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

Hart, J.

Appellant prosecutes this appeal to reverse a judgment for $2,000 rendered against it in favor -of appellee for injuries sustained while unloading some household goods from one of appellant’s freight cars. According to the abstract of appellant, appellee testified as follows:

“I am the plaintiff in this case. I was 36 years old the 4th day of February. I am married. I have four children. We arrived at Cominto Saturday night at 7 or 8 o’clock- — -something like that — and we could not unload the car until Monday. I don’t know what time we started, but I suppose it was 10 or 11 o’clock. It was raining that, morning, and we waited until the weather was suitable to move it, and that evening .when I went down to see that the trunks and a few things were taken — -the train didn’t leave Wilrnar until about-4:3o, and there wasn’t any show to unload that night — so we were down there, and it was about 5, I guess, in the afternoon — might have been a few minutes after 5. The mill stopped at 5 o’clock, and the mill hands were leaving the mill, and I was down -at the -car at that time, and this local came in, and I stood in the door, and -so -did the children, and looked at the engine. Tt was stopped down below u-s there. I don’t know how far, a-s I didn’-t measure beforehand and wasn’t able to afterwards, and so I, of course, looked at them; they saw me, and I saw them, and I went on about my business in the car, to get my things arranged so I could -get them out, as I wanted them, and I heard the train pulling out, but I had no idea it w-as coming on the switch, and the first I knew I was thrown about six feet forward. When I saw it, the engine was off on the main line. I never saw it on the side track. If I had had any idea i-t was coming on the side tra-ck, I would -not have been on it, and when they struck they threw me six feet forward. There was a heater there, a couple of sewing machines, a barrel of fruit jars, a heavy trunk and myself, all bundled ,up there together. The top of a heavy walnut dresser was thrown on me, and my 'head was struck here, and had a knot on it as big as your head and black as your shoes. When I got out of thi-s car after the accident, went direct to Mrs. Lindsey’s.”

She also gave a detailed account -of the character and extent of her injuries, a reference to whioh will be made later.

-Rube Mays for appellee testified that he saw the flat cars when they struck the car in -which appellee was at -work unloading her goods. There was a little girl assisting appellee in her work. Witness warned her that there were cars coming down the side track, and told her that she had better get out of the car. He says he called to the little girl loud enough for appellee to hear him, but does not know whether appellee -did hear him. Witness then went forward, and called to the brakeman on the moving cars that there was a lady in the oar he was approaching. The track was down grade, and the cars were moving pretty fast. The brakeman then tried to stop the cars and jumped .off before the moving cars struck the one in which appellee was working.

Other evidence for appellee shows that the cars struck the one in which appellee was unloading her goods with unusual force.

Tire train crew state that they did not see appellee in the car unloading her goods on the day she was injured. The conductor stated that he remembered appellee coming in with him on Saturday preceding the injury, and that he “spotted” the car at her request in order that she might unload it. When he returned on Monday, he states that he never thought about that car at all; that, if he had thought of it at all, he would have thought it was unloaded; that he went down there after the accident, and it seemed as if they struck the car “a little bard.”

The brakeman stated that the three cars were sent in on the side track by what is known as a drop switch; that he was on the middle car, and set the brake on it; that he could not set it very tight, but checked the cars a little; that the chain got down below, and the brake would not work well; that no one called to him that there was any one in the car; that he dropped the cars down in the usual way, and jumped off and opened the knuckle in order to make the coupling.

Counsel for appellant contend (to use their own language) that “there is absolutely no evidence, circumstantial or direct, tending to show either actual or imputable knowledge of the presence of plaintiff in the car up to the time when Mr. Mays says he shouted to the brakeman and warned him.”

Appellee testifies that when the train came in and stopped, she looked at the train crew. She says: “They saw me, and I saw them.”

It is a matter of common experience that two persons may look toward each other, and that one may see the other while the latter, from preoccupation of mind or other causes, may not. see the former. It is equally true, however, that within certain limits of distance if one person looks at another he can tell whether or not that person sees him. Appellee does not state what the distance was between her and the train crew. She states that she does not know, 'but she says they saw her. If close enough, she could tell whether or not they saw her, and the jury had a right to accept her testimony, and reject that of the train crew who testified that they did not see her.

While the brakeman testified that the drop switch was made in the usual manner and was accompanied by only the ordinary jolt or jar, it will be noted that the cars were moving down a steep grade, and the brake was out of fix, and the jury may have found from this and other evidence that the cars came together with unusual force. The question of fact which the jury was called upon to decide was whether, under the facts and circumstances adduced in evidence, the train crew knew of or should have anticipated the presence of some one at the car, and should have operated the cars with that end in view to avoid injury. St. Louis, I. M. & S. Ry. Co. v. Clements, 93 Ark. 18; Watson v. Wabash, etc., Ry Co., 66 Iowa, 164, 23 N. W. 380; Dooley v. Missouri, K. & T. Ry. Co. (Tex. Civ. App.), 110 S. W. 135; Missouri, K. & T. Ry. Co. v. Thomas (Tex. Civ. App.), 107 S. W. 868; Louisville & N. R. Co. v. Hurst (Ky.) 116 S. W. 291; Houston, etc., Ry. Co. v. Gerald (Tex. Civ. App.) 128 S. W. 166; Louisville & N. R. Co. v. Crow (Ky.) 118 S. W. 366; Hudgens v. St. Louis & S. F. R. Co. (Mo. App.) 119 S. W. 523; State v. Western Md. R. Co., 98 Md. 125, 1 Am. & Eng. Ann. Cas. 598, and case note.

Counsel for appellant insist that the court used the words “knew or might have known” in an instruction on this question, when it should have used the words “knew or ought to have known.” Might is often used to suggest an omission or neglect, and in any view we think a specific objection should have been made to the use of the word. St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 260; St. Louis, I. M. & S. Ry. Co. v. Pritchett, 66 Ark. 46.

We now come to the excessiveness of the verdict. The physicians who examined plaintiff testify that she has received no permanent injuries. One of these had ¡been her family physician. Other evidence shows that she soon recovered from her injuries. She walked away from the car on the day she was injured, and it does not appear that she suffered severe pain for any length of time. • Without recounting the evidence in detail, we deem it sufficient to say that we have given the testimony bearing on that point careful consideration, and have come to the' conclusion that the verdict was excessive.

If within 15 days appellee will enter a remittitur of one thousand dollars, the judgment will be affirmed; otherwise, the judgment will be reversed, and the cause be remanded for a new trial.