The plaintiff in an action for personal injuries was awarded a verdict against defendant in the Circuit Court of Jackson County for $37,500. Defendant’s motion for new trial was overruled on condition that the plaintiff remit $12,500 from the verdict. This was accordingly done, judgment entered for $25,000, and the motion overruled. Thereupon the defendant appealed to this court.
The plaintiff was a brakeman in the service of the defendant. He was injured January 10, 1914, at Bates, Arkansas. Pie was working on a branch line running from Hetherman, Oklahoma, to Waldron, Arkansas. When the train, on the day mentioned, arrived at the town of Bates, it contained only three or four ears. At that point there stood on the siding a number of cars comprising a bridge-and-building outfit, consisting of seven to nine cars; these were to be taken into the train on which the plaintiff arrived. Considerable evidence was introduced to show the method by which this was done and to explain the operation of the train at that time. It is not necessary to state this in detail. Briefly, the engine and one or two cars were cut off from the train on the main line, brought on to the siding and attached to the bridge-and-building cars; the train was then run back on the main line and backed to the cars of the train which had been detached, for the purpose of coupling them on again. It séems that the • conductor, a man named Johnson, remained with the section of the train which was left on the main track, while Smith, -the plaintiff, was engaged in assisting to couple and line up the new cars that were brought into the train. While this was being done it was discovered that a brakebeam was down on a car near the engine. There was evidence tending to show that the fireman, a man named Weller, gave what is termed a“spot” signal, indicating to the .conductor that something was wrong that required his attention. The testimony is
The plaintiff testified, and was corroborated by another witness, that he called to the conductor and told him the brakebeam was down,, and was directed by the conductor to go in and fix it. The fireman, Weller, notified the engineer that the brakebeam was down. Weller got a pick and went under the car for the purpose of attempting to repair the brakebeam, and plaintiff went under for the purpose of assisting, and while there he saw that a pin which goes through what is called a “floating lever” was out of position and'he attempted to fix it. In doing that his head came between the floating- lever and what is termed the “needle beam,” which is attached to the bottom of a car and runs crosswise. At that time the conductor, Johnson, was coupling up the rear remnants of the train with that section which had been taken in, and in doing so found some difficulty which required time, but finally made the coupling. He then made the necessary hose connections for the air and, using the term applied by the men, “cut in the air.” This caused the floating lever where Smith was working to move and strike Smith’s head, crushing it between that appliance and what is called the needle beam, causing the injury for which he sues.
The question as to defendant’s negligence was as to whether the conductor, Johnson, before cutting- in the air, knew, or by the exercise of ordinary care could have known, that the brakebeam was down, and also knew, or by the exercise of ordinary care could have known, that some of the men were under the car fixing it. If he did it was conceded that he was negligent in cutting- in the air, which would be likely to cause some movement and render the position of the men dangerous.
Also it was a question whether the plaintiff was negligent in placing himself in the position in which he was, without first cutting off the air from the car where he was working. The evidence on both of these proposi
I. Error is assigned to the admission of the testimony of E. C. Herron who, it is claimed, testified as an expert, when his evidence showed that he was not qualified as an expert. He was a chiropractic doctor and testified to the condition of plaintiff Smith before he was injured and the relation of his hurts to his present condition. He had no license to practice medicine and had received his education as a chiropractic mainly by correspondence.
Undoubtedly counsel for plaintiff is correct in his position that Herron did not qualify so as to give an opinion regarding the effect of the plaintiff’s injuries upon his physical and mental functions. He testified by deposition which was taken May 20, 1915, at Mena, Arkansas. This deposition was read at the trial which did not begin until October. The defendant was represented by counsel at the taking of the deposition and, of course, knew as well when the deposition was offered
In reading the deposition, this question occurred: “I will ask you if there is any part of the human body that is not affected by the brain and nerves?” This was objected to because the witness was not qualified as an expert. The objection was overruled and the exception saved. Witness answered that there was no part of the body but what was affected by the brain and nerves. The question was repeated and the objection renewed, whereupon the plaintiff’s attorney withdrew the former question and answer and also withdrew the question which had just been asked.
It hardly seems that the defendant, could have been injured by the question and answer even if it had not been withdrawn, because the witness had in effect answered the same and similar questions more in detail throughout his deposition without objection and the present question, to which the objection was made, and the answer added nothing to what he had already said. No other exceptions were saved to the ruling in the testimony of Herron. It is claimed by plaintiff’s counsel that the defendant was anxious to-have his testimony in for the purpose of ridiculing it as a weakness in the plaintiff’s case. The defendant’s conduct lends color to that claim. There was no error in receiving the testimony which can be considered here.
II. The appellant claims that the court committed error in permitting a witness to testify to a statement made by Johnson, the conductor, immediately after he learned that the plaintiff was injured, in which he said that he forgot that the men were under the car. Johnson had testified in his examination in chief that no one told him the brakebeam was down and he didn’t know either
The position of appellant is that this exclamation was no part of the res gestae, a matter not necessary to determine. It was offered for the purpose of contradicting the witness, and appellant claims it- was incompetent for that purpose. Two cases are cited by appellant in support of that position. [Koenig v. Union Dep. Ry. Co.,
In the Wojtylak case the court held that a statement of that character was not admissible in that ease, because it only tended to contradict a statement of the witness which was not pertinent to any issue in the case. [188 Mo. l. c. 288-89.]
In the case of Gordon v. Railroad,
In the case of Hutchinson v. Safety Gate Co.,
In this case the statement as offered indicated that Johnson knew the brakebeam was down and that someone was under the car and tended thereby directly to contradict the testimony he had just offered to the effect that he did not know those things. On the authority of the Gordon case the evidence was competent.
III. Appellant claims the court committed error in instructing the jury that if they should find from the evidence that the conductor cut in the air without first warning the plaintiff of his intention to do so, and if they further found that the conductor knew, “or in the exercise of ordinary and reasonable care could and should have known” the plaintiff was under the said car, etc., then he was guilty of negligence.
■ It is asserted that while there was evidence that the conductor knew there were men under the car, there was no evidence on which to base that part of the instruction which authorizes the finding of negligence if by the exercise of reasonable' and ordinary care he could and should have known that the men were under the car; that it was a question of actual knowledge.
Besides, appellant tried the case on that theory. In instruction numbered 2, and instruction numbered 9, offered by defendant, the jury were told that if the plaintiff went under the car without advising the conductor that the brakebeam was down and that the conductor did not know and “could not have known it in the exercise of ordinary care” then the verdict should be for the defendant. '
IV. Appellant with great ingenuity and force insists that the verdict is excessive and the defect cannot be cured by remittitur. The argument runs thus:
Appellant cites two cases in support of this position. [Hadley v. Union Pacific Railroad Co., 156 N. W. (Neb.) 765, and Pennsylvania Co. v. Sheeley,
However, there is another principle which applies here. That is, all presumptions are indulged in support of a verdict and a judgment. In an attack upon the propriety of a verdict the court must presume that the jury found every fact, of which there was evidence on issues properly submitted to the jury, tending to support the verdict. [Wright v. Green,
Y. It remains to consider whether the verdict is excessive, requiring a remittitur as a condition of affirmance.
The plaintiff’s head was crushed between the floating lever and the needle beam. His nose was mashed over to one side,' the bones of his nose crushed into his face; the bones in the skull were broken into rnany pieces, and these bones had to be taken out, leaving a space unprotected by bone, an inch and a half long and an inch wide. He suffered with convulsions for several hours until an operation was performed. This indicated pressure upon and injury to the brain. Blood was coming out of his eyes and ears. His suffering for some time was intense.
The permanence of the injury was testified to by several physicians who examined him. There was contradictory evidence as to whether any of the gray brain-matter oozed out at the time of the injury, but the evidence seemed to be uniform that his brain could be injured, and there was evidence that it was injured, by the blow, even if there was no rupture of the covering of the brain. His vision was impaired and the evidence indicates that he could not turn his eyes laterally and could only focus them on an object directly in front; he was unable to read except for a few moments at a time. A discharge came from his nose; there was a suppurative condition there, accompanied by a disagreeable odor. He had an ataxic walk and fibrillary tremors ran over his body at times; this is explained by the physicians as being entirely involuntary and incapable of simulation. His eyes fluttered on account of his inability to focus them on a direct object without moving his head, and that was because the nerve supply was affected with indications that the muscles which manipulate the eye were atrophied from diease. He was continually restless and nervous, with twitching and fidgeting,
The testimony of several physicians was that this physical condition would grow worse instead of better; that in no event could he ever recover his normal condition. There was some evidence offered by defendant to the effect that he would to some extent recover.
Before plaintiff was injured he is described by the witness as being in perfect physical condition; he was an athelete and had a naturally quick mind. He was apt at school. He began working for himself at fifteen years of age as a clerk in the commissary department of a planing mill, and did the work of an ordinary clerk. He learned unusually fast, acquired a limited speaking knowledge of the German language; took great interest in the literary exercises at school; he had some education in telegraphy.
The evidence tended to show that his physical condition had affected his mind, particularly his memory. The physician of the Kansas State Penitentiary and other physicians subjected .him to what is termed the Binet-Simons test, for the purpose of determining whether or not he was deficient in certain faculties of mind. Those tests are set out in the evidence, and the result was reached that his mind, by all those tests, was about equal to that of a normal child ten years old. His memory of recent events was very much impaired. Tlie tests to which he was subjected by the physicians
There was considerable evidence offered by defendant indicating that his injury was not as serious as the testimony offered by plaintiff would indicate, hut there was sufficient evidence by which the jury might very properly have found that his physical and mental condition was impaired beyond any possible recovery to anything like a normal state, and that his capacity for earning a living and enjoying life were reduced to a very low point. He was injured January 10,1914, and at the time of the trial in October, 1915, nearly two years later, he had been unable to earn anything. A .sufficient time had elapsed so that the permanence of his injuries or otherwise were capable of approximate ascertainment.
Appellant asserts that this court has never allowed a damage for personal injuries in excess of $25,000, and states it as if that were a definite rule. There is no definite rule laid down by this court in any case; each individual case has been determined upon its own facts.
The ease of Gordon v. Railroad,
The plaintiff in this case was 24 years of age and earned about a hundred dollars a month; the plaintiff in the Gordon case was 29 years of age and earned about ninety dollars a month. In the Gordon case the injury occurred in 1904, and in this case in. 1914, about ten years later. Twenty-five thousand dollars in 1904 was a much larger sum in purchasing power than that sum in 1914. While the injury in the Gordon case was probably more painful and more serious in its results, we are not prepared to say that the verdict for $25,000 by the trial court was excessive.
In the recent case of Turnbow v. Kansas City Railways Company, decided at the last term of this court, a verdict for $30,000 was affirmed on condition of a remittitur of $5,000. The injury was the loss of both legs, possibly not as serious as the injury in this case.
Respondent cites many cases from other States where much larger verdicts for injuries no more serious than that suffered by the plaintiff have been upheld.
The judgment is affirmed.
The foregoing opinion by White., C., is adopted as the opinion of the court.