Winters v. Hannibal & St. Joseph Railroad

Holmes, Judge, delivered the opinion of the court. The plaintiff sued for damages for an injury to his person, while riding as a passenger on the defendant’s railroad, occasioned by the negligence and unskilfulness of the officers and agents in running, managing and conducting the train of’ cars, and in negligently suffering a wrecked train of freight cars to remain upon the side of the railroad so near to the track that the passenger train in passing came in contact therewith, whereby the plaintiff was seriously bruised, and his arm broken and permanently disabled. The answer denied all negligence, and averred carelessness in the plaintiff in negligently thrusting his elbow out at the window and resting his head on his arm against the window, and sitting in a careless position. A verdict was rendered for the plaintiff for $2,500 damages, and the defendant brings this case up by appeal. The evidence fully sustained the allegations of the petition, and showed a case of gross negligence on the part of the officers conducting the train in attempting to run the train by the obstructions before they had been removed suf [475] ficiently out of the way to avoid a collision with the passenger cars. The defendant failed to show any negligence whatever on the.part of the plaintiff. He was simply resting his elbow on the window-sill, and his head upon his arm, sitting in a natural and not unusual position in his seat in the car, apparently unsuspecting of any danger. The car suddenly came in contract with a corner of the wrecked freight car, crashing against the window of the passenger car where the plaintiff was sitting and inflicting the injuries complained of. We do not think .the evidence presented a proper case for instructions on the subject of contributory negligence. The instructions which were given for the plaintiff appear to have been entirely correct, and more favorable for the defendant than he was entitled to expect. In the refusal of the instructions which were refused for the defendant we find no error ; the evidence did not warrant the giving of such instructions ; there was nothing in it which could properly be said to show any negligence that produced or contributed to produce the accident and injury. The negligence of the defendant’s agents was manifestly the sole cause of the accident. On the trial, the plaintiff’s counsel asked the witness how many children the plaintiff had ; he answered, “ six.” The defendant then objected to the admission of this testimony, and his objection was overruled and an exception taken. The plaintiff thereupon withdrew the question and answer. The defendant insists here that h.e was prejudiced by this evidence. Even if this testimony had beep inadmissible, it was withdrawn from the consideration of the jury ; and any impression it may have made upon their minds would be an insufficient ground for setting aside a verdict and judgment. But we are of the opinion that it was competent evidence in a case like this ; not that the fact itself would be a ground of damages, but that it was proper to show the condition and situation in life of the party injured, by way of enabling the jury to estimate the amount of damage done to him. His arm was crippled for life, and both he and his family were [476] dependent, in some measure at least, upon his labor for their support. It is not objected that the damages are excessive, and they would appear to have been moderate enough. We do not think there is any ground here for reversing the judgment. The defendant further insists upon his exception to the exclusion of the opinion of a witness of the defendant as to whether or not “ the plaintiff would likely have received the injury he did if his arm and elbow had been inside the car.” To this it is sufficient to say that the opinions of the witness were not admissible at all. The ground taken, that it was the opinion of an expert, is merely futile. The answers could have been nothing more than any man of common sense would know as well as the witness without any proof at all. We discover no ground whatever for disturbing the judgment. Judgment affirmed. The other judges concur.