New York, Chicago & St. Louis Railroad v. Henderson

146 N.E.2d 531, 237 Ind. 456, 1957 Ind. LEXIS 295

• Court: Indiana Supreme Court
• Decided: December 12, 1957
• Docket: 29,614
• Status: Published

Opinions

Arterburn, J.

This case comes to us on petition to transfer from the Appellate Court under §4-215, Burns’ 1946 Replacement. See New York, Chicago & St. Louis R. Co. v. Henderson (1956), 137 N. E. 2d 744, for opinion of the Appellate Court.

It is an action to recover for personal injuries alleged to have been sustained by appellee in a collision between an automobile driven by appellee and a railroad train operated by appellant. Upon a trial by jury a verdict for appellee in the amount of $12,000 was returned. Ehetorical paragraph 15 of the complaint upon which the action was based was amended to read as follows:

“15. That unknown to this plaintiff there was then a train approaching said street crossing, but that defendant negligently failed to give any adequate warning or signal of said approaching train in that defendant failed to cause the gates guarding said street crossing to be closed, and failed to cause a bell to ring or a light to flash on signal devices maintained at said crossing by defendant and defendant carelessly and negligently ran said train from the east upon its tracks without blowing a whistle, sounding a horn, ringing a bell, or without giving any signal or notice whatever of its approach and negligently and carelessly ran said train upon and against plaintiff’s said automobile.”

Errors assigned include the overruling of appellant's motion for a directed verdict at the close of the evidence and the overruling of a motion for a new trial. The specifications in the motion for a new trial attack the sufficiency of the evidence to support the verdict, the amount of damages, and certain instructions given by the court. A number of these alleged errors, we believe, may be disposed of in the consideration of the sufficiency of the evidence to support the verdict.

The evidence most favorable to the appellee tends to establish the following facts. The collision in question occurred at the intersection of Anthony Boulevard and appellant’s railroad in the City of Ft. Wayne, Indiana about noon on November 10, 1953. Appellee just prior to the accident was driving south towards the crossing. Before reaching the crossing she traversed a steel bridge about 300 feet long which spans the Maumee River and continued further about 65 feet to the railroad crossing. The appellee was familiar with the crossing, having passed over it two or three times each week during the last two-year period. At times she was detained at the crossing by approaching trains and on these occasions she heard warning signals at the crossing and from the engine, and the gates were always down and flasher signals working. At the time of the accident as she approached this crossing, the evidence favorable to the ■verdict is that no bell or whistle were sounded or warning signal of any kind given. As she looked towards the crossing, she observed that the gates were up and the flashers were inactive. She testified that while crossing and as she left the bridge she looked both ways down appellant’s tracks and did not see any approaching train. At that time she slackened her speed and she was driving about 15 to 20 miles per' hour. As she entered the crossing, the north gate, which was operated by an automatic device, came down on her car. and one of the appellant’s trains approached from the east, struck the front end of her'car and threw it around against the part supporting the crossing gate, and as a result she was injured. She was taken to the hospital for treatment of her injuries. The evidence shows three of her fingers were broken, including a fracture to the ring finger of her right hand which at the time of the trial was still stiff and painful. She could not at the time of the trial touch her thumb with her index finger. Appellee was 66 years old at the time of the accident. For 29 years she had supported her family by working in homes by cleaning, washing, ironing and doing laundry work, and for the last ten years she had earned approximately $80.00 per week. Since the accident she has been unable to do any work except with her left hand.

It will be noted that the above summary includes no facts showing directly what caused the failure of the automatic signaling devices and the gate to operate properly. This raises the question as to whether or not the jury may reasonably draw inferences of negligence from the failure of these devices to operate as they should. In other words, is the doctrine of res ipsa loquitur applicable?

Negligence, as any other fact or condition, may be proved by circumstantial evidence, and it has been urged that there is nothing distinctive about the doctrine of res ipsa loquitur, since it involves merely the permissible drawing of an inference of negligence from certain surrounding facts. This no doubt is true except that the law permits the inference of negligence to be drawn under certain sets of facts known as res ipsa loquitur. The basis or reasoning for this principle, in its origin at least, seemed to have been that the defendant had exclusive control over the injuring agency and the plaintiff normally had no access to any information about its control and operation. 3 Cooley on Torts (4th Ed.), Sec. 480, p. 369.

Frequently it is said the doctrine is applicable and negligence may be inferred “where the thing (injuring instrumentality) is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care.” Scott v. London & St. Katherine Docks Co. (1865), 3 H. & C. 596, p. 601; 159 Eng. Rep. 665, p. 667.

The leading case which established the rule of res ipsa loquitur was Byrne v. Boodle (1863), 2 H. & C. 722, 159 Eng. Reprint 299. In this case the evidence merely showed that the plaintiff was struck by a flour barrel which fell from a window above the street. Barrels do not ordinarily fall out of windows unless someone is negligent, decided the court, and the court held the plaintiff had made out a prima facie case. Since then the doctrine has been applied to train derailment eases, falling objects, surgical and dental operations and treatment resulting in unusual injuries, and failure of mechanical devices within the exclusive control of the defendant, among various other sets of facts. As complicated mechanical devices of our modern age achieve greater perfection and greater reliance upon them is justified, it follows that the doctrine has a broader application than originally.

Appellant attempts to make a distinction in cases where res ipsa loquitur applies by classifying those cases in which there is an allegation of “defective equipment” causing the injury from those cases in which there is a mere failure of the defendant to operate such equipment. There is no direct allegation of defective equipment made in the complaint. Although a vast number of cases involve defective equipment and devices, we fail to follow the reasoning of the appellant for making such a limitation. In fact, the history and the operation of the doctrine does not bear out such a contention. No device whatever was involved in the case where a flour barrel rolled out of an upper window causing an injury; and it is well settled that the doctrine applies to cases where sponges have been left in patients following operations and other like situations.

The appellant contends that it assumed the burden of going forward with the proof by offering evidence which showed that it had maintained a proper inspection and tests of the mechanical safety gate and warning devices at' the railroad crossing. The testimony on this point was that these tests were made a few hours before the collision and also immediately afterwards, and that the devices were in proper operation at the time of these inspections. Accordingly, appellant' insists the rule as set forth in Worster v. Caylor (1953), 231 Ind. 625, 110 N. E. 2d 337, is applicable and that upon such testimony and evidence offered by the appellant the doctrine of res ipsa loquitur vanishes from the case. We have examined this case and are unable to approve all that is said with reference to that principle of the law, and in particular, the following statement :

“It will be noted that the doctrine res ipsa loquitur does not prevail where the party against whom it might apply accepts the duty of going on with the proof and details the entire transaction. In such a situation the presumption, inference or doctrine ceases to exist and all questions concerning the injury must be determined from the evidence unaided by the inference or doctrine of res ipsa loquitur.” Worster v. Caylor (1953), 231 Ind. 625, 632, 110 N. E. 2d 337.

The rule stated in this case is a departure from the principle as previously followed in this state in the following cases among others: Cleveland, etc. R. Co. v. Hadley (1907), 170 Ind. 204, 40 Ind. App. 731, 82 N. E. 1025, 84 N. E. 13; The Louisville, New Albany & Chicago Ry. Co. v. Thompson, Admr. (1886), 107 Ind. 442, 8 N. E. 18, 9 N. E. 357, 57 Am. Rep. 120; The Cleveland, Columbus, Cincinnati and Indianapolis R. R. Co. v. Newell (1885), 104 Ind. 264, 3 N. E. 836, 54 Am. Rep. 312; Kickels v. Fein (1937), 104 Ind. App. 606, 10 N. E. 2d 297; Wass v. Suter (1949), 119 Ind. App. 655, 84 N. E. 2d 734.

The Worster v. Caylor case converts the doctrine from a rule of evidence to one of procedure. It would be meaningless and of no practical value since any defendant could offer some explanation, thereby taking the doctrine out of the case and forcing the jury to accept and believe the explanation of a defendant whether credible or not. Under such a rule of procedure the plaintiff’s case is placed at the mercy of the defendant.

We are not unmindful of the importance and the desirability of stable principles of law upon which litigants may rely, but where a rule announced in an opinion works an obvious injustice upon litigants and is not supported by any authority that we can find, it should be eliminated from the body of precedents of this jurisdiction.¹ •

Under the true rule of res ipsa loquitur the inference of negligence which is drawn from the facts is placed in the scales to be weighed with any and all explanations offered by the defendant. The inference of negligence or, as sometimes stated the “presumption,” does not vanish when the defendant comes forward with an explanation but on the contrary stays in the case to be considered with all other evidence by the triers of the fact. The weight to be given this inference and its relationship to all the other evidence is solely for those determining the facts.

If we treat this doctrine as giving rise to a permissible inference of negligence which may be drawn from a certain set of facts as may be done from circumstantial evidence, no confusion should result in its application in a trial.

Appellant claims that the allegations as to acts of negligence are made in the conjunctive and jointly, and therefore, the proof must show all acts concurring. We fail to find any support or reason for such a rule. It is fairly well settled that multiple acts of negligence which caused the same injury may be stated in one paragraph of complaint; and recovery may be had upon proof of any one of such acts unless it is a dependent act alleged to have concurred with another not proved and without the existence of which the accident could not have occurred. As a matter of practical pleading and convenience, it would seem to be unrealistic to require separate items of negligence each alleged to have caused the same injury to be set out separately in numerous paragraphs of complaint. Rules with reference to amending a complaint to conform with the proof would in most instances be applicable to avoid the result insisted upon by appellant. Acts 1881 (Spec. Sess.), ch. 88, §135, p. 240; 1921, ch. 115, §1, p. 277; 1941, ch. 72, §1, p. 185, being §2-1068, Burns’ 1946 Replacement; Lowe’s Works Ind. Prac., Vol. I, §13.66, p. 488.

Gavit makes the following statement:

“It has been recognized as proper also that a plaintiff may make cumulative allegations as to the same cause of action in one paragraph of pleading where the allegations are not repugnant or inconsistent. The most common example is in the negligence cases where it is recognized that the plaintiff may make any number of specific allegations as to what constituted the defendant’s negligent conduct. The accepted rule has been that a demurrer to such a complaint should be overruled if any specific allegation is sufficient.” I Gavit, Indiana Pleading and Practice, §133, p. 647.

There are cases involving the allegation of several breaches of a bond or contract or several alleged defamatory statements, in which the court has accepted the common law rule and regarded each allegation as a separate claim although contained in one paragraph. Johnnie J. Jones Expositions v. Terry (1945), 116 Ind. App. 189, 63 N. E. 2d 159; Knickerbocker Ice Co. v. Gray (1908), 165 Ind. 140, 171 Ind. 395, 84 N. E. 341; Pittsburgh, etc. R. Co. v. Lightheiser (1906), 163 Ind. 247, 168 Ind. 438, 78 N. E. 1033; The State ex rel. Sidener v. White et al. (1883), 88 Ind. 587.

Appellant further argues that if specific allegations of negligence are made in a complaint, recovery under the principles of res ipsa loquitur is excluded. The allegations in the complaint are not specific as to why the signal devices and gate did not properly operate. It alleges generally that “the defendant failed to cause the gates guarding said street crossing to be closed and failed to cause a bell to ring,” etc. These are general allegations and do not point out the detailed facts causing the defect or failure which is within the knowledge of the appellant Railroad Company.

However, Harper and James in their recent Treatise on the Law of Torts make the following clear analysis of this point:

“It has occasionally been held that a plaintiff who. pleads specific items of negligence thereby precludes himself from the benefit of res ipsa loquitur even though the proof makes out a case where it would otherwise apply. The reason given for the rule is that such a plaintiff shows he has access to the facts and therefore is not in need of a doctrine designed to aid plaintiffs who lack this access. Such a rule is generally repudiated and is altogether indefensible.

“It may (to be sure) fairly be urged that the pleadings must lay a basis for the application of the doctrine in any given case, but this rule of fairness should be administered in accordance with the liberal principles of modern pleading and not according to any rule of thumb. Thus, as we have ■ seen, the proof in a res ipsa loquitur case seldom points to a single specific act or omission. Typically, it points to several alternative explanations involving negligence (e.g., negligence in construction, maintenance, or operation) without indicating which of them is more probable than the other. In such a case the pleadings may well be required to cover the alternative explanations, so as to give fair notice to the adversary of the scope . of the case he has to meet. In practice this usually is not a very onerous requirement and can be met either by broad generality of allegations, or by listing all the specific acts or omissions to which the proof may point, or by combining general with specific allegations. And even if the pleadings fall short in this respect, free use of amendment should be allowed and the pleadings- treated as amended where defendant’s proof has been directed .to all the claimed explanations so that the matter may be treated as litigated by consent. Only in a case where' defendant has beep genuinely and justifiably misled by the pleadings so that he has actually failed to prepare a defense to a case based on the doctrine should its application be denied on the basis of the pleadings.” Harper and James, Torts, Vol. 2, §19.10, pp. 1096, 1097; 1 Gavit, Indiana Pleading & Practice, Sec. 147 (e), p. 679.

In some cases the pleader may be uncertain as to what details will develop from the evidence at the trial, particularly from the mouths of adverse witnesses. The evidence may show specifically the proximate cause and then again nothing may be shown aside from the basic facts from which the inference of negligence arises under res ipsa loquitur. Baltimore,, etc. R. Co. v. Hill, Admr. (1925), 84 Ind. App. 354, 148 N. E. 489.

Since the doctrine of res ipsa loquitur is to some extent based upon the theory, that the facts connected with the cause of the injury are unknown to the plaintiff and within the peculiar knowledge of the defendant it would also follow from the general rules of pleading that in such cases the plaintiff is not compelled to allege the specific, facts coming within the special knowledge of the defendant. Lowe’s Works Ind. Prac., Vol. I, §12.17, p. 370.

It is next argued that regardless of the allegations in the complaint if the plaintiff offers evidence of specific acts of negligence this will exclude res ipsa loquitur from the case. Such is not necessarily true since the facts still speak for themselves. Of course, if the uncontradicted evidence excludes by its very nature an inference of negligence on the part of the defendant, such as proof that “an act of God” or an intervening agency over which the defendant had no control caused the injury, there would be no liability. Leet v. Union Pac. R. R. Co. (1944), 25 Cal. 2d 605, 155 P. 2d 42, 158 A. L. R. 1008, Cert. den. 325 U. S. 866, 89 L. Ed. 1986, 65 S. Ct. 1403; Gray v. Baltimore & O. R. Co. (1928), 24 Fed. 2d 671, 59 A. L. R. 461. But such a situation in a trial would be rare, since the plaintiff would be proving himself out of court. 38 Am. Jur., Negligence, §299, p. 996; Harper & James, Law of Torts, Vol. 2, §19.10, p. 1098; Prosser, Law of Torts (2d Ed.) (1955), pp. 211 and 214.

There is no reason in law why a plaintiff may not offer such evidence as may be available tending to show specifically the items of negligence and still rely upon the inference also permitted under res ipsa loquitur. A number of different causes or inferences may be thus left to the final determination of the triers of the facts. ■

Appellant contends that the evidence shows without contradiction that appellee was guilty of contributory negligence as she approached the railroad crossing, in failing to use due care in looking and listening. In this connection reference is made to the statute requiring a person driving a vehicle to stop within 50 feet but not less than 10 feet of the railroad tracks before crossing when:

“(a) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a train.

“(b) A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a train.

“(c) A railroad train, as defined in this act, approaching within approximately one thousand five hundred [1,500] feet of a highway crossing emits a signal audible for such distance and such train, by reason of its speed or nearness to such crossing, is an immediate hazard.

“ (d) An approaching train is plainly visible and is in hazardous proximity to such crossing.” Acts 1939, ch. 48, §100, p. 289, being §47-2114, Burns’ 1952 Replacement.

The evidence here was in conflict on all these conditions, including whether or not the bridge obstructed the view of the appellee’s approach to the crossing. This left the question as to the facts making the statute applicable for the jury. Acts 1939, ch. 38, §100, p. 289, being §47-2114, Burns’ 1952 Replacement; Dommer v. Pennsylvania R. Co. (1946) (C. C. A. 7th Cir.), 156 Fed. 2d 716; New York, etc. R. Co. v. First, etc. Savings Bank (1926), 198 Ind. 376, 153 N. E. 761; Pearson v. Baltimore & Ohio R. Co. (1953), 200 Fed. 2d 569.

Judge Swaim, speaking for this court, said in Bartley v. Chicago & E. I. R. Co. (1939), 216 Ind. 512, at page 522, 24 N. E. 2d 405:

“As he approached the tracks of the appellee Railway Company the appellant had a right to assume that any train of appellee Railway Company approaching Heidelbach Avenue would give the required statutory signals by bell and whistle, warning him and other travelers on Heidelbach Avenue of the approach of such train, §55-1243, Burns’ 1933, §14557, Baldwins’ 1934. The failure of the Railway Company to give such signals not only is negligence per se on the part of the Railway Company, but is a fact which the jury may properly consider, together with other pertinent facts, in determining the question of whether appellant was guilty of contributory negligence as he approached said crossing and prior to the time he saw or could have seen the approaching train.”

Judge Achor reiterated these same principles while on the bench of the Appellate Court of this State in Gillies by next Friend v. N. Y. C. R R. Co. (1954), 124 Ind. App. 382, 116 N. E. 2d 555.

In this connection it is argued that if there exists a question of contributory negligence for the jury to determine, such a possibility of contributory negligence would exclude the doctrine of res ipsa loquitur, because under that principle, the injuring instrument must be under the exclusive control of the defendant, with no opportunity for the plaintiff’s conduct to contribute, influence, or cooperate with the factors which caused the injury. We can find no sound authority for such a limitation on the principle. It is true the doctrine as generally stated is operative where the factors causing the injury are within the control and knowledge of the defendant. This statement, so frequently made in defining the doctrine, appears to rest merely upon a rationalization of the principle sometimes stated in another way, namely, that if the plaintiff normally has no access to the information and details about the operation and control of the thing which caused the injury, then the plaintiff is not obligated to attempt to plead of prove the exact details of the alleged failure or improper operation. The law then permits the drawing of an inference of defendant’s negligence.

The mere fact of a collision between an automobile and a train at a railroad crossing, without more, raises no inference of negligence on the part of any of the parties involved. However, where it is shown that signalling devices or a safety gate at the crossing did not operate, the doctrine of res ipsa loquitur is applicable to the extent that the jury may draw a permissible inference of negligence by reason of the failure of such devices to operate properly which were under the exclusive care and control of the Railroad Company. It should be noted, however, that the drawing of such inference in itself does not fix the proximate cause of the accident, but the jury must still determine the proximate cause, even though such permissible inference of negligence is drawn. The doctrine of res ipsa loquitur is not a rule which fixes the proximate cause of an injury, but only a rule of evidence allowing a permissible inference of negligence under a certain set of facts Hunt v. Central Vermont Railway Co. (1923), 99 Conn. 657, 122 Atl. 563; 38 Am. Jur. Negligence, §298, p. 994.

There is no more reason for taking the permissible inference under res ipsa loquitur out of a case because evidence of contributory negligence is presented than there is because evidence of any explanation, or of inspection, care and maintenance is given by the defendant. Such a contrary conception would unduly restrict the fact-finding duties of a jury.

The possible existence of contributory negligence of a plaintiff does not eliminate from the case res ipsa loquitur where otherwise properly applicable, nor take from the jury the privilege of drawing an inference of negligence under such facts. The possibility of contributory negligence does not alter the fact that the safety gates, flasher signals and bells were under the exclusive control of the Railroad defendant and the appellee has no knowledge as to the cause of their failure to operate. See: Pittsburgh, etc. R. Co. v. Boughton (1924), 81 Ind. App. 129, 142 N. E. 869.

The appellant offered evidence for the purpose of proving the contributory negligence of the appellee in failing to look and listen and use due caution at the railroad crossing. The jury had the right to consider this evidence and weigh it along with the permissible inference of negligence raised by the surrounding circumstances under res ipsa loquitur. It could reject either the permissible inference of negligence to be drawn from the surrounding circumstances or reject the evidence offered by the appellant to establish the sole negligence or contributory negligence of the plain-' tiff. From the verdict rendered by the jury, we may assume that the evidence offered by the appellant in an attempt to establish the contributory negligence of appellee, did not satisfy the jury, while the permissible inference of negligence from the failure of the automatic signaling device to operate, which was under the control of the" appellant Railroad Company, was accepted and relied upon for its verdict. Jesionowski v. Boston & Maine Railroad (1946), 329 U. S. 452, 67 S. Ct. 401, 91 L. Ed. 416, 169 A. L. R. 947; Prosser, Torts (2nd Ed.), §42, p. 209.

Appellant also contends that it is not guilty of negligence by reason of the failure to sound a whistle on the locomotive because of an ordinance of the City of Fort Wayne, which reads as follows:

“Sec. 3. Blowing Whistle.

It shall be unlawful for any person running or controlling any locomotive to sound the whistle thereof or allow the same to be sounded within the corporate limits of the city, unless to prevent accidents that cannot otherwise be arrested.”

The same question raised has been presented and decided adversely to appellant’s contention in the case of Chicago, etc. R. Co. v. Lake Co. Savings, etc. Co. (1917), 186 Ind. 358, 114 N. E. 454.

From what has been said, it may be seen, we have come to the conclusion that there was sufficient evidence to support the verdict in this case. Likewise, the trial court committed no error in refusing to direct a verdict for the appellant and in giving appellee’s Instruction No. 6, which invoked the doctrine of res ipsa loquitur in this case. In the latter connection we further note that this instruction was given practically verbatim in Pittsburgh, etc. R. Co. v. Boughton (1924), 81 Ind. App. 129, 142 N. E. 869, and there approved by the Appellate Court. Wass v. Suter (1949), 119 Ind. App. 655, 84 N. E. 2d 734; Cleveland, etc. R. Co. v. Hadley (1907), 170 Ind. 204, 40 Ind. App. 731, 82 N. E. 1025, 84 N. E. 13, 16 L. R. A. (N. S.) 527.

Objection is made to Instruction No. 2, tendered by the appellee and given by the court, in which the jury was charged in fixing any damages, to “take into consideration her (appellee’s) loss of time, her pain, suffering, her mental anguish and distress, her permanent injuries if any you find to exist.” Appellant’s objection is based upon the claim that there is no evidence of mental anguish. There was no objection made on the ground that such damages were not alleged or in issue under the allegations of the complaint. Any contention appellant might make on that point is waived and we need not consider or decide that point. The case of Chicago, etc. R. Co. v. Blankenship (1926), 85 Ind. App. 332, 154 N. E. 44 cited by appellant, turns on the point that mental anguish was not alleged as special damages. We cannot find that it has ever been cited with approval.

“It is well established that in actions for personal injuries the recoverable damages may include compensation for mental suffering caused by such injuries and follows or accompanies them as a proximate consequence of the defendant’s wrongful act. A reason given for the rule is that the mind is a part of the body, and an injury to the body includes the whole, and its effects are not separable. In such cases the mental suffering is merely an aggravation of damages when it naturally ensues from the act complained of.” 15 Am. Jur. Damages, Sec. 176, pp. 593-4.

It has long been the law in this state that the triers of the facts may infer mental and physical suffering which would naturally flow from a personal injury proved. Nearly a hundred years ago this court said, in Cox v. Vanderkleed (1868), 21 Ind. 164:

“The instruction complained of is as follows: ‘In assessing damages you may consider the injuries inflicted on the plaintiff by the blow given by the defendant, the expenses incurred, loss of time and hearing, also his peace of mind and individual happiness occasioned by the injury received.’ This instruction is sustained by the case of Taber v. Hutson, 5 Ind. 322, and it seems to us to be correct in principle.”

This case has been cited with approval a number of times, one of which citations makes the following statement:

“It is well settled in Indiana that personal disfigurement or deformity, resulting from negligent injury, is a proper element to be considered in estimating damages, and such ‘anxiety and. distress of mind, as are fairly and reasonably plain consequences of the injury complained of’ are proper elements of damage.” Harrod v. Bisson (1911), 48 Ind. App. 549, 93 N. E. 1093.

In General, etc. Car Corp. v. Melville (1926), 198 Ind. 529, p. 540, 145 N. E. 890, we said:

“There was evidence that plaintiff’s left leg was crushed off and left lying in the street, that he was otherwise severely injured, that he suffered pain in his head and legs, that his right leg was not so fleshy after as before the accident and his right ankle had become crooked and still pained him at the time of the trial, and was still swollen, that he was in the hospital four weeks, that he had not worked any since the injury, and evidence of other similar facts. This evidence was sufficient to justify an instruction that the jury might consider both the mental and physical pain and suffering, if any, that plaintiff had endured from his injuries or would endure in the future, if any at all, caused by and arising out of his physical injury.”

The jury has the. right to use human experience in determining the anguish, anxiety and other suffering both physical and mental (if there is a differentiation) that naturally flows from a physical injury, disfigurement or resulting incapacity caused to a person. Such proof may be made either by direct or circumstantial evidence. It may be inferred from the nature of the appellant’s injury, her age, the necessity for her employment and resulting appearance in public and the incapacities caused by the injury. There was no error in the instruction. 2 Restatement, Torts §456; McCormick on Damages, §88, p. 316; Harness v. Steele (1902), 159 Ind. 286, 64 N. E. 875; Heddles v. The Chicago & Northwestern R. Co. (1890), 77 Wis. 228, 46 N. W. 115; Merrill v. Los Angeles Gas & Electric Co. (1910), 158 Cal. 499, 111 Pac. 534, 139 Am, St. Rep. 134, 31 L. R. A. (N. S.) 559; M. K. & T. Ry. Co. v. Miller. (1901), 25 Tex. Civ. App. 460, 61 S. W. 978.

We have examined the other instructions and objections made thereto by the appellant and we find none of the objections made are sufficiently specific to warrant their consideration on appeal. Appellant contends, however, .that although the objections at the time they were made may not have been as specific as set forth in the argument section of its brief, still the court should grant some liberality and latitude in its consideration of them because under the stress and strain of trial and the time limitations, such instructions could not be given the study necessary for discovering the claimed errors.

Erroneous instructions constitute reversible error only when they have influenced the verdict. If learned counsel are not able promptly to perceive the alleged error at the time the instructions are given to the jury, it is not likely that the jury would notice them sufficiently to be affected thereby. Courts, as well as the lawyers, are often too prone to over-emphasize the semantics in connection with instructions, and as a result, slight shadings in the meaning or context of an instruction are exaggerated far beyond the influence they may have had upon a jury.

One of the main purposes of requiring that an objection to an instruction be made before it is given to the jury, is to give the trial court an opportunity to correct any error if it exists. If this is not done promptly and specifically, the alleged error is waived on appeal. The objections as made to the instructions referred to above were not specific enough to point out to the trial court any correction or alteration therein if the error existed.

The sole remaining contention is that the verdict of $12,000 was excessive. In view of the evidence which shows the injuries incapacitating the appellee from work necessary for the support of herself, her invalid husband and two girls in the family, we cannot say that the sum is excessive.

The judgment of the trial court is affirmed.

Emmert, C. J., concurs with separate opinion.

Bobbitt, J., dissents with opinion.

Achor and Landis, JJ., concur.

1 . An examination of the authorities cited in connection with the above statement in the Worster case fails to support such a principle. Likewise the quotation taken from 38 Am. Jur., Negligence, §295, p. 989, does not accurately quote or represent the law as stated in Sweeney v. Erving (1913), 228 U. S. 233, 57 L. Ed. 815, 33 S. Ct. 416; however, 38 Am. Jur., Negligence, §298, p. 994 does say: “Res ipsa loquitur creates an inference or presumption of negligence that constitutes evidence of negligence which may not be disregarded by the jury, or court sitting without a jury, but is to be weighed and considered as against the evidence adduced by the defendant in rebuttal thereof.”