St. Louis Southwestern Railway Co. v. Everett

Wood, J. (after stating the facts.) Counsel for appellant contend that there was no evidence to support. the verdict and that the instruction given by the court was erroneous for the reason that the lookout statute has no application. They say that while it is true that the employees of appellant discovered the appellees approaching the house track, yet the undisputed evidence shows that these employees did not discover that the mules were frightened and beyond the control of the appellees until it was too late for the employees, using all the means at their command, to stop the engine; that, although the fireman had discovered the wagon approaching the house track and the crossing, he did not know that appellees were ignorant of the approaching engine and did not know that appellees would not stop before undertaking to cross the track; that appellees did in fact stop, and the' mules became frightened when it was too late for the employees to stop the train. These contentions of the learned counsel are not tenable. There is an irreconcilable conflict between the testimony on behalf of the appellees and that of appellant on the issues of fact. And, besides, appellant’s witnesses contradict each other, and the testimony of some of them is inconsistent and contradictory in itself. In this hopeless conflict of the evidence, whether or not appellant’s servants were keeping a lookout, and whether or not they discovered that appellees were in a perilous position, or in the exercise of ordinary care might have discovered them in time to have avoided the injury, were issues of fact which it was the peculiar province of the jury to determine. The evidence is fully set forth in the statement, and it shows that there was substantial testimony to warrant the finding in , favor of appellees on these issues. (1) The jury was justified in finding from the testimony of the witnesses for the appellees, and also from the testimony of appellant’s witness, the fireman, that, when the mules first began to run, the engine was about the switch stand, or close to the switch stand, which was between 195 and 210 feet from the place where appellant’s engine collided with the wagon. The undisputed evidence shows that the fireman on the engine, had he been keeping a lookout, could have seen the appellees after the team crossed the side or house track. It further shows that the engine was running at the rate of seven or eight miles an hour, and that it could have been stopped within a distance of sixty or seventy feet. So there was ample testimony to justify the conclusion that appellant’s servants either did not see the appellees when the mules took fright, or that if they did see them, they failed to exercise ordinary care to use the means within their power and control to avoid the injury. There was testimony to warrant a finding that the fireman was not in his place in the cab of the engine on the side from which appellees approached the crossing, and that he was therefore not keeping any lookout at all. True, the fireman testified that he was in his place and that he discovered appellees. His testimony is inconsistent and contradictory as to the exact place where he first discovered them. But it was for the jury to reconcile the conflicts in his own testimony and also between his testimony and the testimony of the other witnesses, and to find what were the exact facts as to whether or not the lookout was kept, and if kept, whether or not the appellees were discovered by the employees of appellant in a perilous position, and whether or not they were seen, or could have been seen by the exercise of ordinary care, in time to have prevented the injury. But it could serve no useful purpose to discuss further the conflicts in the evidence. The instruction given by the court was applicable to the facts presented, and correctly stated the law in conformity with many decisions of this court. Central Railway Co. of Ark. v. Lindley, 105 Ark. 294; St. L., I. M. & S. R. Co. v. Gibson, 107 Ark. 431; St. L. & S. F. Rd. Co. v. Champion, 108 Ark. 326; St. L. Sw. Ry. Co. v. Wilson, 119 Ark. 36. (2) Appellant’s counsel next contend that the verdicts were excessive. Giving the testimony in regard to the character and extent of the injuries its strongest probative force in favor of the appellees, as we must do, we cannot say that the verdicts assessing the damages for personal injuries were excessive. Appellee Everett received a serious and painful injury to his shoulder, from which he had not recovered at the time of the trial, and which the attending physician stated might be permanent. Likewise the appellee Moye had received a severe and painful injury in his head, which had caused him much suffering, and from which he was also suffering at the time of the trial. A period of nearly a year and a half had elapsed from the time of the injuries, during which time the appellees had not only been suffering continuous pain, but, on account of these injuries,’ they had been only able to do about half as much farm work as they had done before the injuries were received. Under these circumstances we cannot say that the amount of the verdicts evidenced any passion or prejudice on the part of the jury. The remittitur cured the excess in the amount of damages assessed for injury to the property. There is no reversible error in the record, and the judgments must be affirmed.