St. Louis, Iron Mountain & Southern Railway Co. v. Brown , 100 Ark. 107 ( 1911 )

Kirby, J.,

(after stating the facts). It is contended first that the court erred in permitting A. H. Brown, father of the plaintiff, to testify that plaintiff'was not properly cared for and treated at the railway hospital. This witness stated that, after his son, Claude, was brought to St. Vincent's Infirmary at Little Rock, he and another son stayed with him all the time, and continued:

Q. “How did they treat him down there at that hospital?”

A. “How did they treat him? I didn’t think they were treating him right. I took him to my little cabin because, if I thought they were, I would not have taken him to my little cabin at Russellville.”

Counsel objected to the question and answer, and it was withdrawn.

The court was then asked by appellant to exclude it from the consideration of the jury, which it did, by saying: “The question and. answer will not be considered, as it is withdrawn.”

Q. “What was the cause of his pain and suffering-down there at the hospital?”

A. “Well, I taken for granted first what the Sisters told me. Caused a great deal —:-”

Q. “Not what the Sisters told you, from what you can say on your own knowledge?

A. “ I saw he was not taken care of. ”

Counsel for defendant: “I object to that.”

The court did not rule upon the objection, and the question was repeated as follows:

Q. “ What was his condition; tell the jury the condition of the boy, what condition they allowed-him to get in there at the hospital, and what was the result and effect of that condition? ”

A. “Well, he laid there on one side for 24 or 30 and even 35 hours — a day and two nights. That is only what he told me — that he had laid there.”

Counsel for defendant interposed: “I object to that because-”

Before the objection was finished, this question followed: “Tell him what you said?”

A. “I saw him a laying there-”

Counsel for defendant: “We want to object to that. What does your honor rule on it? ”

The court: “He can answer that.”

Q. “Tell his condition during the time he was at the infirmary, and at the time you removed him?”

A. “I would go there in the morning and stay with him that day, and they would let him lay there until the next evening without ever being dressed — 24 hours — and he seemed to be in a great deal of pain and misery, with pains shooting down into his hips and thighs.”

After other questions and answers and objections, the court said:

“I have been thinking that since that question arose, it would be prpper to show what pain and suffering there was from the injury, but there is no allegation that he suffered pain by reason of being neglected. I am inclined to think that that would be improper. The court will hold that the plaintiff can show pain and suffering as a direct result of the injury, but, as there is no allegation in the complaint of any neglect by the employees which had him in charge, it will be improper to show any pain and suffering caused by neglect, if any.”

By the counsel for defendant:

“What is the ruling of your honor with reference to the testimony?”

The Court: “I thought that was withdrawn as to-except as to the last one. That was my understanding.

Counsel for defendant:

“Since your Honor last ruled, there have been severalquestions asked.”

By the Court:

“This witness can testify as to what he saw and what he knows as to the condition of plaintiff, and as to the amount of the pain and suffering endured by him, without giving the cause of it as stated.”

Counsel then asked the court to exclude from the consideration of the jury all the testimony of this witness relating to the condition of the plaintiff, or his pain and suffering arising from any treatment he may have received after being carried to the hospital.

By the Court: “That will be granted. Gentlemen, you will not consider any question or any evidence of this witness relating to any lack of proper treatment while he was in the hospital at Little Rock.”

The testimony tended to show neglect of the appellee at appellant’s hospital by its attendants and employees, was not competent, and should not have been introduced, but some of it was withdrawn, and the court finally directed the jury not to consider any of it.

“The general rule asserted by many courts is that an error in suffering incompetent evidence to go to the jury over objection may be cured by effective withdrawal of the incompetent evidence. The rule is one, as it seems to us, to be applied with scrupulous care. The rule, as it is sometimes applied, works injustice. The mere withdrawal- of evidence does not always efface or remove the effect it has produced. The impression produced by evidence once heard is not easily eradicated. The removal of an impression from the minds of men is not very unlike the removal of writing from paper or parchment; despite earnest efforts to remove it, traces are likely to remain. Whether withdrawal of incompetent evidence does or does not cure the error must depend in a great measure upon the character and influence of the evidence. There may be cases where the character of the evidence is such that a mere withdrawal, without specific instructions or directions, is sufficient to heal the error; but in many cases the withdrawal should be accompanied by clear and explicit instructions to disregard the evidence entirely and absolutely.” Elliott on Appellate Procedure, § 700.

To this rule however there are exceptions, as stated by the same author: “If the case is one in which it clearly appears that an instruction did not remove the effect of powerful evidence, the case must, we believe, be regarded as an exception to the general rule.” Section 702. This last is quoted with approval in Rogers v. State, 60 Ark. 76.

Since the negligence complained of in this case was that of appellant in starting its engine forward before the signal to do so was given by appellee, thereby throwing him from the engine and causing the injury, this testimony was not prejudicial, and could not have caused the jury to find against appellant on the question at issue, even if it. be considered that its withdrawal and direction by the court to disregard and not consider it did not cure the error, as it usually does. It will be considered however under the question of excessiveness of the verdict, since at most it could have had no injurious effect as against appellant, but to arouse sympathy or excite the prejudice of the jury against it in its award of damages.

It is contended next that error was committed in the giving of appellee’s instruction No. 1, which reads: “If the plaintiff was in the performance of his duty in the employ of the defendant riding on one of its engines, engaged in making a flying switch and using due care for his own safety, and had not assumed the risk, and was injured by want of ordinary care of the engineer of the defendant in charge of said engine, as set forth in the complaint, thereby throwing plaintiff from engine and injuring him, the defendant would be liable. It is for the jury to say from the evidence whether the plaintiff was in the line of his duty in the employ of the defendant when he was riding on the engine at the time of injury; and also it is for you to say from the evidence whether plaintiff was exercising due care for his own safety, or had assumed the risk; also whether defendant through its engineer failed to exercise ordinary care in the movements of the engine, as charged in the complaint, and as to whether* such want df ordinary' care on the part of the engineer, if so shown, was the proximate cause of the injury.”

■ It is insisted that this instruction attempts to tell the jury all the elements and issues upon which they must pass before they can find for the plaintiff, and that it is erroneous because it ignored the defense in the case of contributory negligence, in effect directing the jury that they might find a verdict without regard to the contention of defendant that plaintiff was guilty of contributory negligence in riding on the footboard of the pilot, instead of upon the corner of the car.

The question whether Brown was guilty of contributory negligence in riding upon the engine instead of the corner of the car, which some witnesses testified was the safer place for that purpose, was one to be determined by the jury under proper instructions from the court, and this instruction told them that he could not recover, even if the defendant was negligent, as charged, unless he was in the performance of his duty in the defendant’s employ, riding upon one of its engines, engaged in making a flying switch and using due care for his own safety, and he could not have been guilty of contributory negligence if he was in the exercise of due care while engaged in making the flying switch. He was as much engaged in making the flying switch in boarding the pilot of the engine and standing there for that purpose or in clinging to the corner of the ear, if he had done so, as while he was attempting to make the uncoupling, for it was necessary to ride at one or the other of these places in order to make it; and, since the instruction required him to be in the exercise of due care while making it, it is not open to the objection; and, besides, a specific instruction was given for the defendant, submitting this point to the jury, which in no way conflicted with said instruction.

Under its instruction No. 5, given, the jury were told that if he was a brakeman, “and while engaged in making a running switch was riding upon the pilot of the engine, and undertook to uncouple from the engine a car which was being switched, and that a person of ordinarily reasonable prudence and caution similarly engaged would not have ridden on the pilot of the engine and in the position which plaintiff had assumed, then you are instructed the railway company is not liable for his injury,” and the jury were directed to find for the defendant, even though they might find the engineer operating the engine was negligent in starting it forward or increasing the speed before he received a signal to do so.

“ It is generally impossible to state all the law in the case in one instruction; and if the various instructions separately present every phase of it as a harmonious whole, there is no error in each instruction failing to carry qualifications which are explained in others.’! St. Louis S. W. Ry. Co. v. Graham, 83 Ark. 61; Louisiana & A. Ry. Co. v. Ratcliffe, 88 Ark. 524; St. Louis, I. M. & S. Ry. Co. v. Day, 86 Ark. 104.

“An instruction is not objectionable as ignoring proof tending to establish defendant’s theory of the case, if that theory is sufficiently presented in another instruction.” St. Louis, I. M. & S. Ry. Co. v. Baker, 67 Ark. 531; Louisiana & A. Ry. Co. v. Ratcliffe, supra; Southern Cotton Oil Co. v. Spotts, 77 Ark. 462.

The second instruction given for plaintiff was objected to for the same cause, it being claimed that the contributory negligence of the defendant was limited by its terms — “if the plaintiff at the time was in the performance of his duty, and exercising ordinary care for his own safety,” — to the action of plaintiff after he assumed his position on the pilot of the engine, and excluded the idea from the jury that he might have been guilty of such negligence in taking his place there, instead of upon the corner of the car. This contention is without merit, however, and has already been answered in answering the objection to instruction No. 1. Neither do we regard its objection that instruction No. 4 given for the plaintiff assumes that the defendant was negligent or permits the jury to take that fact for granted.

In instruction No. 5, objected to, the expression “while engaged in making a flying switch” was used, and it is insisted, as in objection to instruction No. 1, that such expression limits the jury to the conduct of plaintiff after he boarded the pilot of the engine. We do not agree with this contention for the reasons already given in answer thereto.

In instruction No. 7, relative to burden of proof, the court told the jury: “The burden of proof is on plaintiff to establish his case by a preponderance of evidence to entitle him to recover, and the burden is on defendant to establish contributory negligence on the part of plaintiff by the preponderance of the evidence in the whole case, in order tó prevent a recovery for that reason, etc.”

The meaning of this instruction is not as clear as it could have been made, but we do not think error was committed in giving it. Contributory negligence is an' affirmative defense, and the burden is upon the defendant to prove it, and it is usual to say in this connection: “Unless it is shown by the testimony of the plaintiff;” and since it is usual to express it in this way, it had been better if the instruction had so expressed it, but it does tell the jury that the burden is on the defendant to establish it “by the preponderance of the evidence in the whole case in order to prevent a recovery for that reason.” This only means to tell the jury that, for that defense to avail, it must be proved by the preponderance of testimony, and that all the evidence in the case, both for plaiptiff and defendant, tending to show it may be considered for that purpose. In other words, the burden is upon the party alleging it — the defendant — to prove it, but this burden may be discharged as well by the testimony of the plaintiff, if it shows it, as by the testimony introduced by the defendant, and we hold that no prejudicial error was committed in the giving of said instruction.

It is next strongly urged that the court erred in refusing to give appellant’s requested instruction No. 10, and modifying it and giving it as amended. It reads:

“10. If you believe from the evidence that plaintiff lost his hold or balance on the pilot of the engine, or that his foot slipped off by reason of his failure to take precaution for his safety, which an ordinary prudent person similarly engaged would have done under like circumstances, then the railway company is not responsible for his injury, and your verdict should be for defendant.”

This instruction was right, and should have been given without modification, but the amendment inserted by the court only tended to neutralize the effect of it; and if it had made it erroneous, no objection was made to the giving of it as amended, nor exception saved thereto. There was the statement of the engineer that the plaintiff said when he first reached him after the injury, in explanation of it, that he slipped or fell off, and by the firepian, that he didn’t know how it happened; bnt the chief question’ in the case was whether or not plaintiff was injured by the engine being started without any signal given by him to start it, causing the injury, and it was sufficiently covered by other instructions; and the instructions, as a whole, submitted this question fairly to the jury, and also the question as to whether he was guilty of contributory negligence in riding upon the pilot of the engine or at all while making the flying switch, and they found in favor of the plaintiff upon conflicting testimony.

The remarks of counsel in the closing argument are also assigned as error.

The attorney of appellee in the closing argument said: “ But you know they get in a hurry. They want to get through. They have got to get through. They work all day and night. The law tries to limit them to 16 hours, but many a day they do and are required to work 24 hours. Sometimes they go to sleep. Sometimes they go off duty.”

Objection being made, he said: “T am arguing why Parker was negligent, your Honor. If objected to, I will withdraw it; I know in this particular case they hadn’t worked over 16 hours.” The court said thereupon:' “It’s withdrawn,” without any further direction or remonstrance.

In the further argument, although there was no testimony in the case relating to appellee’s mother, he said: “Today she (referring to Claude Brown’s mother) is hanging over that bedside. Here’s the mother waiting with bated breath to hear what you say about her b<5y. She ought in justice to have her boy. She says: ‘Bring me back my boy; bring him back to me in strength and young nlanhood; restore him to me if you can. Bring him back in his condition that he was in on the first day of January, 1910. Bring him back to me, oh, bring him back to me. Take back your gold; take back your money; give me my boy whole.”

Objection was interposed. It was stated that appellee’s mother was dead, and counsel then said: “Dead? Is she dead? I didn’t know it. Then, gentlemen, she is in heaven watching the trial in this cause.” There was no exception reserved to these remarks.

The statement of counsel relative to the employees working overtime was improper and unwarranted, but, upon objection made, it was immediately withdrawn by the attorney, who stated at the time that he knew in this particular case the employees had not worked over sixteen hours. The court also told the jury it was withdrawn, and no mention whatever was made thereafter of it, and the error committed in the making of the argument was thus effectively cured. The further argument relative to the solicitude of the boy’s mother in heaven about what the jury would say of him cannot be complained of, since no exception was saved to it.

It is last urged that the verdict for $50,000 damages is so excessive as “appearing to have been given under the influence of passion or prejudice,” and that the court erred in not granting a new trial on that account, and insisted that this eotirt should reverse the cause for that reason. The verdict is the largest awarded by any jury for damages for personal injury within this State. The injury was most grievous one, not only incapacitating appellee from hoping to do any further work, but-rendering him absolutely helpless, his lower body being paralyzed, dead in effect, offensive, loathsome. He suffered pain and was without hope of recovery, all agreeing the injury was fatal, and that he could not live more than six or seven years, and might not live more than one.

He was 22 years of age, bright and capable, had been but a short while in the company’s service, and was earning at the time of the injury about $100 per month. Estimating his damage for the loss of time and earning capacity at that amount for the full time of his life expectancy, the total sum would not be more than $17,000. The proof showed another $1,000 say, for medical attention, medicines, bandages, etc. There was a possibility of promotion, with an increase of earning capacity, but the estimate does not take into consideration the possibility of loss of time and money by sickness, loss of position and decreased physical force with increasing years and old age.

The amount above the foregoing, $18,000, was given by the jury evidently to compensate for the pain and suffering of appellee since the injury until death should bring surcease. The verdict is clearly excessive, and the incompetent testimony of the father tending to show gross neglect of him by the hospital physicians and attendants, notwithstanding it was withdrawn and the jury directed to disregard it, may have influenced them in fixing the amount of damages.

In St. Louis, I. M. & S. Ry. Co. v. Webster, 99 Ark. 265, the injured person was 35 years old at the time of the injury, in perfect health and free from bodily ailments or defects, had been in the railway service as a brakeman and conductor about 13 years, was working for defendant and had been only a short time, and earning $79 per month. The fall from a car caused a curvature of the spine, the whole body bending over towards the left side, bulging out on the right side, so that it was impossible for him to stoop or bend downward and pick up anything from the floor or ground. It resulted in the loss of his sexual power. He suffered great pain all the time and was unable to perform labor of any kind, was permanently injured and compelled to go through life, which would probably not be shortened because of the injury, a suffering, crooked, misshapen wreck, full of pain and without hope of a cure or permanent relief therefrom. The jury allowed.$35,000 damages, and the court permitted it to stand, saying: “While the amount of the verdict seems to reach the limit, we cannot say that it is excessive. A man’s life is permanantly wrecked, physically and otherwise.”

The amount of the verdict in this case, beyond a reasonable and proper estimate for compensation for loss of time and earning capacity, indicates that the said incompetent testimony that was admitted and but mildly withdrawn by the court, without any remonstrance with or rebuke of counsel for persisting in its introduction, doubtless had effect to arouse the sympathy of the jury and cause the award of excessive damages.

The cause will not be reversed, however, because of the excessive damages appearing to have been given under said influence on that account, since the liability to compensate appellee for the injury sustained is established without reversible or prejudicial error, but a remittitur will be required.

In fixing the amount that appellee will be permitted to recover, the court will not be careful to see that it shall be sufficient to compensate for the injury sustained, but rather that the amount required to be remitted shall be large enough to strip the verdict of the jury of any prejudicial elements, giving appellant the benefit of reasonable probabilities in respect to the amount of the recovery, and reduce the judgment to an amount clearly regarded as not excessive, in accordance with the views announced in St. Louis, I. M. & S. Ry. Co. v. Adams, 74 Ark. 326. See also Sutherland on Damages, § 460; Baxter v. Chicago & Northwestern Ry. Co., 80 N. W. (Wis.) 644; Trow v. White Bear, 80 N.W. (Minn.) 1117. Even this is a matter most difficult to determine.

There is no method for exactly estimating the effect of prejudicial testimony on the human mind, and correctly discerning a definite amount by which the verdict of a jury may be said to have been increased, on account of its effect. Neither is there a market where pain and suffering are bought and sold, nor any standard by which compensation for it may be definitely ascertained, or the amount actually endured determined. The same injury might produce more pain and suffering in a person of highly nervous organization than in one of more phlegmatic temperament.

The court, having in mind the condition met and the result of the possible prejudice to be eradicated, and also regard for all the elements that may properly enter into the amount of damages for an injury of this kind, as well as the time that the injured person may be required to endure the pain and suffering, which time in fact has been much reduced below the maximum estimate of the physicians, the appellee having died, and this cause been revived in the name of his administrator, has concluded that the amount of the judgment must be reduced to $25,000, to prevent the damages being excessive. The injury in this case and the resultant effects were as serious as could be inflicted upon a person in like condition with appellee, but they were not as great and could not produce so much suffering as in the Webster case already alluded to, where the span of life of the injured man was not shortened by the infliction of the injury upon him as here.

If a remittitur is entered reducing the judgment to $25,000 within fifteen days, it will be permitted to stand; otherwise the judgment will be reversed, and the cause remanded for a new trial.