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

110 S.W. 220, 86 Ark. 104, 1908 Ark. LEXIS 376

• Court: Supreme Court of Arkansas
• Decided: April 27, 1908
• Status: Published

Opinion

Hill, C. J.

William Day, who was suffering from partial paralysis, started from Menlo, Ga., to Conway, Ark., where he was going to reside with his brother, a resident of that place. His paralysis prevented him from being able to walk, and so seriously affected his vocal organs that he was unable to talk intelligibly, and his mind was more or less affected by the disease. There is some difference of opinion as to the extent of his power of speech and mental' faculties; but that both were manifestly impaired, and that both of these infirmities were apparent, is fairly deducible from the evidence.

His friends provided'his ticket, and assisted him on the train, and pinned upon the lapel of his coat a letter to the conductors and station masters, stating his destination and route, and explaining his condition and asking them to assist him on boarding the right trains and in transferring. This letter was upon his coat at all times in plain sight.

He was carried beyond Conway to Menifee, and walked back from there towards Conway, but fell in a mud hole, and remained there several hours until rescued by some negroes and then carried to the home of his brother. He sued the railroad company for injuries received from being put off the train, and consequent suffering and injuries in attempting to get back to Conway, and recovered judgment for $1,500, and the railroad company has appealed.

The first question' presented is the amount of damages; it is claimed that they are excessive. There was testimony tending to prove he was roughly and brutally put off the car, that he was seriously bruised, and that he must have suffered intensely by lying in a mud hole on a cold day. In consequence of this exposure, he had fever and was sick in bed for two months. If the appellant’s testimony was true, and the jury has accepted it — and, in fact, there is .no contradiction of his suffering and sickness — the verdict is not excessive.

It is next urged that the appellee was-not entitled to recover for damages from the cold, rain, mud, physical fatigue, etc., which resulted from his attempt to walk back to Conway. Appellant’s argument is that, if he was conscious of his condition, and knew what he was doing, he could not recover for damages resulting from his effort to walk back to Conway, and he seeks to bring the case within the principle of Jewell v. St. Louis, I. M. & S. Ry. Co., 82 Ark. 598. But the court, in the 19th instruction, told the jury that “if the plaintiff knew his condition, and understood whence he came and where he was going, then, he cannot recover any damages for what occurred after he was put off at Menifee, and started to walk down the track.” There is sufficient evidence that his mental condition was such that he did not understand whence he came and where lie was going, and there is some testimony that he did understand the situation. The appellant was entitled to have this conflict submitted to the jury, which was fairly done in this instruction, and, the finding being against it, it is concluded on this issue.

The court further told the jury that, if the conductor told Mr. Day that if he would remain on the train until he got to Plummerville, he would arrange for him to be returned from there, and that he left the train voluntarily at Menifee, then the plaintiff could not recover on account of any thing that occurred at the time and after he left the train at Menifee. Appellant asked this instruction without the word “voluntarily” qualifying his leaving the train, and the court inserted it. The court was right in this modification. There was substantial testimony, not only that Mr. Day did not have the mental capacity to know what he was doing, but that he was forcibly and brutally ejected from the train.

The next point raised is that the court refused to permit appellant’s counsel to -continue the -cross-examination of a witness. As has been often said, reversible error is not predicated upon conduct of the court in terminating a cross-examination unless there is some arbitrary abuse of sound judicial discretion shown. None is discovered here. See Richardson v. State, 80 Ark. 201; Treakle v. Vaughan, 83 Ark. 258.

The next point raised is as -to the refusal of the court to strike out parts of an answer to questions in depositions. The court fails to find merit in the objection.

The next question raised is as to instruction number 3, given by the court, which will be set out in a footnote.

* The appellant has not complied with the rules of court in making the abstract; and if it had not been that the appellee set out the omitted instructions and modified instructions, the court would have been unable to have understood the instructions, and would have disregarded objections to them under the settled practice in this regard. .But, as the instructions have been set out by the appellee, and have been considered, the court prefers disposing of them on their merits. The instruction in question is correct, except the last paragraph, and in accord with Price v. St. Louis, I. M. & S. Ry. Co., 75 Ark. 479. The last paragraph, chat if, “on account of the infirm physical condition of the plaintiff, he wandered away from Menifee unattended, and by reason of his physical infirmity was thereby injured,” etc., contains a mere misuse of the word “physical” for “mental.” It is meaningless to ascribe the wandering back to Conway to a physical infirmity, and sensible jurors, taking it as a whole and in connection with the other instructions, could not possibly be misled.

The court is of the opinion that the case was fairly tried, and there is substantial evidence to sustain the verdict.

The judgment is affirmed.

Instruction No. 3 given by the court was as follows: “If you believe from the evidence that the plaintiff was a passenger on the defendant’s train from Little' Rock to Conway, and that, at the time, the plaintiff was physically incapacitated to take care of himself, and that the defendant received and accepted him as such passenger, knowing or having been notified of his said infirm condition, or by same being apparent, and -unattended, and the plaintiff, on account of his infirm condition, was carried by his destination, Conway, and to the station of Menifee, and that at' the station of Menifee he was told to get off, or put off the train at that station, by the conductor, and that defendant, knowing the physical infirmities of plaintiff, or being notified thereof, did not use due care in putting the plaintiff in some person’s care at Menifee, and that, on account of the infirm physical condition of the plaintiff, he wandered away from Menifee, unattended, and by reason of his physical infirmity was thereby injured, then the' defendant is liable for a fair compensation for whatever damage and injury may have resulted therefrom.” (Rep.)