Mobile & Ohio Railroad v. Carpenter

Reed, J., delivered the opinion of the court. Appellee was engaged in loading logs on a flat car standing on a switch track of appellant company at Rienzi. There was a loading apparatus beside the car. A freight train backed in on the track where the flat car was standing, for the purpose of coupling to a loaded car standing from fifteen to forty feet from the flat car. It struck the loaded car with some force, failed to make [720] the coupling, drove that car down the track, and struck the flat car, where appellee and those engaged- in loading it were, with such force as to move it some distance, and to cause the falling of the apparatus, some of which struck appellee on his head, shoulder, and hip, inflicting the injuries complained of in his suit. The jury on the trial rendered a verdict in favor of appellee for two thousand dollars. Appellant complains that the court erred in permitting certain witnesses to testify relative to appellee’s expression of present pain and suffering, for the reason that the expressions took place after the bringing of the suit, and some of them evidently after there had been a trial of the case in which the jury failed to agree. We believe that the law touching the testimony of witnesses on this subject is well settled by the decision in the case of Mississippi Central Railroad Company v. Turnage, 95 Miss. 854, 49 South. 840, 24 L. R. A. (N S.) 253, and that under that decision the trial court did not err in admitting the testimony objected to in this case. Judge Mayes, in delivering the opinion of the court in the Turn-age case, said: “Declartions of present pain and suffering, no matter to whom made, are admissible as original evidence in all inquiries where pain and suffering constitute the question involved. . . . The admissibility of these declarations and expressions is not dependent upon whether or not they constitute a part of the resgestae, but rests upon a wholly different principle, and should not be confounded or confused with that principle of law. Nor does time play any part in determining whether or not they are admissible, so long as the declarations and exclamations are confined to existent pain and suffering. Whether this character of evidence be classed as exceptions to hearsay, or as independent and original evidence, its admissibility is beyond question.” In the case of Travelers’ Insurance Co. v. Mosely, 8 Wall. 397, 19 L. Ed. 437, the court said, in discussing the [721] admissibility of such evidence: “Such declarations are regarded as verbal acts, and are as competent as any other testimony, when relevant to the issue. Their truth or falsity is an inquiry for the jury.” It was proper in this case for the testimony showing declarations and expressions of present pain and suffering by appellee to gm to the jury, who, considering all the surrounding circumstances and the time, could give it its true weight. Appellant assigns as error the admission of testimony showing the frame of mind of appellant’s trainmen while doing the switching which occasioned the injury, for the reason that there is no connection between their rough conduct and expressions and the alleged injury. "We note, however, the allegation in the declaration referring' to the conduct of the train men as folows: “Each.of said servants being in an angry and reckless state of mind.” And the further allegation therein: “The said engine being handled in such gross and wilful manner as-to show the highest degree of carelessness on their part,, and the reckless disregard of the results which might follow from its dangerous consequence.” As recklessness and carelessness are charged in this case, we think it was proper for the court to admit the testimony of such conduct and expressions to show the frame of mind of the men while doing this switching, so that the jury could judge whether the act resulted from such carelessness and recklessness. We do not approve of the language used by appellee’s attorney in the closing argument to the jury shown in the special bill of exceptions, but we do not believe that the trial court’s failure to sustain the exception to such argument amounts to a reversible error. We have carefully noted the objections made in the able and carefully prepared brief by counsel for appellant to certain instructions, but we cannot agree that the court erred in giving these instructions; nor do we think that the peremptory instruction asked by appellant [722] should have been given, for we find that there is clear conflict in the testimony, such as to require that the case be submitted to the jury; nor do we agree with the view of counsel for appellant that the appellee was a mere licensee. We do not find any reversible error in the'-trial of this cause. It was properly submitted to the jury, and we will not disturb their verdict. " Affirmed.