St. Louis Southwestern Railway Co. v. Kendall ( 1914 )

Kirby, J.,

(after stating the facts). (1) Neither of the appellants complain of the instructions given the jury-on the part of the appellee, both insist that the verdict is excessive, and each contends that but for the negligence of the other, the accident would not have occurred, and that any negligence on its part was not the proximate cause of the injury. There is no doubt but that those in charge of the.Cotton Belt train, by keeping a lookout, could and would have seen the Iron Mountain train approaching the crossing in time to have -avoided the injury by stopping the train if they had been in the exercise of ordinary care. Neither is there any doubt but that the enginemen of the Iron Mountain train could also have discovered the Cotton Belt train by the exercise of ordinary care in time to have prevented the collision. Both of the railroad companies were negligent, and but for the negligence of each, the collision would not have occurred, and the concurring negligence of both produced the injury for which both are liable. Cyc. lays down the following general rule: “ * * * Where an injury is sustained by reason of the joint or concurrent negligence of two railroad companies, * * ' * plaintiff may sue both jointly, and it is not necessary that there should be a breach of a joint duty or any concerted action on the part of the defendants, but it is sufficient if their several acts of negligence concur and unite in producing the injury complained of; nor is it material that one of the defendants owed the plaintiff a higher degree of care than the other.” 33 Cyc. 726.

In City Electric Street Railway v. Conery, 61 Ark. 381, where -an injury was received by coming in contact with a telephone wire charged with electricity communicated from a trolley wire, the court said: “If the injury was the result of concurring negligence of the two parties, and would not have occurred in the absence of either, * * # the negligence of the two was the proximate cause of the same, and both parties are liable.” See, also, St. Louis, I. M. & S. Ry. Co. v. Shaw, 94 Ark. 15; St. Louis S. W. Ry. Co. v. Mackey, 95 Ark. 297; Strange v. Bodcaw Lumber Company, 79 Ark. 490.

(2) It is contended that the damages are excessive, and this contention must be sustained. The appellee was sixty-two years old with a life expectancy of virtually thirteen years, and -earning $1,600 a year salary at the time of the injury. He is permanently and totally disabled from performing manual labor, and can not resume his duties as conductor, in which he had been engaged for twenty years or more. He suffered great pain from the dislocated shoulder, the broken ribs, the cut on the back of his head and other bruises, and had an attack of peritonitis before his recovery, and was confined» to his bed for about three months. His wounds are all healed, but he still suffers from neuritis, and will probably continue to do so throughout his life. The pain is worse during bad weather. Appellee had passed beyond life’s meridian well down on the further slope. There was no hope of promotion in prospect for him,-and but thirteen years of life in expectancy. It is possible, but not probable, that he would have continued physically able td discharge the duties of his position, and retained it until the age of seventy-five, the end of his expectancy. Virtually, $14,100 will purchase an annuity that would yield $1,600 a year, the amount of salary appellee was receiving, but this -estimates the entire life expectancy at the full salary for the period without taking into consideration, as ought to be done, the probability of loss of time from sickness, loss of position and decreased physical force with advancing years, and the jury allowed even more than this, and their verdict is excessive. Appellee’s business at Holly Grove, it is true, was shown to be yielding him an income also, but the injury can not be said to have caused him loss on that account, for he was not personally conducting the business, and so far as the proof shows, he can devote more directing attention to it now than he was doing before the injury.

(3-4) The jury awarded $20,000 damages for pain and suffering. Appellee is well of his injuries now after three months of suffering and confinement to his bed, save for the neuritis that will probably afflict him to the end. He suffered much, but, as said in St. Louis, I. M. & S. Ry. Co. v. Brown, 100 Ark. 124, “There is no market where pain and 'Suffering are boug’ht and 'sold or any standard by which compensation for it can be definitely ascertained and the amount actually endured determined,” and compensation therefor must be considered on a reasonable basis, and the jury can not give any amount they please, although the amount of damages must be left largely to the reasonable discretion of the jury. The court is of the opinion that the amount awarded for pain and 'suffering is excessive also. St. Louis, I. M. & S. Ry. Co. v. Brown, 100 Ark. 123; Aluminum Company v. Ramsey, 89 Ark. 541. Upon the whole case, our conclusion is that the award of damages for each cause of action is excessive, and that the judgment for both causes should be, and is reduced, to $20,000, and as modified, it will be affirmed.

It is so ordered.