Chipman ex rel. Chipman v. Union Pacific Railroad

Merritt, C.’ J.: This action was brought to recover damages for injuries sustained by plaintiff by reason of being run over by the train of the defendant companies, and having her foot .severed at. the ankle. The testimony showed that the plaintiff, at the time of the injury complained of, was .about three years old; that on the day of the accident she went on the highway. In playing about the track, or .attempting to cross it, the plaintiff’s foot caught between the rail and a plank forming a part of the road crossing. The train was a passenger train running on regular [70] schedule time. The engineer and fireman, when within: half a mile of the place of the accident, could plainly see objects on the track. The train was slowed up, and run. under control for a short distance, and then started at-increased speed, and ran over the plaintiff, severing her foot at the ankle. The evidence shows that the appellants, were grossly negligent. They scarcely make an attempt to excuse their conduct. The jury rendered a verdict for $10,500 in favor of plaintiff, and judgment was duly-recorded for that sum. Defendants moved for a new trial,, which was overruled, and defendants appeal. There are three questions relied on by appellants as-grounds for reversal of the lower court: First, that the-court erred in allowing the witness Kelly to testify as to-the speed of the train at the place of the injury to the-respondent; second, in refusing to admit in evidence a letter written by the witness John I. Chipman to appellants;. third, that the amount of the damages awarded by the jury is excessive. As to the first point, appellants admit that one need not be an expert to testify to the speed of a train of cars. Then any person may testify to such fact. No qualification is necessary. The experience of every person who is. competent as a witness is deemed sufficient to admit in evidence such person’s opinion on such a matter. Of' course, the weight to be given to such an opinion depends-on the opportunity the witness has had to form a correct-estimate; hence, Kelly’s testimony was competent. But. admitting, for the sake of argument, that it was error, it did not prejudice defendants, for the reason that there-was no question made as to Mrs. Kelly’s testimony on the speed of the train, and she places it higher than Mr. Kelly, and there is nothing in the evidence to contradict her. Appellants cannot have been harmed by Mr. Kelly’s, testimony. [71] As to the second point, it is contended that the court erred in refusing to allow appellants to produce in evidence' a letter written by John I. Chipman to appellants. John. I. Chipman is not a party to this action, in any sense, except as guardian ad litem. He could not in any manner-affect the rights of the plaintiff. What he may have said, or done or written could be of no concern in this case,, except to affect the credit to be given to his evidence. Coming now to the third assignment of appellants, that the verdict is excessive, one might cite cases where verdicts largely in excess of $10,500 have been sustained by the courts for injuries less than in this case. An examination of the record is all that is necessary to show that appellants were grossly negligent. There is scarcely an attempt, to excuse their conduct. They attempt to réason out the-earning capacity of the plaintiff, in her crippled condition,, after- her majority, and thus demonstrate that the verdict, is excessive. The amount of injury sustained by an infant, cannot be reckoned or calculated by any rule of arithmetic, any more than her body can be made whole by dollars and cents. If the plaintiff was a male, the verdict would not be excessive, and the loss of a limb to a female is. infinitely greater. We find no error in the record, and the judgment is affirmed. BaRTCH, J., concurs.