weakened. The little girl, in addition to the minor scratches and bruises, had a cut upon the leg near the knee, which left a permanent scar. (7) Unquestionably they suffered greatly from the terrible fright, in addition to the pain from their physical injuries, and were entitled to compensation, as well on that account. St. Louis, I. M. & S. Ry. Co. v. Brown, 97 Ark. 505. Under these circumstances, we can not say that the verdict of the jury, allowing $500 damages for the injuries to the older girl, and $250 for the injuries to the younger, was excessive. The judgments in all three cases are affirmed.