76 Ark. 227 | Ark. | 1905
Lead Opinion
(after stating the facts.) 1. The negligence of the company in failing to give the signals, required by law was abundantly established, and the conflict in the evidence on this point has been settled by the jury. The next question, and the one most earnestly presented here, is that‘the evidence showed that Hitt was guilty of contributory negligence in driving on the track under the circumstances set out in the statement. Mr. Justice Brewer, speaking for the Supreme Court of the United States, said: “It is well settled that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them. (Citing authorities.)” Richmond & D. Rd. Co. v. Powers, 149 U. S. 43. The authorities sustaining this doctrine are collected in St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549, 33 S. W. 1070. Testing the evidence upon this principle, it cannot be said that the facts disclose a situation rendering it negligence for Hitt to drive onto the track. At a distance of 82 feet from the track he took the precautions required by law and common sense, and, neither seeing nor hearing anything to indicate a train was coming on the main track, and, the way being made clear, and employees standing near, with better opportunity of seeing or hearing than he had, who would doubtless warn him for humanity’s sake alone, if no duty rested on them, not to cross in front of a rapidly approaching train, and, after consulting with his son, the fatal drive began. While it is true the sheet of the wagon obstructed the vision on either side, and in a measure the hearing, yet they believed from their investigation that the way was clear, and they continued to look ahead and listen. The electric arc light and the headlight of the freight engine, casting their rays on the crossing, might well tend to prevent the discovery of the light from the headlight of the approaching train. The situation confronting Mr. Hitt was not such as requires the court to say, as a matter of law, that it was per se negligence, under the circumstances, to attempt to cross the track. The ringing bell or sounding whistle would doubtless have given the warning of the approaching train, which was not otherwise apparent to Mr. Hitt or his son. These are facts from which fair-minded men may draw different conclusions as to whether the care exercised was proportional to the danger to be avoided, and such as the situation called for from men of prudence and caution. When such are the facts of a case, then the question must be settled by a jury, under proper instructions.
2. The next matter assigned as error is the giving of the third and fourth instructions, which are set out in the statement of facts. The point urged against these instructions is that they displayed to the jury an expression of opinion upon the part of the court upon the weight of the evidence. It is further urged against the third that it has singled out certain parts of the evidence in favor of the plaintiff, and disregarded every item of contributory negligence, and, without referring to the same, in a counter statement, has said the weight of this specific evidence is sufficient to set aside all the evidence establishing contributory negligence. If there is evidence to sustain a particular theory of a case, the court should properly instruct the jury as to such theory. Smith v. State, 50 Ark. 545, 8 S. W. 941. Instructions should declare the law as applicable to any view of the facts which upon the evidence may be taken by either of the parties to the cause on trial. Luckinbill v. State, 52 Ark. 45, 11 S. W. 963. Every instruction should be hypothetical, i. e., predicated upon the supposition that, if certain evidence be true, then the legal consequence resulting therefrom is one way or the other. State Bank v. McGuire, 14 Ark. 530; Collins v. Mack, 31 Ark. 684. It is error to refuse to give a specific instruction correctly and clearly applying the law to the facts in the case, even though the law, in a general way, is covered by the charge given. St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134, 62 S. W. 64. Applying these settled principles to the instruction in question, it cannot be said that they are open to the objections urged. Each side prayed and was granted many specific instructions, covering phases of the case which they desired drawn sharply to the attention of»the jury. The court fails to find error in them, and, taken, together, they consistently present the whole case, generally and specifically.
3. Error is assigned in the refusal of the court to give the sixth instruction. The distance from the center of the side track upon which the freight train stood to the center of the main track, upon which the train was approaching, was 14 feet. It was therefore an impossibility to have avoided the accident at that late moment. The mules drawing the wagon were on the main track before the wagon could have cleared the freight train, and the freight train behind them was whistling at that moment. The care is to be measured by the act of going into this danger, not when it is too imminent for avoidance, and when excitement and danger dethrone judgment. The case was properly submitted under instructions fully explaining the care required, and it was not error to refuse to give this one.
4. Objection is made to admission of testimony of a life insurance agent as to the expectancy of life, as shown by the mortality tables, of a man of Hitt’s age, and an estimate of the amount required to purchase an annuity equal to Hitt’s income. These tables were held admissible, and their uses explained, in Arkansas Midland Ry. Co. v. Griffith, 63 Ark. 491, 39 S. W. 550. The record fails to show the calculation complained of, but it •could not be error, as it was but relieving the jury of the labor involved in it. The court gave the following instruction on the subject: “If your verdict should be for the plaintiffs, you will assess the damage at such sum as will compensate them for their pecuniary loss resulting from the death of the husband and father. In estimating this loss, it is proper for you to take into consideration the age, health, habits, occupation, expectation of life, mental and physical capacity for and disposition to labor, and the probable increase or decrease of that ability with the lapse of time; his earning capacity; the care and attention, the instruction and training, one of his disposition and character may be expected to give to his family — and thus determine the value of the life. From this amount deduct the personal expenses of deceased, and the balance, reduced to its present value, would be the present amount of your verdict, provided such of the deceased’s children as were minors at his death or at this time would not be entitled to any compensation on account of death of deceased for a period beyond the time of their attaining their majority.” It is seen, therefore, that the court properly gave the elements to consider in arriving at the compensatory amount. If the calculation was made, it was useful only to reach the probable amount required to purchase the annuity to represent his income, and from such amount personal expenses were directed to be deducted.
5. The verdict is assailed as excessive. It is less, by the sum of $1,054, than the sum representing the present value of his income. Of course, his personal expenses should be deducted —likely much more than said $1,054; but, on the other hand, there was another element proper to enter into the verdict, and that was the loss of his care and attention to his minor children. St. Louis & N. A. Rd. Co. v. Mathis, ante, p. 184, and cases there cited. The verdict is not excessive.
The judgment is affirmed.
Rehearing
ON REHEARING.
In their brief on motion for rehearing counsel for the appellant challenge the correctness of various statements in the “Statement by the Court,” and also raise anew questions of law determined on the former hearing.
The statement by the court does not purport to decide any conflicts in the evidence, nor detail the testimony of the witnesses, but .merely to state facts deducible from the evidence most favorable to appellees, in order to test the sufficiency of them to sustain the verdict.
1. The first statement challenged is that the train on the side track was 1,200 feet long. They quote from the engineer in charge of it to the effect that he had only a couple of cars attached to the engine; but further in his evidence he showed he was going back to couple to the rest of the train, atid that it altogether had about twenty cars, and that their average length was 60 feet, which would make the whole train 1,200 feet, as stated. As it was all between the Hitts and the main line, part on either side of the crossing, it was considered by the court as it was presented to the Hitts.
2. The next statement challenged is this:
“They started to drive across slowly. The brakeman at the pilot of the engine was standing on the ground, and they passed in front of him, not more than twenty-five feet away. No watchman was kept at the crossing. The brakeman made no effort to stop the wagon, and he knew the passenger train was coming
There is some negative testimony to the effect that there was no holloing to the Hitts by the brakeman, but the court did not intend to find that as a fact deducible from the evidence, but merely that no effort to stop them was made which was known to the Hitts. The court was considering the situation entirely as viewed by the Hitts when they started to drive across, and was not sustaining any negligence against the company predicated on the dereliction of the brakeman to stop the Hitts. The court has no doubt that the truth was exactly as stated by the brakeman, as follows:
“You made no effort to get in front of the team and stop them?”
■ “No, sir, -I didn't make any effort to get in front of it.”
“Did they reply to you when you holloed to them ?”
“No, sir; not that I remember. Whether they noticed it or not, I can’t tell.”
Counsel argue the point as if the court was predicating negligence against the appellant on the ground that the brakeman made no effort to stop them, and call attention to the abundant evidence of his and other cries to them just before they were struck. As stated, the court did not consider the conduct of the brakeman in considering evidence of the negligence of the appellant, and was considering the situation of the brakeman and his actions, so far as known to the Hitts, in determining whether , or not they were guilty of contributory negligence per se in attempting to make the crossing. The brakeman had a few minutes before, when the crossing was blocked by the train, told them it would soon be cleared, and it was soon cleared, and he was seen standing near by and in a position where he could better see and hear than they could. In determining whether the clearing of the way was an invitation to cross, and whetherjt was safe to cross, the Hitts could properly take into consideration that the brakeman was standing in a favorable position to see any danger, and, as stated in the opinion, aside from any duty resting on him, would doubtless, from humanity’s sake, warn them of any danger which his better position would enable him to see and hear. The fact that they did not hear his cries later, which is shown, does not change the situation as presented to them when they started to make the drive across the tracks. While not a factor in determining the negligence of the company, it is a factor in measuring the conduct of the Hitts, and as such alone was it considered by the court. The statement complained of should read: “The brakeman made no effort tor stop the wagon known to the occupants.”
3. Other matters are presented in the brief, and have been considered, but they are the same matters heretofore presented and considered, and of them counsel say:
“The court’s attention was called to all of these facts in the original brief, and the record shows them as we have here quoted them. Are we not entitled to a rehearing? And' should not this case be reversed? We have tried, respectfully, to refer the court to the testimony, which has been evidently overlooked; or, if not overlooked, has not been carefully considered by the majority of this court. We deem it our duty to bitterly protest against the ruling of the majority of this court. We deem it our duty to show to this court how it has rendered a judgment directly in violation of the repeated decisions, unbroken, of this court.”
The court is unaware of overruling or failing to follow any previous decision of this court, but, on the contrary, believes that it is but applying the principles of many previous decisions.' On the chief point in the case — whether the. action of the Hitts in making the drive across the track was per se contributory negligence, or whether they exercised the care required by law— the court applied a familiar principle upon which the authorities are collected in St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549, and which is fully stated by the Supreme Court of the United States in Richmond & D. Rd. Co. v. Powers, 149 U. S. 43. The motion for rehearing is denied.
