Dickinson, Receiver Chicago, R. I. & Pac. Ry. Co. v. Brummett, 133 Ark. 30

133 Ark. 30 | Ark. | 1918

WOOD, J.,

(after stating the facts). Appellant contends that the judgment should be reversed upon two grounds:

First. That the evidence is insufficient to sustain the verdict. Learned counsel for appellant urge that the testimony demonstrates to a mathematical certainty that appellee could not have been injured in the manner and to the extent claimed by him, for the reason, they say, “that Hall was the only credible witness as to the weight of the door and he testified that it weighed about three hundred pounds. ’ ’ This, they say, would make the weight on the man’s shoulder only sixty pounds. They argue, therefore, that the verdict is contrary to the physical facts. They arrive at this conclusion upon the calculation “that if one end of the bar, thirty inches long, is supported by a mar’s shoulder and the other end is resting upon a fixed object and a weight of 300 pounds is placed upon the bar with the center of the weight six inches from the end which is resting upon the fixed object, the weight upon the man’s shoulder will be six-thirtieths of the total weight,” or sixty pounds. Appellee testified “that the door was two inches thick and that it was back on the bar about six or eight inches from the point where the bar was resting on the track; that the bar was about thirty inches long. ’ ’

But appellee also testified that the door weighed five or six hundred pounds. That he was in a stooping attitude and on sloping ground. That one end of the bar under the door was not as low as the other end. That when Hall hit the door with the maul the weight came down towards appellee. That other witnesses who were assisting in sustaining the weight of the door turned loose when Hall struck the same. Now it appears to us from the above testimony that counsel’s calculation and conclusion are not demonstrated as physical facts. Therefore, should this court concur in the conclusion reached by counsel it would necessarily invade the province of the jury. For it is a question for the jury to determine as to the weight of the door and as to what weight came down upon the appellee when those who were assisting to sustain such weight suddenly loosed their hold. Certainly this court could not be expected to say as a matter of law that the uncontroverted evidence established as a physical fact that a weight of only sixty pounds fell upon appellee under the circumstances detailed by the witnesses. It is not for this court to say that Hall was the only credible witness. The issue as to the credibility of appellant’s witness, Hall, and of the appellee and his witness, Webb, was one peculiarly for the jury to pass upon. But even if Hall were the only credible witness as to the weight of the door as claimed by appellant’s counsel it would still be an issue for the jury as to whether or not sufficient weight was thrown upon appellee, under the facts stated above, to produce the injury of which he complains.

Even the witness Hall does not contradict the testimony on behalf of the appellee to the effect that he struck the door without warning and that when-he did so they turned the same loose leaving appellee to sustain the weight, whatever that weight was. Hall only says, “I did not see a man turn loose the door. The witnesses for the appellee show that they were exerting their full strength and that when they turned loose,” “there was nothing to hold the door except appellee and his pinch bar.”

(1) Considering the sloping ground, appellee’s stooping position, the fact that the end of the bar resting on his shoulder was lower than the other end, that the weight of the door might have been as great as six hundred pounds; that same was dropped down towards appellee when the others released their hold, leaving him to sustain the full weight; that the door had not been thrown in the groove at the top, all of which the above evidence tends to prove, we can not say as a matter of law that the evidence did not warrant the jury in finding that appellee was injured in the manner claimed by him.

(2) Second. Appellant contends that the verdict was excessive. The appellee at the time of the injury was forty-two years of age, he was physically strong and almost constantly at work. After the injury he was unable to do apy physical labor. He could not stoop over to pick up anything. If he wanted to get down on the floor he had to get down on his knees. He had to sit in a straight chair, he could not sit in any other kind. He could not use crutches because he could not stand the swing. He had no strength in his back, his nerves were ruined.- He was growing worse instead of better, and at the time he gave his testimony it had been nearly eight months since he was injured. He was twenty-five pounds lighter than he was before the injury. He was earning $2 to $2.25 a day at the time of his injury, and if he had been able to work at the time of the trial he would have been earning $4 a day for eight hours work. His bladder was injured. He was compelled to urinate much more frequently than before the injury and there was a burning sensation when he tried and could not urinate. Since being injured he had had the headache so much that it made him weak. Appellee gives in his testimony the above as -some of the results from his injury. He discusses his treatment and his suffering from the time he was injured until the trial. He stated that the next morning after the injury he got up and started to make a fire in the stove and all at once his muscles seemed to relax, his wife got him to bed, the doctor of appellant came and put straps on his back and continued to treat him for about twenty days at his home. Appellee went to the doctor’s office from August 21 to some time in October. Then he was sent to the hospital in Little Rock for treatment where the doctors treated him. He testified concerning what was done by the surgeons in examining and treating him, and stated that the treatment gave him so much pain that he could not speak; that the doctors had to put straps on his back with steel stays and laces which he was still wearing, and if he took them off he had no strength in Ms back and would not be able without them to walk across the room.

One of the physicians who was called by the appellee to testify stated that he obtained the history of the case aha examined him for objective symptoms so as to come to a conclusion as to what he was suffering from. He found that appellee’s pulse was 120, a normal pulse is 72. His abdominal and cremaster reflexes were absent. The increased pnlse indicated that he had a nervous irritation. He showed a tenderness over the lumbar regions. There was a breaking down of the nerve reflexes in the lumbar regions and some of the joints were ruptured. In ’dew of his age, and that it had been eight months since he was hurt, and the condition that appellee was in at the trial, witness calculated that his injury was organic, 'and that all such injuries were slow in repairing. In witness ’ opinion his chances for recovery were very unfavorable.

Another physician who had examined appellee, after entering into detail in describing his condition, substantially corroborated the other physician. He stated that in his opinion the condition of appellee was due to the sudden weight being thrown upon him; that the injury strained the muscles of the lumbar regions and the back part of the pelvis which was manifested by the loss of weight and loss of sleep and indicated a serious disturbance of his nervous system; that the outlook was not good for his recovery.

Experts were introduced on behalf of appellant who testify, in substance, that they had examined the appellee soon after the alleged accident and found no injury of the shoulder and found no inflammation in the lumbar region; that there was a malformation in the vertebrae which in their opinion was congenital; that if the condition of the vertebrae had occurred at the time of the accident there would have been inflammation at the time they made their examination and the pain would have been instantaneous and so severe that appellee would have cried out and probably would have fallen in his tracks; that a man with “that sort of back would be expected to oreak down after years of hard labor which appellee states he had undergone. These experts also stated that appellee could have strained his back while lifting at the door with the pinch bar and have had all of the symptoms of which he complained.

It was an issue for the jury to determine under the above evidence whether or not appellee’s physical condition and the pain and suffering incident thereto were caused from the injury. The measure of appellee’s damages for the physical injury and the pain and suffering incident thereto, if any, which he alleged he sustained through negligence of appellant, was, under the above testimony, likewise an issue of fact for the jury. We are required under a familiar rule to give the testimony its strongest probative value in favor of the verdict of the jur>. When this is done it can not be said that the verdict was for an excessive amount.

Counsel for appellant state in their brief that the first instruction given by the court at the request of the appellee was erroneous because it allowed the jury to return damages as for a permanent injury to appellee, citing St. Louis, I. M. & S. Ry. Co. v. Bird, 106 Ark. 177.

Upon an examination of this instruction as set forth ■ in appellant’s abstract we discover there is nothing in it on the subject of permanent injury. Moreover, appellant did not make any specific request of the court to instruct the jury that there was no evidence to warrant a verdict for the plaintiff (appellee) based upon any permanent injury, as was the case in Railroad Co. v. Bird, supra.

There are no errors in the record and the judgment is therefore affirmed.