96 Ark. 339 | Ark. | 1910
(after stating the facts). Witnesses for appellant testified that it was unnecessary in the proper operation of the train to start same with a jerk. Then, if the train did start with a jerk, as the witnesses for appellee testified, this was evidence of -negligence on the part of appellant, and if the injury of appellee was the result of this negligence, as the evidence tended to prove, then appellant was liable. The questions of negligence and contributory -negligence were properly submitted f-or determination by -the jury and upon -correct declarations of law.
This court has defined the duty of carriers to passengers on combination freight and passenger trains, and also the duty of passengers on such train-s iwith reference to their own safety. We need not repeat here the rules applicable in such cases.
The instructions of the -court were in harmony with the doctrine announced in the following cases: St. Louis, I. M. & S. Ry. Co. v. Hartung, 95 Ark. 220; Arkansas S. W. Ry. Co. v. Wingfield, 94 Ark. 75; St. Louis S. W. Ry. Co. v. Jackson, 93 Ark. 119; Arkansas Central Rd. Co. v. Janson, 90 Ark. 494; St. Louis, I. M. & S. Ry. Co. v. Cobb, 89 Ark. 82; St. Louis, I. M. & S. Ry. Co. v. Brabbzson, 87 Ark. 109; Pasley v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 22; Rodgers v. Choctaw, O. & G. Ry. Co., 76 Ark. 520.
Since, according to the undisputed evidence of witnesses for appellant, it was unnecessary to start this particular train with any jerk at all, the instructions at the instance of both parties submitting the question to the jury as to whether the jerk, if any, was a “sudden, violent and unusual” one, or of “unusual and unnecessary violence,” were more favorable to appellant than otherwise. Instruction number four, given at the instance of appellee, after declaring the duty of carriers to passengers on mixed freight and passenger - trains, and that the passenger assumed the risk incident to the proper operation of such a train, continued as follows:
“And, so in this case, if you find from the evidence, by a fair preponderance thereof, that Webb Holmes was injured by a sudden, violent and unusual jerk in the starting of one of the defendant’s trains, which said jerk amounted to more than a necessary incident in the starting of such train, and that he was at the time a passenger on said train, free from negligence on his part which could have contributed to his injury, and within his rights as a passenger, then in this case you should find for the plaintiff in some amount not exceeding $5,020.”
Counsel urged, as their “principal objection” to this instruction, “that it leaves the damages at large without being in any way controlled by the evidence.” Conceding this, the amount of the verdict shows that it was not excessive, and therefore the appellant was. not prejudiced. • As to damages, the only issue was as to the amount of damage appellee sustained by way of pain and suffering and medical attention.
There was no controversy as to the character of appellee’s injury, nor as to the sum expended for medical services. The verdict was less than half of the amount asked in the complaint. Even if the instruction offends the rule announced in Fordyce v. Nix, 58 Ark. 136, and St. Louis S. W. Ry. Co. v. Myzell, 87 Ark. 123, iwe can only reverse for errors that are prejudicial. The sum of $2,500 for the pain and suffering incident to the loss of an arm' that, for two-thirds of its length, “had been crushed all to pieces,” is certainly not exorbitant.
After the injury to appellee the conductor and division superintendent of appellant called a surgeon and asked him to “rush on” and “to take charge of” the injured man and “render all necessary means he could.” This conduct did not tend in the slightest degree to prove that the injury to appellee was caused through appellant’s negligence. It was but the manifestation of commendable sympathy for one in distress and the expression of a desire to relieve his suffering. It would be unheard of to construe these humane impulses of the agents of appellant as admissions of negligence in causing the injury to appellee. Therefore the doctrine of St. Louis, I. M. & S. Ry. Co. v. Walker, 89 Ark. 556; St. Louis S. W. Ry. Co. v. Plumlee, 78 Ark. 147, Prescott & N. W. Ry. Co. v. Smith, 70 Ark. 179, has no application .
We find no reversible error, and the judgment is therefore affirmed.
