83 Ark. 437 | Ark. | 1907
(after stating the facts.) The first instruction is criticised for stating that “if the defendant company suddenly started its train, and by reason thereof the plaintiff sustained an injury,” instead of saying “if the defendant company negligently started its train.” The criticism is without merit, because the facts assumed in this instruction would make it negligence for the train to be suddenly started, and it was proper for the court to so state, instead of incorporating a general term in the instruction. The instruction is not open to the objection that it assumes that the company was guilty of negligence, for it says that if “defendant’s employees failed to stop at the station long enough to enable plaintiff to alight promptly in safety, and while plaintiff within proper time was trying to alight defendant company suddenly started the train,” etc. In other words, if these facts were found to be true, then the court told the jury that the company was liable; but it did not assume that it was liable for negligence unless these facts were found to be true; and if they were true, negligence appeared as a matter of law.
2. The next objection is to the second instruction, allowing recovery for disfigurement of her person. Two of Mrs. Price’s daughters testified to their mother’s physical condition, and said that one shoulder was dropped down, and was lower than the other, and that this, condition only existed ■ since the accident. A physician who examined her testified that he found a dislocation of the humerus and scapula or shoulder blade, and the deltoid muscles strained. That the dislocation would create a very painful injury. He examined the lungs and found a dullness, as if .there was an abscess, which may have been caused by an external injury; and, further, that the injury to the shoulder was a permanent one, if not operated upon.- He further said that the dislocation of the shoulder caused one shoulder to be lower than the other, making a noticeable difference in the two.
There was ample evidence to go to the jury in regard to the disfigurement. The .present condition of the shoulder was sufficiently connected with the fall from the train to justify the jury in finding that her injuries were the result of said fall.
It is also said that the verdict is excessive. 'Certainly it is if the testimony of the appellant’s witnesses be accepted as true. But there was testimony adduced on behalf of appellee which, if true, would prevent this verdict being excessive. And the jury has accepted her testimony as the truth of the case.
Judgment is affirmed.