St. Louis, Iron Mountain & Southern Railway Co. v. Aiken , 100 Ark. 437 ( 1911 )

McCulloch, C. J.

The plaintiff, W. T. Aiken, while working for defendant railway company, was run over by an engine; and both legs were cut off. He was 17 years old at the time, and sues the company to recover compensation for said injury, alleging that the same was feaused by negligence of the engine hostler who had charge of the engine at the time. He recovered judgment below for.damages in an amount which is not claimed to be excessive, and the defendant has appealed.

Plaintiff was working as assistant, or herder, as the position is termed, to the hostler. He had been working for the company about two months, first as engine wiper and boiler washer, and then as herder for ten days before his injury occurred, working at night from 7 o’clock P. M. to 7 o’clock A. M. His duties were to assist in taking engines to and from the roundhouse, and to coal and water them, to take incoming engines to the .cinder pit and knock the fires and then take them to the roundhouse. He testified that it was his duty to ride moving engines in the yards, on the pilot when headed forward and on the stirrup on the engineer’s side of the rear end of the tender when moving backward, in order to throw switches and to signal the hostler when to start or stop. On the occasion in question the engine was on the cinder pit, and plaintiff, after assisting in knocking the fire, examined the sand box on top of the engine, and then blew the whistle for the hostler, who was in the roundhouse, to come and move the engine. • When the hostler mounted the engine, plaintiff remarked to him that the engine needed no sand, and got down from the engine on the fireman’s side, and started back to the rear of the tender. The hostler and another witness testified that plaintiff said: “We don’t need any sand; let’s put her in,” meaning to start for the roundhouse; but plaintiff denied that he said: “Let’s put her in,” or anything else except that the engine didn’t need sand. Plaintiff started around the end of the tender to ride the stirrup on the hostler’s side, placing one foot on a rod over the pit which binds the rails together and holding with one hand to a rod on the tender and a lantern in the other hand, when the hostler moved the engine backward without signal or warning, striking plaintiff, knocking him down, cutting both legs off and his body rolled into the pit, whence it was rescued after his screams attracted attention.

Defendant denied in its answer that the hostler was negligent, and also pleaded that the injury resulted from plaintiff’s own negligence in attempting to pass across the pit behind the tender of the engine.

It is earnestly insisted that the testimony is not sufficient to support the finding of the jury on either of those issues. We conclude, however, that the testimony is sufficient. The testimony of the plaintiff himself, which we must treat as having been accepted by the jury as true, shows that it was customary for the hostler to await a signal from the plaintiff before moving the engine, and that no signal was given; that it was the rule for the hostler to sound an alarm, by bell or whistle, before moving the engine, and that this was not done; and that plaintiff did not say to the hostler: “Let’s put her in, ” or give him any other signal or intimation to move. There is much in the testimony of defendant’s witnesses to contradict the plaintiff’s ■statement of the facts, and much to corroborate him. ’ They stated that the rule was for the hostler to sound a bell or whistle before moving, and that that was not done. Some of them testified that it was the duty of the herder to ride on the rear of the tender with a lantern when moving backward so as to ■display a light and to signal the hostler. The testimony is •sufficient to show that the hostler violated his duty in moving the engine without a signal from plaintiff and without sounding a warning from the engine, and this warranted a finding of negligence on his part. It is not essential, in order to sustain the charge of negligence, that the hostler be shown to have known or had reason to believe, at the time he moved the engine, that •plaintiff was in a place of danger. If it was his duty to await a signal from plaintiff, the exercise of ordinary care demanded that the engine be not moved unless he knew that the plaintiff was not exposed to danger; at least, the jury had the right to find negligence under those circumstances, whether the hostler knew of plaintiff’s perilous position or not.

The testimony also sustains the finding that plaintiff was not guilty of negligence. He testified that it was customary to get down on the fireman’s side and cross behind the tender by stepping on the binding rod while holding to the rod on the tender; that it was inconvenient to get over in any other way on the engineer’s side of the tender, where it was necessary to place himself in order to give signals by lantern to the hostler. Plaintiff could rely to some extent on the fact that the hostler was in duty bound not to move the engine until he gave the signal, and this was a proper element of consideration in determining whether or not he was negligent. The jury had the right to consider plaintiff’s age and the amount of his experience in. that work in testing the degree of care to which he should be held. Western Coal & Mining Co. v. Burns, 84 Ark. 74; Arkansas Midland Ry. Co. v. Worden, 90 Ark. 407.

It is next contended that the court erred in refusing to give the following instructions which defendant requested, towit:

“III. In determining whether the hostler, Harris, was negligent and his negligence was such as will entitle the plaintiff to maintain his action against the defendant, you are instructed, that Harris, acting for defendant, was under obligation to exercise ordinary care in the handling or operation of the engine to protect from injury such employees as an ordinarily prudent man, situated as Harris, in the exercise of ordinary care, would have discovered or had reason to expect might be injured from the operation of the engine.”

“IV. If the hostler, Harris, in the exercise of ordinary care, had no reason to expect Aiken to be where he was when injured, it makes no difference whether the engine was moved as alleged in the complaint, and your verdict should be for defendant.”

We think that the other instructions given on the subject-of Harris’s negligence were sufficiently specific and full to correctly present that issue to the jury, and that no prejudice resulted from refusing to give these two on that subject, even if they were correct. These instructions were, however, not correct in their application to the proof in this case, for they entirely ignored the plaintiff’s theory of the case, and laid down an erroneous test of negligence if the jury found with plaintiff on the disputed facts. If, as stated by plaintiff in bis testimony, it was customary for the hostler to await a start signal from the plaintiff and not to move the engine before receiving that signal from him nor without sounding the bell or whistle, then it constituted negligence for him to violate this rule, whether he was aware of plaintiff’s perilous position or not. Defendant’s witnesses testified that plaintiff gave the hostler a signal to move by saying to him: “Let’s put her in;” and if these refused instructions had been so framed as to submit that issue to the jury, they"would have been correct; but they omitted this issue entirely, and unqualifiedly told the jury, in effect, that the question of Harris's negligence depended upon his knowledge of or reason to expect danger to some employee, even though he was forbidden by the custom to move the engine without first receiving a signal from the plaintiff, and violated his duty in that respect. Violation of a rule or custom established for the protection of employees in a hazardous occupation constitutes negligence per se. St. Louis, I. M. & S. Ry. Co. v. Caraway, 77 Ark. 405; St. Louis, I. M. & S. Ry. Co. v. Dupree, 84 Ark. 377.

The assignments of error most earnestly pressed on our attention relate to alleged improper arguments of counsel for plaintiff. The recital of the bill of exceptions relating to the first assignment on the subject reads as follows:

“ Senator Davis, of counsel for plaintiff, was further permitted in the course of his argument, over the objection of the defendant, to refer to the pathetic, bereft and unfortunate condition of the widowed mother of plaintiff, her want and distress following the injury of her boy and the presence of her little children and her dependence upon plaintiff for support. ”

In Kansas City Southern Ry. Co. v. Murphy, 74 Ark. 256, Chief Justice Hill, speaking for the court, laid down the following rule, which has often been quoted here with approval, and which may be said to have become the settled rule of this court in dealing with assignments of error on this subject:

“When the ruling of the court is presented to the appellate court in proper manner, then it is the duty of the appellate court to look to the remarks, and weigh their probable effect upon the issues; then to the action of the trial court in dealing with them; and if the trial court has not properly eliminated their sinister effect, and they seem to have created prejudice, and likely produced a verdict not otherwise obtainable, then the appellate court should reverse. However, a wide range of discretion must be allowed the circuit judges in dealing with the subject, for they can best determine at the time the effect of unwarranted argument; but that discretion is not an arbitrary one, but that sound judicial discretion the exercise of which is a matter of review. . * * * In the final analysis, the reversal rests upon an undue advantage having been secured by argument which has worked a prejudice to the losing party not warranted by the law and facts of the case. ”

It being our duty to “look to the remarks and weigh their probable effect upon the issues,” the language used by counsel should have been set forth in the record so that we could determine its probable effect upon the jury. We do not reverse judgments merely because some improper remark has been made by counsel in the course of argument, but it is only where it appears likely that prejudice resulted in an advantage which would not otherwise have been obtained. We cannot tell whether or not the remarks were calculated to prejudice the rights of defendant unless we know what was said. The recital in the record merely states a conclusion as to the reference made by counsel, without stating the language used upon which the conclusion is based and without showing the extent of the reference. The circuit judge evidently thought that the reference was too slight to have any prejudicial effect, and we might think so too if we had the language of the counsel before us. It is very indefinite merely to state that counsel referred to certain things. The term is too indefinite to give any idea of the effect that the reference could have had. Mrs. Aiken, plaintiff’s mother, was a witness in the case, and testified to material matters tending to establish the extent of plaintiff’s damages, his earning capacity and the extent of his physical pain. She was permitted to state without any objection from defendant the number, ages and sex of her children, the fact of her husband’s death and the dependency of the whole family on her son, the plaintiff. Counsel did not seem to fear any prejudicial effect from this testimony on the minds of the jury, though it was clearly incompetent and doubtless would have been excluded by the court if the request had been made. The reference of counsel to the bereft condition of plaintiff’s mother may, for aught we know, have been made merely by the use of adjectives in speaking her name to the jury as one of the witnesses in the case when he commented on her testimony. As before stated, we do not know how or to what extent he referred to her condition, and therefore can not determine whether the reference could have had any effect. We should not indulge the presumption that prejudice resulted unless we have enough before us to be able to see whether or not the language used was calculated to operate to the prejudice of the other party. It is the duty of the complaining party to bring enough into the record to show that prejudice might have resulted. It would,' of course, have been erroneous and prejudicial for counsel to make an appeal to the jury for a verdict on account of the pathetic and distressed condition of plaintiff’s mother and her dependency on her son, or for an increase of the amount of damages on that account; for it is too plain for argument that her condition had nothing to do with plaintiff’s right of recovery or with the amount of damages to be assessed. On the other hand, counsel had the right to comment on that part of her testimony which was material and competent, and, if in doing so he made slight reference to her condition, we can not say, without knowing the extent of the remark, whether or not it could have had any prejudicial effect.

The other exception to the argument of counsel appears in the record as follows:

“Mr. Pace, counsel for plaintiff, in the course of his argument to the jury on behalf of plaintiff, made the following remarks and statements to the jury over defendant’s objections: ' These poor railroad boys — I feel sorry, for them. Whenever they are called upon to testify, you place then’ testimony in one scale and their bread in another. ’ The defendant objected to the remark, and the court said the jury had the right to consider the witness’ interest or bias or prejudice in the case as affecting their testimony, and railroad employees who are witnesses are, in their testimony, subject to the same rules as others — their testimony should be weighed exactly as that of other witnesses. To this action of the court, defendant excepted. Before the conclusion of the argument in the case the court entirely excluded the above remark of Mr. Pace and directed the jury to disregard it.”

It is well settled by the decisions of this court that it constitutes reversible error for an attorney in a case to be permitted to go outside of the record and to state to the jury a material .fact bearing on the question at issue. On the other hand, it is equally well settled that an attorney has the right in argument to express his opinion as to the effect of the evidence adduced and the inferences to be drawn therefrom. He may comment on the relations of the witnesses to one of the parties as showing interest or bias on the part of the witnesses. St. Louis, I. M. & S. Ry. Co. v. Raines, 90 Ark. 398. Now, it is not clear from the language used by counsel whether he meant to express an opinion as an inference from the relation shown to exist between the defendant and its employees who testified in the case, or whether he meant to state as a fact in the case that the witnesses would be discharged and thereby lose their daily bread if the testimony they gave was unfavorable to defendant. The court seems to have construed the language of counsel merely as a comment on the interest of the witnesses as employees of the defendant, for the trial judge remarked, when first passing on the objection, that the “jury had the right to consider the witness’ interest or bias or prejudice in the case as affecting their testimony. ” The silence of counsel at the time indicated his acquiescence in that construction of the language which he had used. But, be that as it may, the trial judge concluded later, during the argument, to exclude the remark, and did so, telling the jury to disregard it. It does not appear from the record how long after the remark was made before it was excluded. This remark does not fall within the class of objectionable arguments so flagrantly prejudicial in themselves that no action of the court can eradicate the effect. St. Louis, I. M. & S. Ry. Co. v. Pell, 89 Ark. 87; St. Louis, I. M. & S. Ry. Co. v. Raines, supra. Some deference must be given to the opinion of the trial judge in determining whether or not any prejudice has resulted from improper remarks and in eliminating them from the minds of the jury; and where there has been a timely exclusion of the objectionable remarks, we should not reverse a case unless we feel sure that the prejudicial effect was not removed. The fact is that the court told the jury before the close of the argument that they must disregard the remarles above referred to, and we must assume that the jury obeyed the court’s admonition and gave no heed to the excluded remark of counsel. The testimony is not so scant, either as to the right of recovery or as to the amount of damages, as to indicate that the jury were influenced by anything other than the testimony in the case, which well sustained the verdict.

There is but one other assignment of error, and that relates to the ruling of the court in refusing to permit defendant’s counsel to pursue the examination of a juror as to his bias. After a lengthy examination of the juror by counsel the court • stopped the examination, and said that it was sufficient. Counsel then challenged the juror peremptorily, and agreed to a trial of the case before eleven jurors. It does not appear from the record that defendant exhausted its peremptory challenges and was compelled to accept a juror which it otherwise would not have accepted; therefore no prejudice resulted from the ruling, even if it was incorrect. The extent of the examination of the juror rested, however, within the sound discretion of the trial court, and there was no abuse of that discretion. Defendant was permitted to pursue the examination until every matter bearing upon the juror’s qualifications seems to have been fully drawn out.

Judgment affirmed.

Wood and Hart, JJ., dissent.