89 Ark. 522 | Ark. | 1909
(after stating the facts.) 1. It is earnestly insisted by counsel for appellant that the first instruction asked by him, which was peremptory, should have been given. On this view of the case we must consider the testimony in its most favorable aspect to the appellee, for it is the province of the jury to pass upon the weight of the evidence. With that we have no concern, however greatly we may think it preponderates one way or the other. The test is, could reasonable and fair-minded men from all- the • facts and circumstances adduced in 'evidence have come to different conclusions as to whether or not negligence on the part of appellee might be inferred ? If so, the right to draw the inference is for the jury. On the other hand, if reasonable minds could have reached but one conclusion from the evidence, then the question of contributory negligence is one of law for the court.
Appellee, when he was injured, was not a trespasser upon the track. His work required him to be there. Fie testified that the engine was so constructed that it was necessary for him to stand in the middle of the track to rake out the clinkers. His work required haste, for the rapidity with which he hauled the cars to arid from the mines necessarily facilitated the operation of the mines. It is true that if -he had waited a few seconds he could have seen that the switch was not thrown. But he said that the switchman was standing there with his foot on the sill of the switch stand,' and that it was his duty to throw the switch. He further stated that, at the time of the injury, he was only five or six car lengths away from the switch stand, and could have heard a warning cried by the switchman if the switch had failed to operate. Under these circumstances, we do not think he was necessarily negligent because he did not wait .to- see if the switch was thrown and the cars took the left-hand track before he commenced to fix his fire.
As was said in the case of Rahman v. Minn. & N. W. Rd., 43 Minn. 42, “-the law imposed upon him the exercise of ordinary care and prudence, and in considering what this is, under a given state of facts, regard must be had for the danger to be apprehended, the reasonable probability of incurring it, as well as the' natural presumption that other persons will discharge their duty and act with due care.”. See also Henry v. Sioux City, etc., Ry. Co., 9 Am. St. Rep. 457. This is not a case where the physical facts were such that reasonable minds must come to the conclusion that appellee heedlessly took a position of danger. Certainly, he would have been in no danger if the switchman had thrown the switch as his duty required him to do, or, even if it failed to operate, had the switchman called out to him that fact, he could have escaped injury. Hence we think from all the facts and circumstances of the case as they appear from the record that the question of contributory negligence was one for the jury, and that the court was right in not directing a verdict for the appellant..
2. Instructions numbered 26 to 36, inclusive, pass out of the case.
The act of our Legislature approved March 8, 1907, which abolishes in this State the common-law rule that a servant assumes the risk of negligence of his fellow servant, has been sustained by the court in the case of Ozan Lumber Co. v. Biddie, 87 Ark. 587, decided since the trial of this case in the court below. Hence it is not necessary to notice the refusal to give these instructions which were asked by the appellant, and which were based upon the unconstitutionality of that act, except to say that the opinion in the case of the Ozan Lumber Co. v. Biddie is in accord with the modern text writers on the subject and as well the great majority of adjudicated cases.
3. The first assignment of error is based upon the action of the court in giving instruction No. 1 at the request of appellee. The instruction is set out in the statement of the case. It is claimed that the language of the instruction was susceptible of the construction that appellee had an absolute right to assume that his fellow servants would do their duty, and that it was therefore misleading and prejudicial.
It may be well here to notice the principles of law upon which this instruction is based. The common-law doctrine was that a servant assumed the negligence of his fellow servants. In discussing the question of contributory negligence under such conditions, Mr. Elliott says:
“An employee may, within limits, act upon the assumption that the employer’s duty to exercise ordinary care has been performed, but the fact that the employee may act upon such assumption does not relieve him from the duty of exercising ordinary care to avoid the injury. The presumption that the duties of the employer to the employee have been performed does not authorize the employee to carelessly or heedlessly venture into danger, nor does it relieve him from the duty of taking knowledge of and guarding against dangers plainly and fully open to observation.” 3 Elliott on Railroads, p. 768.
Again, the right of the servant to rely on the care of the master is thus stated: “Unless the danger is actually known to the servant, or is so obvious and imminent that an ordinarily prudent person would refuse to incur it, he had the right to rely upon the performance by the master or his authorized agents, other than his own fellow servants, of the duties imposed upon the master by law for the protection of his servants.” 26 Cyc. 1233-
The act of March 8, 1907, of the General Assembly of the State of Arkansas, (Acts of 1907, p. 162) abrogated the common-law rule that a servant assumes the risk of negligence of his fellow servant. It is very broad in its terms, and in effect provides that in cases of corporations the master shall be liable to the servant for injuries or death caused by the negligence of any other servant of the master in the same manner and to the same extent as if the negligence causing the injury or death was that of the employer. The rule as to the right of a servant to rely on the exercise of due care by his fellow servants under statutes similar to our fellow servant statute is aptly stated as follows:
“While, under statutes limiting the fellow servant doctrine, a servant has a right to rely upon the exercise of reasonable care by his fellow servants, this does not absolve him from caring for his own safety, as an ordinary prudent man would do under like circumstances, and he cannot recover for an injury received by reason of the negligence of a fellow servant, if he knew, or, by the exercise of ordinary care, might have known thereof.” 26 Cyc. 1236 and cases cited. An examination of the cases cited in the text shows that they support the rule as stated. Tested 'by these principles, we think the instruction was correct. We do not think it is open to the construction that it told the jury that the appellee had an absolute right to assume that his fellow servant would perform his duty, regardless of the fact of whether appellee was himself under all the circumstances of the case in the exercise of ordinary care and prudence. We think the effect of the instruction was to tell the jury that the law imposed upon appellee the exercise of ordinary care and prudence, and in determining that question that the jury might consider the fact that he relied upon his fellow servant performing his duty, at the same time having due regard himself for the danger to be apprehended and the reasonable probability of incurring it.
We do not wish to be understood as approving the instruction in the form in which it was given; but, if the language was thought to be ambiguous or of doubtful meaning, counsel for appellant should have specifically called the court’s attention to that fact and asked that the instruction be amended, instead of making a general objection to it. St. Louis, I. M. & S. Ry. Co. v. Hoshall, 82 Ark. 391, and many cases cited; St. Louis I. M. & S. Ry. Co. v. Hardie, 87 Ark. 475. A general objection is insufficient to point out an ambiguity in an instruction. Burnett v. State, 80 Ark. 225, and cases cited.
4. Counsel for appellant insists that the court erred in not giving instructions Nos. 8 and 13. As these instructions are open to the same objection, they may be considered together. They read as follows:
“8. If you find from the evidence that the fire in the engine which plaintiff was operating could have been attended to by plaintiff by remaining on the engine, 'but that, instead of remaining on the engine to attend to the fire, he got off the engine and stood behind it upon the track, and thereby was injured, you are instructed that plaintiff placed himself in a dangerous position needlessly, and was guilty of contributory negligence, and your verdict will be for defendant.
“13. If you find from the evidence that, in order to make the flying switch, such as was customary at defendant’s plant and as described in evidence, the time in which the person throwing the switch had to perform this duty was short, and the person throwing the switch had to act with promptness in order to have the switch .thrown in time for the cars to take the track to the shed, and that the plaintiff knew of this fact, but, notwitstanding such knowledge, he assumed that the switch would be turned in time for the cars to take the other track, and did not look or make other reasonable effort to ascertain that the switch had not been turned, but got upon the track in front of the moving cars, and was injured, you are instructed that he had no right to place himself in that position of danger in absolute reliance upon the switch'being turned in time to divert the cars, although when he passed the switch with his engine he may have seen some person at the switch who apparently expected to turn it; and if he acted in this manner he was guilty of' contributory negligence, and your verdict will be for the defendant.”
I.t will be noted that the instructions single out certain facts, and tell the jury that if they find these facts to exist appellee was guilty of contributory negligence. The effect of the instructions was to tell the jury if they found the facts stated in them to exist that appellee as a matter of law was guilty of contributory negligence.
“The existence of negligence should be passed upon by the jury as any other fact, and it is improper to instruct them that a certain fact or group of facts amounts to negligence per-se, unless such acts áre declared by law to be negligence per se, or are such as to induce an inference of negligence in all reasonable minds.” 29 Cyc. 645 and cases cited; Pauckner v. Wakem (Ill.), 14 L. R. A. (N. S.) 1118; Louisiana & T. Lumber Co. v. Brown, 109 S. W. (Tex.) 950.
The instructions as written are peremptory in their nature and took away from the jury the question of contributory negligence. Consequently, they invaded the province of the jury, which is never permissible. Rector v. Robins, 82 Ark. 424; Stephens v. Oppenheimer, 45 Ark. 492; Reed v. State, 54 Ark. 621; Blankenship v. State, 55 Ark. 244.
5. Instructions Nos. 7, 9, 10, 14, 22, asked by appellant and refused by the court, are open to precisely the same objection as are instructions Nos. 8 and .13 already discussed. What has been said in condemnation of them applies with equal force to the ones here under consideration. No useful purpose can be served by setting them out in the opinion, and we need onN say that the court was right in refusing them, for the reasons already given.
6. Counsel for appellant insists that the court erred in not giving instruction No. 15 asked by them. It reads as follows :
“15. You are instructed that the tracks on which cars are moving are dangerous, and that it is the duty of persons having occasion to go upon tracks to make use of their senses to ascertain that no moving trains are near which may do them harm; and it was the duty of plaintiff before getting upon the track to use such care as a prudent person under the circumstances would use to ascertain if any moving cars were on the track on which he was standing that might possibly cause his injury; and if you find that he failed to keep such a lookout ks a prudent person under the circumstances would keep on moving cars, and that ■by reason of such failure he was injured, your verdict will be for the defendant, even though you may find that some of defendant’s other employees were also guilty of negligence.”
We think this instruction was covered by the other instructions given in the case, particularly by instructions Nos. 3 and 6 given at the request of the appellant. A comparison o.f the instructions will show that the same matters embodied in this instruction are substantially embraced in the instructions given. A refusal to give an instruction that is substantially covered by another instruction given is not prejudicial. Fox v. Spears, 78 Ark. 71; Burrow v. Hot Springs, 85 Ark. 396.
In the case of Sadler v. Sadler, 16 Ark. 628, English, C. J., speaking for the court, said: ■ “A multiplication of instructions, announcing in effect the same legal principle, tends only to incumber the record, perhaps to confuse the jury, and is not to be encouraged.” To the same effect, see Haney v. Caldwell, 43 Ark. 184. This applies with striking appropriateness to cases like the present one where, although the testimony is voluminous, the issues to be submitted to the jury are not complicated, and 38 instructions were requested by the appellant. We may add in this connection that instructions Nos. 4, 18, 19 and 20 are substantially the same as other instructions given by this court, consequently no prejudice resulted to appellant from the refusal of the court to give them.
7. The counsel for appellant assigns as error the refusal of the court to give instruction No. 23-asked by them. It reads as follows:
“23. If you find from -the evidence that, after plaintiff had passed the switch with his engine and had brought it to a stop, before getting to the ground to fix the fire, he looked back and saw that the cars had not passed the switch, and if he had known that the switch was still turned for the track he was on, he would not have gotten on the track behind his engine where he was hurt, and that the switch and tracks were in his plain view, and he could have seen that the switch was not turned if he had looked at it or at the tracks at that point, but he failed to look at the switch or track at that point, and thereby did not exercise the reasonable care of an ordinary prudent person under the circumstances, your verdict will be for the defendant.”
We think this instruction is open to the objection that the effect of it was to take the question of contributory negligence from the jury. The word “thereby” refers to “but he failed to look at the switch or track at that point,” and thus makes appellee’s failure to look contributory negligence as a matter of law. In any event, the language used is doubtful or ambiguous, and it is not prejudicial for a trial judge to refuse an instruction which in his opinion has a tendency by its terms to take from the consideration of the jury a disputed question of fact, and thus mislead them as to the issues submitted to them for their decision.
8. Counsel for appellant assigns as error the action of the court in giving instruction No. 3 at the request of the appellee. There was error in giving this instruction. In the case of Little Rock, M. R. & T. Ry. Co. v. Leverett, 48 Ark. 333, the court said: “ Contributory negligence is a matter of defense. It is not presumed, but must be proved, and the burden of proving it rests on the defendant. This court has ever since adhered to that rule. Jones v. Malvern Lumber Co., 58 Ark. 125.
In the case of Hot Springs Street Railroad Co. v. Hildreth, 72 Ark. 572, the court said: “The burden of proving negligence is on the plaintiff, and of proving contributory negligence is on the defendant, unless it is .shown by the testimon)'- of the plaintiff.”
The act of March 8, 1907, commonly known as the fellow servants act, makes the master liable for the negligence of all his servants, but it does not take away his defense of contributory negligence, and the rule in regard to the burden of proof is not changed by the terms of the act. Hence we can see no reason for a change of the rule, and adhere to our former rulings in that respect.
9. We now come to the question, was the verdict excessive? This question has given us much concern. It is an extremely difficult and a somewhat delicate matter, in cases like this, to tell when the verdict is, or is not, excessive. It has been frequently said that it is difficult to find a measure of damages for pain, for the obvious reason that none would be an acceptable inducement to suffer it; but when it has occurred the compensation as such must be considered upon a reasonable basis of estimate. Under our system of jurisprudence, the amount of damages must be left largely to the reasonable discretion of the jury. Again, we may say, it has been repeatedly held that they may not give any amount they please. The appellee in this case was 22 years old at the time of the accident. He had been to school but little, but his testimony shows him to be a man of fair average intelligence. His left leg was injured, and had to be amputated about 5% inches below the hip. He suffered great pain, and lay in the hospital for one month after his leg was amputated. On his return home, he fell and hurt it again, so that he had to be carried back to the hospital and remained there for six weeks longer. His medical bill and hospital fees owere $386.22. He commenced working .for the appellant in August, 1906, and worked for it until the time of the accident. He commenced to run the engine on the 22d of January, 1907, and was earning $2.40 per day when he was hurt. Prior to his employment by appellant, he had worked for 15 nights in the railroad yards at Hot Springs running a switch engine. This was all the experience he had in running an engine for pay, prior to his employment by appellant. He said he had learned how to run an engine by riding on railroad locomotives with engineers who were his friends and who would teach him.
Dr. Gann, the surgeon who amputated his leg, said that nearly all stumps give a man more or less pain sometime during his life, but not necessarily in every case.
It will be seen that appellee had not followed the occupation of running an engine on a regular line of railroad, and it is a matter of common knowledge that he would have had to serve as a fireman 'before he could obtain such position. His means of earning a living in many other occupations is still open to him, and the amount he will recover in this case, properly invested, will yield an income that will materially assist him in providing for his future support. Everything considered, we think the verdict was excessive, and that the amount recovered should be reduced to $12,000.
If appellee will, within 15 days, remit the amount of damages down to $12,000, the judgment will stand affirmed; otherwise the judgment will be reversed, and the cause remanded for a new trial.
Mr. Justice Battle dissents from the construction we have placed upon instruction No. 1 given by the court at the request of appellee and upon instruction No. 23 asked by appellant and refused by the court.
