126 Ark. 377 | Ark. | 1916
(after stating the facts). It is insisted by counsel for appellant that the court erred in giving instructions numbered 7 and 8 at the request of appellee. The instructions read as follows:
“7. If the evidence shows that defendant’s motorman did not hear the approach of the fire wagon upon which plaintiff was riding, in time to stop his car, before the wagon was struck, if it was struck, yet if the jury believes from the evidence that he could in the exercise of ordinary care have heard the approach of said fire wagon in time to stop his car before the collision and that his failure to hear the approach of the fire wagon was not due to the fact that it could not be heard, but to the fact that on account of his failure to listen, he did not hear same, and that he could have heard same in time to stop the car if he had listened, with ordinary care and attention, then t¿e motorman was guilty of negligence in the operation of the car.”
“8. If the jury believe from the evidence that a fire alarm was given by the ringing of fire bells or by gongs attached to the hose cart or fire wagons, and that the motorman, operating the street car at the time of such alarm, heard such alarm before colliding with the fire wagon, provided he might reasonably apprehend that fire wagon was moving toward such car track, then it was his duty to stop the car until said fire apparatus passed, or until he ascertained that same was not moving in such direction as to interfere with the car. If the jury believe from the evidence, he could have heard same in time to stop the car before a collision if he had been listening with ordinary care and attention, the defendant is held to the same duty as if the motorman did in fact hear the alarm.”
This was a common law action for negligence and the instructions , complained of were directed toward what the jury might find constituted negligence on the part of appellant. They made no reference whatever to the ordinance in question and their correctness must be tested as if no such ordinance existed. It is well settled that it is not practicable that the court should state all the propositions of law involved in a case in one instruction. Where the whole law can not be embodied in one proposition, it is better that the instruction should not conclude in “find for the plaintiff” or “find for the defendant,” as the case may be. These instructions were not open to that objection. Instruction No. 7 simply told the jury that if they found certain facts to exist, then the motorman was guilty of negligence in the operation of the car. Instruction No. 8 was on the duty of the appellant. Both the instructions would have been just as appropriate if the fire wagon had been any other sort of a wagon.
It is true that street cars from necessity must travel on their tracks but persons crossing the tracks at. a street crossing are not trespassers. Street car companies must anticipate that persons and vehicles will cross their tracks at street crossings, and their motorman must use ordinary care to discover them. What would be ordinary care would depend upon the circumstances of the particular case. Where there was nothing to obstruct the view the motorman might see persons about to cross the street, and it would not be necessary for him to listen. In the present case it was the contention of appellant that there was a building right up to the property line, and that this prevented the motorman from seeing the fire wagon. In other words, the only way the motorman could know of the approach of the fire wagon was by listening. Hence the instructions are not faulty because they only deal with the failure of the motorman to hear the approaching fire wagon. In short, it was not necessary to submit to the jury the question of whether he could have seen the fire wagon, for it was the contention of appellant that he could not have seen ft and the testimony on this point is undisputed.
Appellant was permitted to prove by one witness that she was familiar with the corner where the accident occurred and saw the accident. The witness was permitted to state that a brick building was right up to the property line and state the physical surrroundings as they existed, but was not permitted to state whether or not the motorman could have seen up A Street before he began to wind the brake. Error is assigned by counsel for appellant because the witness was not permitted to state whether or not this was a fact. If it be assumed that this was error no prejudice resulted to appellant from its exclusion. Appellant made a diagram of the locality and of the point where the car was when the motorman says he first saw the fire wagon and began to apply the brakes. The jury by consent were carried to the scene and permitted'to view itt Therefore they could have ascertained for themselves whether or not the motorman could have seen the fire wagon from the point where he first began to wind the brake.
Finally it is insisted that the verdict is excessive, The jury returned a verdict for appellee for $8,500. The attending physician stated that on examination of appellee shortly after the accident he found that the large bone of the leg had been torn away from its attachments, pushed through the ligaments and flesh for between two and three inches outside the skin. He also described another fracture and the treatment that was necessary to be given while appellee was in the hospital. He said that appellee was confined to the hospital for about six weeks and suffered excruciating' pain nearly all the time he was there. We quote from the record the physician’s description of appellee’s injuries as follows:
“Q. Can you describe that injury if he will take off his shoe and show to the jury how he was hurt?
A. Yes, sir.
Plaintiff removed his shoe and the doctor showed the jury how and where the leg was injured.
A. We found that this bone here was broken and the ligaments were badly torn and lacerated, and it was sticking out through the skin here, pushed through here two or three inches.
Q. That is the big bone?
A. Yes, sir; that is the hinge bone here was projecting the internal malleolus and this bone here is a hinge joint and was projecting here, and the tibia which is down on the leg there had an attachment to both bones, and these ligaments on top here are necessary for the small bone in the foot and they come down here over the foot and this place here was mangled and torn from its ligaments and these bones on this joint here were just pressed np like that. It was necessary in order to put this bone back to'use a great deal of force, even more than we were able to exert to replace it so it was necessary to make a little incision here and then we sutured it over, and with very slight infections it healed very nicely.
Q. And he was able to leave the hospital in how long?
A. About six wéeks.”
The judgment will be affirmed.