118 Ark. 206 | Ark. | 1915
This is ian ¡action to recover damages on account of personal injuries received .by the plaintiff Biley while he was a passenger enroute from Fort Smith to Mansfield over the railroad owned by the St. Louis & San Francisco Bailroad Company, which was 'being operated by the defendants as receivers appointed by one of the courts of the United States. There was ¡a collision of the train on which plaintiff was a passenger with a freight train operated over the same line by another company, fowit: The Midland Valley Bailroad Oompany, at a point between Bonanza, Arkansas, and Jenson, Arkansas ; the particular point where the collision occurred being, however, in the State of Oklahoma. The injuries received by the plaintiff were according to the evidence adduced by him, very severe, and caused him to suffer great pain and permanently destroyed his earning capacity. The evidence tended to show that he sustained a severe injury to the spine, spoken of by one or more of the physicians who testified in the case as a lesion of the spinal cord, and that he was completely paralyzed from his hips downward. It is alleged in the complaint that the Midland Valley Railroad Company had been using the track by permission of the S't. Louis & San Francisco Railroad Company for a number of years, and that it was being so used at the time of the collision with the consent of the receivers. It is also 'alleged that the collision was caused by negligence of the employees in charge of defendant’s train in failing to keep a lookout, and negligence on the part of the Midland Valley Railroad Company in having its train to occupy the track at that time when the passenger train operated by the defendants was expected to pass along, and negligence of the said Midland Valley Railroad Company, in failing to direct those in charge of the freight train to wait at Jenson until the passenger train of the defendants had passed that point. There was a verdict in.favor of the plaintiff assessing damages in a very substantial amount, and the defendants have appealed from t'he judgment rendered thereon.
Numerous objections were made to the testimony of-physicians who testified concerning the extent of plaintiff’s injuries. There were no broken bones nor scars, no abrasions of the skin indicating objective symptoms, and the examination was to some extent sub jective. The physicians were ¡allowed to testify concerning exclamations and other verbal indications of pain, and inability on the part of the plaintiff to handle (himself normally, and they were permitted to give their 'opinions based upon those matters as well as the appearance of plaintiff as indicated in their examination. One of the physicians was allowed to state that at the time he examined the plaintiff, shortly after the injury, the latter was unable to draw up his leg except very slowly, and complained of pain whenever he moved. Other physicians, who examined plaintiff at the time of the trial and immediately before that time, testified about tests that -were made to determine whether or not his lower limbs -were paralyzed. As before stated, they -all gave their opinions based upon what may be termed the clinical ¡history- of the case thus obtained, and their own observations -and the result of the tests which they made. It is insisted that the court erred in allowing the witnesses to express their opinions from that predicate.
The rule on the ¡subject .is also stated by Mr. Jones, in his work on Evidence (2 ed.), section 349, as follows: “Whenever it becomes material to show a person’s condition of health, or motives, or state of mind, such person’s declarations may often be received in evidence for such purpose, provided the requisites already pointed out are complied with; and it appears that such statements are spontaneous and undesigned, and that they illustrate the facts which are the subject of inquiry. In some of the decisions, the utterances are limited to groans and . exclamations, and other involuntary exclamations of pain. But in others assertions and complaints as to present feeling are received more liberally. But on the grounds already stated, such declarations are confined to the present condition of the declarant. * * * Anything in the nature of narrative or statement is to be carefully excluded; and testimony is to be confined strictly to such complaints, exclamations and expressions as usually and naturally furnish evidence of a present existing pain or malady.”
These are the rules recognized by this court in the recent case of Prescott & Northwestern Ry. Co. v. Thomas, 114 Ark. 56, 167 S. W. 486; and also in the case of St. Louis, I. M. & S. Ry. Co. v. Williams, 108 Ark. 387. Those rules were, we think, adhered to in the trial of this case, and that -all the statements of the witnesses and the methods of their examination were competent.
The general rule on the subject, stated by Mr. Elliott, is as follows: ‘ ‘ The true rule would seem to be that when the injury and circumstances attending it are so unusual, and of such a nature that it could not well have happened without the company being negligent, or when it is caused by something connected with the equipment or operation of the road over which the company has entire control, a presumption of negligence on the part of the company usually arises from proof of such facts, in the absence of anything to the contrary, -and the burden is then cast upon the company to show that its negligence did not cause the injury.” 4 Elliott, Railroads, section 1644.
The assessment of damages in this case is for a large amount, and there was a sharp conflict as to the extent of the plaintiff’s injury, but the proof is sufficient to sustain the amount which the jury awarded, and the verdict is not alleged to be excessive; that is to say, there is no assignment in the motion for new trial that the verdict is excessive.
We find no prejudicial error in the record, and it follows that the judgment must be affirmed. It is so ordered.