*1 662
the Interstate Commerce pursuance Commission made in thereof, the use of caboose cars platforms being without expressly authorized thereby. As we already have indicated, wholly in statute is effectual as to the construction equipment of caboose cars used companies railroad engaged in commerce, interstate because Con gress taken regulation. has over that field But, ineffectuality its stop does Being there. so distinguish drawn as not to between interstate and commerce, legislation intrastate it cannot stand as af fecting provisions intrastate commerce interdependent alone. Its are and inseparable, and it must stand or fall as a whole. Accordingly, it must be held be unconstitutional and void. There has ever been conspicuous courts, State, effort of our both Federal and pre unimpaired preclusive regulate serve power Federal commerce among preserve unimpaired the several time states and at the same power regulate of the several their own states to internal affairs. Employers’ (Howard Liability Cases v. [The Railroad and Brooks 463; v. 212 Railroad), Railroad, U. S. Mo. State v. S. W. represents necessity If this Missouri statute a real for the 500.] protection will trainmen, steps be taken meet railroad doubtless by change regulations. present need Federal above,
II. In view of the it becomes un- conclusion announced necessary questions presented the briefs and to consider other arguments oral of counsel. discharged. judgment Davis reversed, and the defendant Cooley, CC., concur. HeNWOod, C., foregoing opinion
PER CURIAM: 'The judges adopted concur. All of the opinion as the of the court. Ramey Appellan Company, D. O. v. Railroad Missouri Pacific t . (2d) 21 S. W. 873. Two, August
Division 1929.
o>
(cid:127)COCO n CO ap- Sheppard Sheppard and J. C. Cole, Arnot L.
Thomas J. pellant. *5 Campbell E.
Abington, Abington Freer, & Tom W. and John respondent. Miller for
COOLEY, judgment C. Plaintiff recovered in the Circuit Court $25,000 County Butler for personal injuries by caused his train, appeals. struck defendant’s and defendant badly injured Plaintiff was struck passenger northbound at about eleven a. m., train of defendant Sunday, August on 10, 1924. upon public crossing accident occurred at Russell, Arkansas, village 200 population. about Defendant’s railroad at point spoken running is of as north south, but the direction said that at witness One slightly northeast southwest. in fact fifteen runs about railroad struck the crossing where depot the track south degrees Some feet east of north. village by two east- It crossed west. little to the curves a *7 other of north the south public streets, one roads or and-west of its track and on west side stands the depot, which defendant’s was Plaintiff roads. equi-distant from the two east-and-west about which automobile, on the road in a Ford driving eastward, alone, witnesses depot. Plaintiff’s estimate railroad north crosses the north the north of crossing 300 325 feet of end about be the -accident. the time of Measurements depot, the as located at crossing be 380' The distance to feet. proved by show the defendant highway, of of due to the line the was then somewhat north the depot this stood across defendant’s road fact that at one time “angled” north roadway of railroad the the west the traveled angle depot. or pass end of the “elbow” around the north roadway twenty or west the traveled was some fifteen feet then crossing track, point approaching from the of from which one the the east, north go practically northeast, rather more than west would north several On and, crossing, almost for feet. as he neared the depot track, north of the and between the west side of the railroad pole post bearing a semaphore it were highway, and the there a sign say which to obstruct crane, a and a mail witnesses tended road A highway. distance to the north the view southward from the short of there were depot highway, and west of the and south the several large hanging with leaf. boughs, low then full Some these trees right-of-way. also an trees were on the There was outdoor railroad depot apparently though railroad, station near south of the toilet the clear, farther near track this is not south and the there were dwelling shop, and a blacksmith latter some scattered houses the ¿ being perhaps quarter depot; of a from the all of mile these build- ings being saplings west of railroad track. There also some the were growing railroad, crossing- west the south of the south and near or depot above mentioned. About one hundred feet west of so the running graveled pike south, a road north there was and on the fronting pike, west side of it and about feet south of the filling was was on, road there at which station, a were several gathered village men accident, who witnessed the well- about or depot, pike house shed northwest of east of corner on, boys and south of road were number of Beginning young point immediately men who witnessed also it. at a crossing north of the on the side of the track west and ex- railroad tending on right-of- a distance of some feet northward way track, near the were railroad height there ties stacked to a ap- feet, the view northward one
five to seven which obstructed highway. on proaching from the west person approaching rail- testified that a witnesses Plaintiff’s on plaintiff was could not see from west on the road road track depot on account of the obstructions above men- a train south track; five or tioned, within few some said six feet until agreed feet, eight ten, all one would have be but some seven witness, intelligent man, told thus: apparently an it close. One viewing Ramey car Mr. old wreck where “Well, we had been coming from freight train was struck and a south. Some hardly train, got we and we one made the remark that could see places freight if it, coming could see train different to see we with from about even well along up the south. shed We right on track. We could it all from moved toward the see pike glimmer road and we could see a of it as we little moved little on Looking further down the toilet room east. east there was a space any it, a few feet we could see we could see more then *8 right got up till we close to- the track.” morning procuring On plaintiff, the the accident after of some gasoline filling station, pike at from road the turned the into the east- slowly and-west and drove eastward road toward the railroad cross- ing. point twenty stopped thirty-five He at a to feet west the track, listened, very to and looked the south then started ahead slow- ly, looking speed again northward. His after he started forward variously by from or estimated witnesses at two and half to five six miles an hour. “About as fast a man would as walk.” Defend- eight ant’s fireman it at to estimates ten miles an hour. He had scarcely again than more started forward when those about fill- ing sight station well saw and shed the train' come into at the north depot. end plaintiff, of the Some them called out to but he did them, not just hear and was struck as the front his wheels of car upon perhaps dropped or about had over the west rail. Some thought stopped car an struck, before it though was instant he reverse; tried thought stop. him-, had to others it did not Plaintiff self nothiug that testified he remembered stopping at all after looking regained for the train hospital. until he consciousness stopping looking ITe possible remembered approaching for trains seeing hearing none, stopped his memory but there. When hospital he came himself in to he did know hap- not what had pened to him. plaintiff which train through struck was a passenger train,
consisting engine and tender and eleven or twelve cars. It was not stop to running scheduled at Russell and was speed at a variously from forty fifty estimated being at miles an hour, perhaps, a little late, nearly but on engine time. The whistled the station at whistling post quarter depot, of a mile south ac- about a but plaintiff’s evidence, which was cording there an abundance on witnesses, point by unimpeached or a dozen more the whistle rung all, thereafter, signal nor was the bell at no was not sounded being given Avarning approach crossing or of the train’s for the on plaintiff which seem not Avasstruck. Most the Avitnesses to have appeared depot. train from behind heard the till about the time it making great noise, It could not have been deal of as one witness’s point hearing A-vas that his attention first attracted it at “clicking” running of the rails and the noise of the train about at the same time. again
Plaintiff, stopping had after he looked to south starting described, forward as above could have seen train when defendant’s, passed depot, and after it north end fire- plaintiff man point approaching from and did see could track. warn plaintiff, testifying No effort Avasmade to the fireman Avhen twenty thirty he first noticed him or feet crossing, approaching slowly, eight from the not faster than or ten hour, engine miles an and the aa’us north about end station; thought plaintiff stop, that he Avould and that when he going stop realized twenty Avasnot the train was Avithin cross,-examination thirty (on fifty or him sixty feet) feet of he said engineer too close to avoid the collision. The testified he plaintiff, right did see his station on the or east side of the crossing being cab and his view to the west cut off boiler; thirty that AAdienwithin twenty-five crossing feet of the him applied emergency brakes, fireman called to and he knoAA'ing something Avrong, stopped 1,000 about 1200 feet. pleads
Plaintiff three sections- of the Arkansas statutes as follows: *9 “See. 8562. All which’ may railroads are now or be hereafter operated built and in or in part Avhole in this State shall be re- sponsible damages persons property for all by and done or caused running of trains in this State. A thirty pounds
“See. 8568A. bell of weight, at least or a steam Avhistle, placed shall be on each or engine, locomotive and shall be rung eighty or whistled at the distance at least from rods place AA'liere any the said road shall cross other road or street, and kept ringing whistling be passed or until it shall have said road street, penalty under a of two dollars for every neglect, hundred paid by corporation owning be railroad, one-half thereof to go to the informer and the other county; corpora- half to the and the tion shall damages also be for all which by liable shall be sustained any neglect. person by of such reason personal injury or railroads, for against In all suits “Sec. 8575. trains, contributory State, in this running of by the
death, caused negligence of the where the recovery prevent a negligence shall negligence degree than less injured or is of killed person so causing damage com- railroad agents employees of the officers, negligence contributory such provided, that where of; plained re- killed, the amount of injured or person part of the shown on the negli- contributory proportion such in diminished covery shall be ’’ gence. petition is: in charged negligence employees servants then and defendant, agents, its “That wholly neglected failed and charge operating train said there upon the locomotive of said ring the bell whistle or sound by throughout eighty last rods traversed said continuously train crossing the said street immediately train reached before said train duty plaintiff, injured as was their which train struck and at said Arkansas hereinabove set out.” laws of State so to do under the pleaded existence of the stat- answer admits Defendant its negligence, pleads allegations of utes, plaintiff’s denies approaching train or listen for the negligently look failed to stopped and could have same point have seen at a where he could plaintiff “carelessly heedless- injury, and that and avoided the bell and alarms which and the ly to listen for the whistle failed crossing, neg- street approached he said given at the time upon injured, track and ligently carelessly drove said contributing was the sole negligence and carelessness that his said may ac- injuries have received reason of said of such as he cause hereby pleaded negligence is bar of cident, any, if and said accident.” have sustained strongly urges court should Appellant
I. that the ground from the evidence the evidence on the its demurrer to contributory guilty of conclusively plaintiff was appears greater degree equal than that of negligence to or think otherwise. If it train. We operators of the negligent again in not' conceded stopped, he had looking to south after looked thirty-five twenty to feet from point listened contributory signs approaching train, of an no track and discovered right recover under the Arkansas stat- not bar his negligence does equalled or negligence exceeded that of de- pleaded unless his ute charge Though point train. from fendant’s servants *10 approaching the train south of not see stopped he could at which he statutory signals have heard the had depot, he could doubtless the supposed reasonably have if a train they may that given, and been
673 charge in it would direction those approaching from especially approaching in duty signals, such perform giving -their village. He been to see through had not able passing piled probab- near it and was track on of the ties northward account view in get a direc- ly approached crossing- trying as he north, nearly northeast, perhaps more moving or tion. was then He right in sharply turn to the would had to his head so that he have first point from -which could he order look south as he reached pile behind of ties. Plaintiff’s evi- expect north from to see to the determining true, m demurrer must be assumed to be dence, which a crossing. for nor bell. sounded neither was shows that whistle depot of the fire- train was the north end defendant’s When the approach- plaintiff twenty thirty crossing, from the man saw or feet ing steadily approach, apparently oblivious of train’s given. warning signal Had he been warned then no was even feet, in defend- stopped have two or three and had could performed duty in train time charge ant’s servants at that enjoined upon plaintiff’s injury no would statute, them doubt by the say court not have been averted. In these circumstances the could guilty negligence equalling or as matter law exceeding rightly jury. defendant, that of left it to in Francisco discussing question
In v. St. Louis-San like Hiatt Ry. 806, involving ease Co., crossing 308 Mo. 271 W. 77, S. plaintiff, approaching in on Arkansas which the same statutes and she was much farther railroad, could have seen the train when plaintiff in ease had her attention from the track than was 96) (308 momentarily Mo. l. : distracted, been said c. court comparative negligence . statute “. . the doctrine of jury de- part Arkansas, it was made a of the law of negligence plaintiff, and this termine the relative of defendant and they done, adversely have to defendant.” (2d) 604, Bradley Co.,
Allnutt v. Mo. Pac. Railroad 8 Fed. appellant support v. Co., Pac. Railroad 288 Fed. cited Mo. brief, held this contention its which it was that a demurrer distinguishable properly sustained, are on facts from support instant case. Three Missouri cases cited in claim are Arkansas, degrees negligence no in Missouri there are 22; Co., viz.: v. Mo. W. U. McPheeters Reed v. Tel. Railroad, Magrane Railroad, Mo. v. St. Louis Sub. Mo. 119. legally negligence
first hold two that there is no between difference gross negligence; degrees last that there are different while required circumstances, properly of care under different there are, speaking, degrees negligence. no no different Those have cases application to the Arkansas statute under consideration. *11 giving plaintiff’s of instruc- assigns in Appellant error tlie
IT. pre- you “if find from a telling jury that I, the tion numbered that the defendant railroad in this case ponderance the evidence of train, struck in- running its company, by the of prima-facie that is evidence jured plaintiff, then negligence part railroad of the defendant on the of ’’ negligence will holding pre- not be company; cases and it cites together with alleged proved, a causal must be sumed, and when alleged. injury Such is negligence between connection into other considerations to be taken rule, are general but there in case. account this upon were pleaded here relied statutes
1. The same Arkansas Ry. Co., in court Hiatt v. carefully in this considered of an instruction like effect as supra. were similar and The facts discussing approving given, 1 was in plaintiff’s Instruction said, l. c. 99: which the court upon 8562, which this clause supra, Section quoted,
“We have pleaded proven as is based. This statute of the instruction construing part Arkansas decisions plaintiff’s case. The a words, which is In other this is a case are in evidence. statute give foreign law. to such governed wholly by Arkansas We should highest meaning given tribunal Arkansas. to it statute universal construction has and the was enacted This statute injury property to either an that where it is shown that been proof by moving train, of the fact that a person has been occasioned presump- injury, statutory injury inflicted, and of the was so negligence injury result of the tion arises that such was the says nothing presump- about . . The itself railroad. . statute Supreme ruled negligence, Court of Arkansas has but the tion It presumption inheres such statute. first to such from last that in- granted by every person law to statutory right, substantive is a jured by moving train.” page 101: further,
And on that, held under this “Prom last the Arkansas court has first to injury per- death or to a statute, Section when it is shown that presump- by moving train, then there is a has been occasioned son against railroad, the railroad is then negligence tion as guilty by showing not been upon that it has called to clear its skirts statutory law, mere negligence. substantive, and not a This is procedure. inheres in the cause of action presumption rule by the statutory created presumption,’ it ‘a itself. The court calls liability. Plain- gives right action, which and fixes the statute is quoted, supra, tiff’s clause that we first instruction, far so as ’ ’ proper. giving followed Iiiatt case Instruc The trial court doubtless suggests in brief Appellant tion 1. its Arkansas decisions pleaded construing they were the statute are not case. Hiatt pleaded upon But and we are called to construe it. the statute recently Having statute, considered construed which but no then, showing it was and there the same now as or conten put upon tion that construction Arkansas courts has *12 changed, good why we see no reason been the conclusion its as to meaning may reached in the Hiatt effect case not now be re to, together with therefor, ferred the reasons which the hold include ings of Arkansas considered. In the courts there Texas it has been ‘' judicial held our courts do not take notice of that the laws of other states; of where but, pleaded the statutes another state are of will proven, courts this state refer for its the construction to the reported Ogg (Tex. [Ogg App.), decisions of state.” v. Civ. 165 Building S. W. 912. See & Loan also Eastern Assn. v. William son, 189 U. S. Ed. 47 L. 735.] think, too, 2. our own We statute authorizes us notice construing” question.
the Arkansas decisions the in statute 5336a, 1927, page provides: Section Laws “In every proceeding action wherein law of the another state of of pleaded, the United States America is courts, judicial the of this shall take public State notice of the stat- judicial utes and decisions of said state.”
By providing that the laiv of pleaded when another state our judicial judicial courts shall take notice of the law and decisions of Legislature such think state, we pleading meant that statute bring judicial should before the court construction' stat- by as interpreted ute courts the state which it was en- interpretation acted. Such seems be the reasonable of Section 5336a, put upon The supra. by construction statute the courts of in which it was part state enacted becomes effect a pleaded why such statute. When statute is should not the court re- quired thereby it meaning to construe be authorized to seek its duty effect from decisions of the court whose official it is to determine question? Furthermore, 3. appellant think we has invited our attention to such 6 of Arkansas decisions. Point brief it In its asserts that Sec 8575 of
tions pleaded Arkansas statute “and by placed the construction Arkansas courts statutes, upon said which pleaded,” not been has are practice rules of govern and evidence do therefore in the ‘ £ by courts of this State. To determine the construction the Arkansas placed upon statutes,” courts said do, as we are thus asked to decisions course must examined. be Ar- decisions conclude that we reasons stated For the properly he question'may construing statutes
kansas courts considered. construing the stat- courts Arkansas If decisions of III. case. is in no better considered, appellant to be pleaded are not
utes ab- create an construction, purports Section a literal Given Hiatt negligence. See regardless of liability, solute. fully dis- question is supra, where Ry. Co., v put construction by reason of the only It is cussed. held to has been the statute courts that by Arkansas upon neg- proof without by moving train, proof injury mean that of a instead only, prima-facie ease ligence, makes indicate. would terms of the statute literal case as the conclusive hypothesized facts jury that the complained of tells the instruction part of defendant. showing on the prima-facie amake negligence Arkansas construed with the statute This is accord to defend- favorable more courts, but less favorable statute. So it interpretation literal than be a ant would giv- prejudiced have been could difficult see how defendant *13 num- plaintiff’s instructions instruction, especially since ing of the theory petition of on the the 5 which submitted the case bered verdict for jury must be found authorize the what facts and told preponderance of the jury from the plaintiff, required to find the negli- specifying the acts of negligence defendant, evidence the any, contributory negligence, if plaintiff’s gence pleaded,.and that Instructions negligence of defendant. degree than said was of less 5 6 criticised. are not the Supreme Appeals or shall not reverse Court Courts of
“The error was com- judgment any court unless it shall believe that against appellant error, in by court mitted such the materially affecting R. S. action.” the merits the [Sec. 1919.] assignment against appellant.
We rule this urged brief, 6 by appellant in Point of its TV. The contention pleaded, by courts of Arkansas statutes construed the that the practice state, merely rules of and evidence rather that are applied, not to be since than substantive law and therefore governs, law the forum is answered in such matters the supra. Ry. Co., in conten adversely appellant Hiatt v. The same fully by are tion was there made and was considered the court. We reasoning ruling in Hiatt case and it satisfied with the the question purpose would serve no useful discuss further.
677 numbered instructions charged giving in V. Error is they propositions of law. abstract merely state ground that 4, on requiring the Arkansas law Instruction states in states or whistle. Instruction sounding of bell personal against railroads for in suits substance contributory running Arkansas, in of trains injury by caused negligence prevent recovery where the negligence does not employees of the degree than of less person injured is apply damage Other instructions causing complained of. railroad legal propositions trial. The case on stated principles to the these they applicable to case and had were those two instructions ap- them the case applying instructions we been embodied jury think the was not prehend criticism would be offered. "We no by they prejudiced the mere fact that nor defendant misled separately numbered instructions. stated claim assailed, appellant
VI. Instruction number 7 is Plaintiff’s concluding portion thereof, quoted, hereinafter con ing that plaintiff’s Instruction 5 and is erroneous
flicts with .contributory recovery *n authorizes whether the ^ greater negligence less, equal than employees. negligence defendant’s We think the subject only to such construction. deals with not It instruction damages reasonably have been under measure of could begins jury otherwise. It thus: stood jury from the evidence in court instructs the if
“The damages you plaintiff, you find for will assess his ease a verdict you may find and believe from the will fair- such sum as evidence reasonably compensate him ly injuries, any, plaintiff if having has sustained as a direct result of been struck defendant’s damages train; fixing you may of such amount take into your . consideration . .” things jury may enumerates the
It then various consider in *14 estimating damages and concludes as follows: may you fixing
. . and consider of all these matters in damages, any, by pro- amount of his if reason injuries, of said and you testimony if plaintiff guilty vided that find from that the was contributory negligence going upon of in the defendant’s track did, damages manner that he then the amount his should be may proportion you diminished in the find believe and from the contributory negligence plaintiff evidence that the of the to the bore negligence employees company of the the defendant railroad charge of the train that struck plaintiff, you if find em- said ployees negligent.”
, submitting ease his and plaintiff’s In numbered instructions recovery, and authorize be found to stating the facts that must and clearly informed well, jury was as in defendant’s instructions negli- contributory at all unless his not récover could degree negligence defendant found, than the gence, if less was they be Reading as must specified. together, all the instructions as only with the keeping in Instruction dealt read, mind that and damages clearly jury and was informed as to measure of that the in- plaintiff’s contributory negligence, found, by if other effect of dealing directly issue, with that- we are structions convinced concluding jury not have been misled confused could part of 7. Instruction urged
VII. excessive, It is that the verdict and so much so as is, prejudice. passion s^ow ^at the result and injury plaintiff At time thirty-one years of his was life, age, with 34.6 expectancy years, a and been had healthy, able-bodied, earning a mad, approximately industrious' year by $3,000 farming cutting a In buying, selling and timber. the’farming operations both and timber he a brother-in-law together, doing possible themselves, much of worked work as employing some additional labor. Plaintiff had married been about a month at injury. time his
By the force of the collision was hurled a distance of seventy seventy-five high enough feet and the air to be seen top over the train, when friends reached him bleed- he was. ing nose, mouth, ears and seemingly unconscious and dead. His surgeons, condition was such that for delayed some hours the operat- ing, thinking he would die. The nurse who him attended testified brought that when hospital to the he badly was so could she bruised not tell whether he was white or colored. He remained unconscious for ten days, and hospital twenty-five remained in the days, and was then taken home. At kept home he was good while,” in bed “a just long but how is not shown. He sustained, besides severe cuts bruises, a dislocated bone, and broken nose, collar broken a compound, compressed fracture of the skull side, on the left both plates being of the skull “crushed and down on mashed the brain.” The broken skull ruptured had causing blood brain, vessel of the clot blood to form beneath the trephining operation fracture. A performed piece A clot removed. of the skull about the size of a half dollar was operation removed now and there is depressed” a “much place at point, protected only by scalp, membrane sear spine tissue. His severely injured, wrenched and “jammed,” cervical, regions dorsal and lumbar all *15 and of course nervous shock very a serious affected, be sustained and great pain. suffered partially whole side is plaintiff’s left injuries of his result As the paralysis progressive as a being described paralyzed, condition of the left hand side, the motion on that atrophy of the muscles and eighty per Gray, cent. Dr. seventy to impaired being now arm and operation and who examined perform helped surgeon who a condi- night trial, described his thoroughly before away. wasting May, thus: “He is trial, the time of the tion at emaciating or wast- side is entire arm, leg left and the The left going on now. It atrophy. That is away. we call ing That is what slowly. It comes on At the atrophy. progressive what we call is practical- has in his left arm and much motion present he hasn’t time his whole side of The left ly hand at this no use of his left time. plaintiff’s lumbar Gray stated that Dr. further body is affected.” inch leg are an smaller His arm and be stiff. left vertebrae to seem flabby. opinion In becoming and right soft than the and are in- progressive paralysis atrophy are doctors the and of the body the doctors being on left side of the paralysis curable. The injury on, the to, or blood clot opinion there was were of the that an injury some atrophy attributed to brain. The is right side of the to, injury on, or blood opinion there was an clot were stiff, motion neck is re- right of the brain. Plaintiff’s side drawn a little to one twenty twenty-five per cent, the head duced impaired “in order to rotate “up down” motion side, the ’’ natural body. neck is not a con- he to turn his The his has head dition. lia,s impotent, and the medical witnesses been rendered Plaintiff of his opinion there is restoration no likelihood of physician Evans, Dr. powers. is erratic. sexual His heart- action during balance hospital him he left who treated after during year 1924, all that time as fol his condition described pulse very poor. was Some highly “He nervous his lows: was only very would last short days better, be but that he seemed to peculiar very pieces again. He had a time till he was all shot minute, pulse. pulse him I and found his have examined again him and it would be down ten minutes I would examine up it would be back eighty minute, and then ten minutes This, irregular. governor pulse very 100. caused His paralyzed certain being just out. The beats were to a knocked heart (cid:127) way.” just any way every Dr. extent, the heart went losing Evans said further the use of his left side. physicians plaintiff just who The evidence of examined before the bad, highly nervous, trial was that he is his nervous condition impaired. and that sensation as well as motion of the left side is *16 680 plaintiff’s injuries permanent physicians are
several all testified progressively will become worse. opinion and in their his condition plaintiff’s Gray paralysis like comes on Dr. testified that a case of gradually; plaintiff years, not reach his for may worst several gradually but will become worse. sleep well; weight in he cannot is
Plaintiff testified that reduced weight pounds 150 pounds; from of 185 his former normal to very nervous; attempts pains turn his he is that when to head it he him; injuries practically pain from all he has his suffered injury; being spine pain shoulders, neck, time since his his and and breast, cold, he takes in his head. He testified further that when all work had been able to do the accident about four he since was filling work station, weeks’ for which he per at a received five dollars week; crop” man, that he started “share with another but to it, not and in 1924 able to work had to abandon and tried work in to garden, get would but nervous and take the headache have quit; twenty that he could more than or not work fifteen minutes says having lie down. use arm without He he cannot his left all. paid plaintiff surgical,
It was shown that or incurred bills had for nursing hospital aggregating medical and treatment and $675. expense brevity plaintiff’s At injuries set we have out by shown the uncontradicted length, ap- evidence at some because pellant’s insistence that the verdict is excessive. That very seriously injured greatly have that he must suffered does question. not undoubtedly admit He will pain, continue suffer physical both ability and mental. His to do renumerative labor destroyed. impotent has physical He been rendered practically a wreck. It is not shown that or equipped educated business, carry profession on a requii’ing manual labor. In- sound, healthy capable stead of man, of performing the pleasures enjoying duties and of active life and the satisfaction of self-supporting participation in community, activities his plaintiff has practical helplessness, been charge reduced a state upon supporter family. rather than the head and of a
We have
appellant
cases cited
both
examined
and re
spondent on
question. Appellant
this
Trowbridge
cites
Payne,
v.
amounts allowed were injuries plain- extent case, the nature awarded earning capacity considered. age tiff’s guide only general can furnish at best adjudications
Former injuries where are determining allowed what sum should be in- cases are the case, no two in this because nature shown example, For none of same. juries effects thereof the and the along with such impotency do the element .cases cited we find *17 shown here. We have not over- permanent injuries as serious and of contribu- guilty if suggestion that appellant’s looked proportion such damages reduced tory negligence should be supra, page Mo. ease, Hiatt negligence. But, as said contributory negligence presump- jury if there was concluded damages proportion they awarded is that decreased the tion contributory negligence. such
Taking all circumstances shown into consideration the facts and say verdict prepared to that the is excessive. we are not judgment error We reversible record and the no find Henwood, accordingly CC., concur. affirmed. Davis adopted foregoing opinion C., PER CURIAM: The by CooTjEY, opinion judges All of concur. of the court. Whetsel, Appellant, H. J. v. Minnette Forgey, William Stark Forgey George Forgey, Appellants; S. M. N. Eva Davis, (2d) Defendant. 20 S. W. 523. Two, August
Division 1929.