St. Louis, Iron Mountain & Southern Railway Co. v. Boyles , 78 Ark. 374 ( 1906 )

Wood, J.,

(after stating the facts.) 1. Appellant in its brief contends that evidence of a conversation between the conductor and the engineer before the train started out in which the conductor asked the engineer “if he was not drunk,” and the engineer’s reply thereto, and of the appearance of the engineer, that “he seemed excited,” was improper and. prejudicial. The appellant does not abstract the evidence at all bearing upon the question of whether or not the conductor was negligent in allowing the engineer to start up and move the train and engine without first adjusting the switch so a£ to let the construction train on to the main line. This was the gravamen of the charge as to the negligence of the company. Without this, even if the above testimony were irrelevant or incompetent, it would be impossible for us to say whether or not it was prejudicial. Because, if the uncontradicted proof should show that the appellant’s conductor was negligent in the manner charged, it would be wholly- immaterial whether the engineer was drunk or sober just before the train started to pull out. The objection therefore could not avail appellant on the abstract he makes, and for the further reason that there is no reference to the motion for new trial in appellant’s abstract, without which it is impossible for us, without “exploring the transcript,” to determine whether his exception to the court’s ruling was preserved. Appellant’s objection to this testimony, therefore, could not avail here. But appellee has not seen proper to object to appellant’s abstract, and ask for an affirmance for defects therein. On the contrary, he has set out a full abstract of the testimony from his standpoint on the question of appellant’s negligence. From this, it appears, quoting from the language of one of the witnesses, that “it was the duty of the conductor to look after the condition and position of the switches. It is the duty of the conductor to see that the switches are thrown and properly adjusted with the main line before starting out of the. side track. The engineer has control of the fireman and brakeman around the engine pertaining to the company’s property and safety of the train. The fireman is subject to the command of the engineer. The engineer has control of the head brakeman when he is on the engine. This flagman or head brakeman is compelled to obey the orders of the engineer.” This testimony is undisputed, and appellant does not deny that a failure on the part of the conductor to perform that duty would be negligence. Conceding, therefore, without deciding, that the testimony of what the conductor asked the engineer about his being drunk, and the appearance of the engineer, was irrelevant and incompetent, it did not go to the question of the negligence of the conductor in failing to throw the switch, and could not have been prejudicial. If the proximate cause of the injury was the negligence of the conductor in failing to see that the switch was thrown before starting the train out of the side track, and this was conclusively established, then it was wholly immaterial whether the engineer was drunk or sober, and the testimony could not have been prejudicial.

2. The same may be said of the remarks of counsel for appellee in his opening statement to the jury, which were as follows : “I have an idea that the whole crew was drunk and drinking. They had been to Van Burén the night before, and it is reasonable to suppose that they laid in a supply of whisky.”

3. Appellant presents in its abstract testimony tending to prove that it was a “very common thing” for engines to approach switches and continue their movements, and for brakemen to run ahead and throw the switch, while the train continued to move, and that such had been the custom on this train, and that, such was attempted by a brakeman on this train when the injury occurred, but that the attempt failed because the “switch point hung, and it raised the flange, and the engine, tender, and one pair of trucks of the ledgerwood, backed off the end of the rail.”

On this testimony appellant asked the following: “If you find that it was known to plaintiff that in leaving side tracks it was common for engines to not stop, but to slow down before reaching switches, and for a brakeman or other employee to jump from engine or tender, and run ahead and open the switch while the engine moved ahead, and with this knowledge, without protest, plaintiff continued to work with a crew known to him to so act, then the court tells you that plaintiff assumed the risk of accidents and injury from such movement of trains in leaving side tracks; and if he was injured by reason of such movement being pursued, then you will find for the defendant.”

Appellant’s counsel say in their brief that “the court refused to give this instruction. Defendant excepted, and the court gave no other instruction presenting this theory of the case to the jury.” Here again the abstract is so fatally defective that it is impossible for us without going through- the transcript to determine whether the court erred in refusing this request. We do not know whether appellant preserved its exceptions to the court’s ruling on this instruction in the motion for new trial.

Moreover, appellant has failed to abstract the other instructions given by the court. True, its counsel say that no other was given presenting this theory, and as they are able and truthful attorneys, they are doubtless correct. Such, at least, is their opinion. But the court might differ with them, and must determine the correctness or incorrectness of the contention of counsel from the record, and, under the rules, must have an abstract of it to see whether there is error. Chief Justice Cocicrirr, speaking along this line, said: “The appellant argues that the court erred in refusing to charge the jury as requested by him, but his exception on that score has not impressed him as being serious enough to require him to point out the error by setting out the prayers in his abstract in accordance with the rules. We therefore take it as a waiver of the objection.” Koch v. Kimberling, 55 Ark. 547; Carpenter v. Hammer, 75 Ark. 347; Jacks v. Reeves, post, p. 426. See also on sufficiency of abstracts, Neal v. Brandon, 74 Ark. 321; and Shorter University v. Franklin, 75 Ark. 571.

This disposes of the objection to the ruling of the court in refusing other prayers asked by appellant. But, aside from this, the uncontradicted proof in the record from the abstract as presented by appellee shows that the proximate cause of appellee’s injury was the failure upon the part of the conductor to see that the switch was thrown. This was a duty devolving upon the master, and the servant did not assume the risk incident to the negligence of the master in failing to perform that duty. In this view there was no error in refusing requests for instructions set out in appellant’s brief.

4. The court gave at the request of appellee the following:

“Should your verdict be for the plaintiff, then you should assess his damages at such a reasonable sum of money as you believe from the evidence will fully compensate him for the damages he has sustained, if any, and in determining this amount you may take into consideration his loss of time, if any, from his ordinary and usual avocation, his diminished capacity, if any, to work and earn money at his usual and ordinary avocation in the future, and the amount of money, if any, he has laid out and expended for services of a physician, and in buying medicine, if any, in procuring or attempting to effect a cure of said injuries, if any, the mental and physical pain he has, or may have to endure, if any; but in no event should your verdict be for more than $2,000, the amount sued for.”

We, might dispose of the objection of the counsel to the giving of this instruction as we have the others, for it appears from brief of counsel for appellee that the language set out in brief for appellant is only an excerpt from an instruction. But, as counsel for appellee have abstracted enough of the instruction to make the ruling of the court below clear, we will proceed to pass upon it. Treating appellant’s objection to the ruling of the court in giving this request as having been preserved in a motion for new trial, we see no error in that part of the instruction to which objection is urged here, towit: “And in no event should your verdict be for more than $2,000, the amount sued for.”

In Fordyce v. Nix, 58 Ark. 140, this court said: “The trial court should not have told the jury, however, that, if the conduct of appellants was willful, etc., they may allow him additional vindictive or punitive damages, not exceeding the amount sued for,” the objection being to the words, ‘not exceeding the amount sued for.’ ” Learned counsel for appellant urge this as! authority for their position that the court erred in giving the instruction containing the language pointed out supra. An examination of that case -will discover that it is not in conflict with the instruction given by the court in this case. In that case the jury were not directed to base their verdict upon the evidence. There were no limitations and no directions except that it was their province to find an amount not exceeding the amount laid in the complaint, regardless of whether the amount laid in the complaint was reasonable or unreasonable and “commensurate with the wrong done as shown by the evidence adduced.” In the present case the instruction duly circumscribed the jury within the limits of reason, and directed that their findings should be based on the evidence. Moreover, the instruction in Fordyce v. Nix was held not to be prejudicial, because the verdict was shown not to be excessive, the jury having found for less by $1,500 than the amount claimed, which finding was amply sustained by the proof. So here.

Affirm.