128 Ark. 479 | Ark. | 1917
(after stating the facts). (1) This court in Barringer v. St. Louis, Iron Mountain & S. Ry. Co., 73 Ark. 548, 551, announces the law as to the duty of carriers to passengers while getting on and off trains as follows: “It is the duty of carriers to allow their passengers a reasonable opportunity of getting on and off their trains, and they must stop at stations long enough for that purpose. A reasonable time is such time as a person of ordinary care and prudence should be allowed to take. It is the duty of the carrier, in determining what is a reasonable time, to take into consideration any special condition peculiar to any passenger and to the surroundings at the station, and to give a reasonable time under the existing circumstances, as they are known, or should be known by its servants, for a passenger to get on or off its trains.” See, also, Hill v. St. Louis, I. M. & S. Ry. Co., 85 Ark. 529; K. C. So. Ry. Co. v. Worthington, 101 Ark. 128; St. Louis, I. M. & S. Ry. Co. v. Trotter, 101 Ark. 183, 190; St. Louis, I. M. & S. Ry. Co. v. Wright, 105 Ark 269.
(2) These are the principles which should have guided the court in its instructions in the instant case. Under the evidence the only question for the jury to determine on the issues of negligence and contributory negligence was whether or not the appellant had exercised ordinary care (that is, the highest degree of care which one of ordinary prudence would exercise for the security of passengers reasonably consistent with the business of a common carrier by rail and appropriate to the means of conveyance and the practical operation of the road), to stop the train long enough to enable passengers, while exercising ordinary care on their part, to debark therefrom in safety.
(3) Where the testimony tends to show that the negligence consists only_in a failure to exercise ordinary care to stop the train a sufficient length of time to allow passengers to get off in safety, the charge should relate only to that issue, and not undertake to define the duty of railway companies to their passengers under other circumstances and conditions.
(4:) Instruction No. 1, given at the instance of the appellee, of which appellant complains, is open to the above objection. True, it is in the precise language which this court declared, in St. Louis, Iron Mountain & Southern Ry. Co. v. Wright, supra, to be “the correct rule applicable to such cases.” There, however, and in the cases of St. Louis, Iron Mountain & S. Ry. Co. v. Purifoy, 99 Ark. 366, and Ark. Midland Ry. Co. v. Canman, 52 Ark. 517, where the court announced the law generally as to the duty of railway companies to their passengers, the court did not approve this language as a correct instruction for a precedent to be given in all cases where there was an injury to a passenger regardless of the facts upon which the cause of action might be grounded. The law as announced is a correct principle defining generally the degree of care which railway companies must exercise toward their passengers. Trial courts should be governed by the principles of law announced by this court and frame their instructions in accordance with these principles, but make them applicable to the facts of each particular case as they may be developed.
Here there was no testimony tending to show that the roadbed, track, cars or any other subsidiary arrangement connected with the structure of the road and necessary to the safety of passengers were not provided. If appellant was negligent at all, its negligence consisted, as above stated, simply in a failure to stop the train a sufficient length of time to allow the appellee to debark in safety. The instruction, therefore, covering these elements, was abstract in this case and calculated to lead the jury into the realm of speculation and to the consideration of issues not before them to the prejudice of the appellant.
(5-6) Instruction No. 3, given at the instance of the appellee, told the jury that if they found for the appellee, they should assess her damages at such sum, not exceeding the amount sued for, “as will, in your judgment, be a fair and just compensation for her alleged injuries to her back, kidneys,” etc.
This court, in Fordyce v. Nix, 58 Ark. 136, 141, condemned an instruction in this form, saying: “Verdicts of juries in actions sounding in exemplary damages, while they can not exceed the amount claimed in the complaint, should, nevertheless, in each case be reasonable and commensurate with the wrong done, as shown by the evidence adduced. The amount claimed in the complaint is frequently so exorbitant and disproportionate to the facts proved as, of itself, to suggest prejudice, and to tell the jury in such cases that they might find in any amount, not exceeding amount claimed, would be tantamount to saying that they would be justified in finding an excessive verdict.” The court, however, did not reverse the judgment in that case on account of the erroneous instruction because the verdict was less by $1,500 than the amount claimed in the complaint, and there was nothing to indicate that the jury could have been misled and the rights of the appellant prejudiced by the instruction.
Likewise, in St. Louis, Iron Mountain & Southern Ry. Co. v. Holmes, 96 Ark. 339, 343, we did not reverse the judgment for the error in giving an instruction in this objectionable form, because the verdict was less than one-half the amount asked in the complaint, “and was certainly not exorbitant.”
In St. Louis Southwestern Railway Co. v. Myzell, 87 Ark. 123, 127, we again condemned an instruction in this form, saying: “It tells the jury that they have the right to give the plaintiff exemplary damages, in addition to compensatory damages, in any snm which they believe proper, not exceeding $1,400. This is putting the assessment of exemplary damages at large, restrained only by what the jury may believe proper, when their assessment ‘must be commensurate with the wrong done as shown by the evidence adduced.’ ” See, also, St. Louis, Iron Mountain & S. Ry. Co. v. Boyles, 78 Ark. 374, 380.
In St. Louis, I. M. & S. Ry. Co. v. Snell, 82 Ark. 61, 63, we said: “It is unnecessary and improper for the trial court to make reference in an instruction to the amount sued for in the complaint. The jury, having heard the complaint read, are presumed to know that their verdict should not exceed the amount asked for in the complaint; and if the verdict is in excess of that amount, the court should strike out the excess. But where an instruction containing .such reference is properly limited by a direction to find only such amount as the evidence warrants, we do not, hold it to be prejudicial error.”
The instruction in the case at bar did not restrict the jury to a consideration of the amount of damages as shown by the evidence. The jury were at liberty, under the instruction, to return any amount their judgment might approve, only limited by the amount named in the complaint. The instruction, therefore, standing alone, and without reference to the other instructions, would be erroneous.
But, in another instruction, the court told the jury as follows: “If you find for the plaintiff, your verdict will be, ‘We, the jury, find for the plaintiff, Mrs. Aydelott, and assess the damages at’ so much, whatever you think the proof has shown: Instructions áre to be considered ás a whole, and when these instructions are considered together, the effect was to tell the jury that if they should find for the appellee, Mrs. Aydelott, they could find for her in any sum not exceeding the amount named in tlie complaint, as they might think the proof had shown. There was no prejudicial error, therefore, in the ruling of the court in granting the prayer for instruction on the measure of damages, in the particulars above discussed.
The instruction was furthermore objectionable in singling out the particular injuries alleged in the complaint, and telling the jury that they could find a fair and just compensation for these alleged injuries, specifying the particular parts of the body that she alleged were affected by the injury. The instruction, in this particular, should have been couched in general terms, allowing the jury to consider such injuries as appellee had sustained under the evidence, and to allow compensation therefor, but without specifying the particular part of the body alleged to have been injured. The instruction, in this form, was argumentative, but we are not convinced that it had the effect to magnify the verdict. We have called attention to this instruction in order that on a rehearing the trial court may give an instruction on the measure of damages in correct form.
(7) The court erred in its remarks to the jury during the argument of counsel for appellant. Counsel for appellant had the right, under the evidence and the instructions of the court on the issue of negligence, to say to the jury that “the railway company was not guilty of negligence. ’ ’ That was an opinion which it was the privilege of counsel to express by way of argument, and the court erred in saying to the jury at this juncture, “I will instruct the jury that the railroad company was guilty of negligence. The conductor himself says tha,t he forgot that a passenger was on there, and that he never saw the passenger at all.” The remarks of the court were tantamount to an instruction that the railroad company was guilty of negligence. This was a question, under the evidence, for the jury to determine, and the instruction thus given at this time was in direct conflict with other instructions which correctly submitted the issue of negligence for the jury’s, determination. These and the further remarks of the court in this connection, as shown in the record, constituted an improper interruption of the argument of counsel, and was a manifest encroachment upon his right and privilege to present his client’s cause to the jury. It was also an invasion upon the province of the jury, whose duty it was to consider and determine the disputed issues of fact.
The judgment, therefore, in favor of the appellee Mrs. Aydelott is reversed for this error, and the cause will be remanded for a new trial.
Appellant, E. A. Aydelott, testified that since the 11th day of last April, the day on which the injury to his wife occurred, his wife had not been physically able to assist him in any way, and her companionship had not been what it should be. Before that time she had assisted him. Since her injury, there had been a disturbance of the companionship and society between himself and wife, including all of the private and delicate relations. Appellant testified that the disturbance by the injury was one “involving the sexual relations,” “all assistance, and you might say, all pleasure was gone the way things existed.”
(8) ' The record shows that the .appellant presented the following prayer for instruction: “If you shall have found for Mrs. Aydelott, then you will consider whether her husband has, by reasgn of her injury, himself suffered injury by being deprived of her assistance, companionship and society as his wife, and for medicines and doctors for her, and, if so, you will find for E. A. Aydelott such damages as you may find he has sustained on either or all of said items, if any.” The court modified the instruction by striking therefrom the word “assistance,” and also the words ‘and for medicines and doctors for her.” And as thus modified, the court gave the instruction. The appellant excepted to the ruling of the court in refusing his prayer for instruction as offered, and in the ruling of the court in modifying and giving the same as modified. But lie did not bring bis exceptions to tbe ruling of tbe court into Ms motion for a new trial, and therefore we can not consider this alleged error in the ruling of the court.
The appellant contends that the court erred in refusing to allow him to testify to his wife’s injuries. The appellant, in the first six grounds of his motion for a new trial, assigns as error the rulings of the court in refusing to allow plaintiff to testify in regard to his wife’s injuries, the nature, extent and cause thereof. But the record does not show that appellant reserved any exceptions to the ruling of the court in refusing to allow this testimony. Therefore,, he can not complain here that the court erred in its ruling.
Appellant insists that the verdict was contrary to the evidence, contending that the jury should have found in Ms favor for doctor’s bill for more than $75, and medicines more than $25.
It is alleged in the complaint that he incurred expenses in the above sums for doctor’s bill and medicines. The answer denies these allegations, and there is no proof in the record to sustain them.
(9) Again, counsel for appellant urges that the verdict was contrary to the evidence in his favor, because the jury found that his wife was injured and returned a verdict in her favor on account of such injuries in the sum of $3,000, and from this he insists that it necessarily follows that he was injured by the loss of the society and companionship of his wife in some amount, and that the jury should have so found, and in not so finding their verdict is inconsistent.
"While appellant testified that the injuries received by his wife disturbed their marital relations, and that on account thereof she was not physically able to assist Mm in any way, and that her companionship had not been what it should be, yet the jury returned a verdict against him, thus showing that they either did not believe and accept the testimony of the appellant as to the loss of consortium, or else they found that the loss was so insignificant it had no pecuniary value. These were matters within the peculiar province of the jury and their verdict against appellant is conclusive, and the judgment based thereon is therefore affirmed.