St. Louis, Iron Mountain & Southern Railway Co. v. Adams

85 S.W. 768, 74 Ark. 326, 1905 Ark. LEXIS 470

• Court: Supreme Court of Arkansas
• Decided: February 25, 1905
• Status: Published

Opinions

Battee, -J.

T. R. Adams brought this action against the St. Louis, Iron Mountain & Southern Railway Company to recover damages caused by the negligence of the defendant. He alleged in his complaint that on the 7th day of March, 1900, he was traveling from his home toward Little Rock in a wagon drawn’1 by two mules and loaded with country produce; that it was dark, about eight or nine o’clock, when he approached the crossing of the public road by the defendant’s railway; that when near the track he stopped, and looked, and listened, and, seeing no approaching train, moved on the crossing, and when his wagon was upon the track, a -train of the defendant’s, consisting of an engine and box car, the latter being in front of the engine with no light or signal on the same, suddenly came upon him, and struck his wagon, knocked it off the track, overturned it, and threw him on the ground, bruising and greatly injuring him.

The defendant answered, and denied all the allegations in the complaint, and alleged that plaintiff’s injuries were caused by his own contributory negligence.

The plaintiff recovered a judgment for $2,000, and the defendant appealed.

The evidence adduced at the trial showed that the appellee, traveling in a wagon drawn by mules, in the nighttime, about eight or nine o’clock, drove his wagon upon appellant’s railway, where it crosses the public road, upon which he was traveling, and that a train of the appellant, consisting of an engine and three or four box cars, the latter in front of the former, the engine pushing the cars, struck the wagon, overturned it, and injured the appellee. The evidence tended to show that no signals of the approach of the train were given at the time of this collision, and that no lookout for persons or animals in front of the same was kept, and no lights on the foremost car were exhibited; and that the injury received impaired his. earning capacity.

In the course of this trial appellee asked this question: “How much family have you had to support?” to which appellant objected; its objection was overruled; and it excepted. He, appellee, being the witness, answered: “From ten to twelve. I have had twelve children.” He was further asked: “How much help did you have from those children in making crops?” He answered, “I haven’t had a great deal until this year. I have a boy 16 years old, and this boy I have here — they are all the boys I have big enough.” The question and answer as to size of his family and the number of his children were inadmissible and prejudicial. This evidence did not tend to show an increase of his earning capacity, but of his expenses. As to this evidence,we say, as the court said of similar evidence in Pennsylvania Company v. Roy, 102 U. S. 451, 460: “The manifest object of its introduction was to inform the jury that the plaintiff had infant children dependent upon him for support, and, consequently, that his injuries involved the comfort of his family. This proof, in connection with the impairment of his ability to earn money, was well calculated to arouse the sympathies of the jury, and to enhance the damages beyond the amount which the law permitted; that is, beyond what was, under all the circumstances, a fair and just compensation to the person suing for the injuries received by him. How far the assessment of damages was controlled by this evidence as to the plaintiff’s family it is impossible to determine with absolute certainty; but the reasonable presumption is that it had some ■ influence upon the verdict.” And we add, whatever may have been the object of its introduction, the effect was the same, and prejudicial. See also Kreuziger v. Chicago & N. W. Ry. Co. (Wis.), 40 N. W. Rep. 657, 659, and cases cited.

Opinion delivered March 18, 1905.

As the judgment will be reversed, we make no comment upon the sufficiency of the evidence. The opinion heretofore delivered in this case is hereby withdrawn.

Reversed and remanded for a new trial.