Kansas City Southern Railway Co. v. Cobb

Wood, J., (after stating the facts). (1) Appellant contends that the court erred in permitting nonexpert witnesses to testify in effect that soon after the injury appellee “appeared to be suffering*.” That “she looked bad; looked like she was :siok; seemed to be in bad health. ’ ’ That “a short time before the injury she appeared to be in very good health. ’ ’ The testimony comes within the rule approved by this court in St. Louis, Iron Mountain & S. Ry. Co. v. Osborne, 95 Ark. 310-317, where we held that it was not error to allow nonexpert witnesses to state facts within their knowledge and observation as to the plaintiff’s physical condition, habits, etc., before and after the date of the alleged injury. Judge Elliott, in his treatise on Evidence, volume 1, section 679, states: “An ordinary witness may testify in a proper case as to the state of his health. Thus, he may testify that he has suffered pain, or state his physical condition generally. * * * So, such ,a witness may testify that another person seemed to be sick, suffering pain, nervous, or in good or bad health.” See .also sections 675, et seq. 676. Where one person is acquainted with another and they come in contact with each other frequently, it is not a matter of expert knowledge for one to tell whether the other appears to be sick or well. These are matters of common experience and observation. And a nonexpert witness, after stating the facts upon which his opinion is based, may even give his opinion in such matters. J ones on Evidence, vol. 2, § § 360, et seq. 366. The appellee herself had testified as 'to her condition of health (before the .alleged .occurrence of which she complains, iand the testimony of these witnesses but tended to corroborate her, 'and their testimony was competent. (2) Appellant complains that the court erred in admitting the evidence of Dr. W. A. Sanders. This witness was at appellee’s father’s house on the day she arrived there iand had prescribed for appellee. The only portion of his testimony to which appellant objects was as follows: “Q. What was her apparent condition? A. Why, she seemed to be in fiairly good health, all right; didn’t seem to be anything wrong; had only just taken cold. Of course, I could not say; I did not make an examination.” This testimony was competent and certainly was not in any manner prejudicial to appellant. If it could have had any effect at all on the jury, it was rather in appellant’s favor than otherwise. There can be no question about .a physician, an expert in the treatment of diseases, being permitted to testify .as to the apparent condition of the patient whom he treats. As we have seen, the law permits even /a nonexpert to testify as to whether such person appears to ibe sick or well, such matters not being peculiarly' of expert knowledge. (3) Appellant contends that there was no evidence to sustain'the verdict inasmuch ,as neither the appellee nor any of her witnesses testified to the effect that the failure on the part 'of the .agents of the appellant to build a fire in the depot resulted in the cold and other ailments of which appellant complains and about which she testified. The appellee testified, in effect, that while she was at Texarkana her menses -appeared; that when the train reached Hatton, her destination, it was not raining, but that by the time the train reached Vandervoort, the place where she debarked, “it was raining torrents,” and, as a consequence, she “was drenched.” The waiting room at Vandervoort was not heated, and in ten or fifteen minutes after she entered it she was shaking with a hard ague. Before this she had explained to the agent that she was cold and wanted a fire. He did not make the fire. She remained in this waiting room nearly an hour -and -took the south-bound train to Hatton and arrived there about daylight; the morning was very cold, and a cold wind blowing from the east. Her health before had been good for nearly a year. After .she .arrived at her father’s she became dangerously ill, and has since been afflicted -with ailments, which she specifically described. Under these circumstances, it was a question for the jury to determine as to whether or not appellee’s injuries and ailments resulted proximately from appellant’s failure to put appellee off at Hatton or from a failure upon its part to keep its waiting room for passengers at Yandervoort in a comfortable condition. If appellant negligently carried appellee by her station of Hatton, or negligently failed to keep its waiting room for passengers at Yandervoort comfortably heated, it would be liable in damages to the passenger for any injury sustained by reason of such failure. Kirby’s Digest, § $ 6704, 6707 and 6634. The above facts show that it was a question for the jury to determine whether the alleged failure in either or both of the above alleged particulars was the proximate cause of the injuries of which appellee complains. It was- unnecessary for the appellee or any witness in her behalf to testify specifically that the ailments which she ■described resulted from these alleged ■ negligent causes. That was a deduction which the jury was authorized to ■make from the testimony. See St. Louis, I. M. & S. Ry. Co. v. Hook, 83 Ark. 584. And in coming to such conclusion, the jury were not merely exploring realms of speculation, but their findings were only such reasonable and natural inferences .as intelligent minds might miake from the facts which appellee’s testimony tended to prove. (4) The court, at the instance of the appellant, instructed the jury, in effect, that .even though the plaintiff was carried beyond her station against her consent that she could not recover for any damages she may have suffered by reason of being wet while going from the coach to the waiting room. Appellant contends that 'tinder ithe evidence the only damage, if any, to appellee aside from the inconvenience land delay, was that caused by reason of her exposure to the rain and getting wet, and that under the- above instruction appellant was not liable. True, appellant succeeded in having the court grant the above prayer, but a verdict of the jury will not be set aside -where there is substantial evidence to support it, even though the verdict is not in accord -with an erroneous instruction. The above instruction was not the law. It is obvious from the amount of damages assessed that the jury found that the injuries of which appellee complains were caused by reason of her being wet. There was no evidence to warrant them in finding the sum of $1,000 merely for -the inconvenience and delay of being wrongfully carried by her station. Now, as we have seen, the jury were warranted in finding that the proximate cause of appellee’s getting wet was the fact that she was negligently carried by her station, and in order to reach her father’s in time she had to debark at the next station; that in doing so she was exposed to a drenching rain and became wet, resulting in the injuries of -which she- complains. The proof shows that it was not raining at Hatton at the time the train passed that station, and but for appellant’s' negligence in carrying her beyond her station she would'not have been exposed to the rain. Therefore, as we have shown, 'the jury might have found from the testimony that the proximate cause of appellee’s injuries was the negligent act of carrying her beyond her station, thereby exposing her to the rain which resulted proximately in the injuries for which she seeks damages. On the ground of alleged negligence in being carried by her station, the jury might have found, under the testimony, that appellee was entitled to -recover damages for the injuries she received by reason of being exposed to the wet and cold In St. Louis, I. M. & S. Ry. Co. v. Evans, 94 Ark. 324, where a passenger was wrongfully carried beyond her station, we approved the rule that the amount of her reeovery should (be such isum as the jury should find from the evidence would fairly compensate her for the exposure, inconvenience and physical pain and suffering occasioned (by reason of the negligent act. See, also, St. Louis S. W. Ry. Co. v. Knight, 81 Ark. 429; Texarkana & Ft. S. Ry. Co. v. Anderson, 67 Ark. 123. (5) On the issue as to whether .appellant was negligent in failing to keep its waiting room comfortably heated, the court instructed the jury, in effect, that it was the duty of the appellant to exercise ordinary care to keep its waiting room at Vandervoort comfortably warm, and that if appellant failed to exercise such care and appellee suffered injury as the direct result of such failure, they should find for her'on that issue. The court further instructed the jury that ordinary care was such care as a person of ordinary prudence would have exercised under all the circumstances existing at the time and place. The appellant asked the court to instruct the jury as follows: “The defendant was not required to keep a fire in the waiting room to meet the exigencies or needs brought about by a sudden storm. If the weather was cold and if that cold was due to -a sudden storm the defendant would not be required to build a fire so as to meet that sudden demand.” The court refused this prayer, and the appellant contends that the court erred in its rulings. In St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136, speaking of the duty of railroads in regard to keeping their waiting rooms comfortable, we said: “It was the duty of railroads independent of the statute of March 31, 1899, to provide reasonable accommodations for passengers at their stations. This duty requires the exercise of ordinary care to see that station houses are provided with reasonable appointments for the safety and essential comfort of passengers, or those intending to become passengers, while .they are waiting for trains.” The instruction of the court was in conformity with the law as thus .announced and fairly submitted the issue ias to the duty of appellant to keep its waiting rooms at all proper times comfortably heated as required by -section 6634 o-f Kirby’s Digest. The issue, under the evidence, was for the jury. The instruction given by the court properly declared -the law on the subject, and it was not error to refuse appellant’s prayer in regard to the exigencies of a sudden istor-m. There wias no testimony tending to prove that the rainstorm to which appellee was 'exposed on the occasion under review, early in the month of May, was in the nature of an- unprecedented exigency or one that could not have -been reasonably (anticipated during that season of the year. Therefore, the court did not err in refusing .to tell the jury that the appellant was not required to keep a fire in its waiting room to meet the exigency of a sudden rainstorm. The prayer for instruction ignored the duty of .appellant to do those -things which a person of .ordinary prudence would have done, considering the -season of the year, and the natural conditions of the weather that might .be reasonably anticipated during such season. In other words, the prayer rejected ignored the question of 'ordinary care. But the instruction which the court gave completely covered the subject. There is no prejudicial error in the record, and the judgment must therefore be affirmed.