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principle that a pavement will outlast a boot, woke up at night crying, and a physician testior a shoe, and be not as costly in proportion. fied that the injury caused her to be in the If this is not sound reasoning then my com- able that the injury would affect her for several

physical condition shown, and that it was probe mon knowledge, experience and general ob- years, and another physician, in response to a servation is not worth the paper these words hypothetical question, stated that it was possiare written upon.

ble that she would not recover for an indefinite

period, there was sufficient evidence to justify But be this true or false, I am still of the the submission to the jury of the issue of fuopinion that the grievous injuries sustained ture pain and suffering. by the plaintiff were caused by the grossest [Ed. Note.-For other cases, see Damages, character of negligence on the part of the de Cent. Dig S. 54. 64, 68, 132, 144, 145, 205, fendant and that the defendant had a fair 220, 533, 534; Dec. Dig? $ 208.*] and impartial trial, and for that reason the 5. APPEAL AND ERROR (8 1004*)–PERSONAL

INJURIES-EXCESSIVE DAMAGES. motion for a rehearing should be overruled;

Where, in an action for personal injuries, and it is ordered. All concur except the testimony of plaintiff, if believed, justified GRAVES, BOND, and FARIS, JJ., who dis- the damages awarded, the court will not dis

turb the award on the ground that there was sent.

contradictory evidence minimizing the injuries.

[Ed. Note.-For other cases, see Appeal and

Error, Cent. Dig. 88 3944-3947; Dec. Dig. $ ST. LOUIS SOUTHWESTERN RY. CO. v. 1004.*] OVERTON. (No. 89.)

6. DAMAGES (8 132*)--PERSONAL INJURIES(Supreme Court of Arkansas. July 6, 1914.) EXCESSIVE DAMAGES.

Where a child 512 years old, strong, 1. CARRIERS (8280*) — PASSENGERS MIXED

bright, and healthy, received an injury laceratTRAIN—CARE REQUIRED.

ing her head, and by reason thereof suffered seA passenger on a mixed freight and pas. rious bodily injury, causing great pain and afsenger train assumes the risks reasonably in- | fecting her mind, and pain would likely concident to travel thereon, though the carrier un- tinue for some time, and her physical health dertaking to carry passengers on a mixed train assumes the same high degree of care to protect not be disturbed as excessive.

was greatly impaired, a verdict for $1,000 will them from injury as if they were on passenger

[Ed. Note.-For other cases, see Damages, trains subject to the necessary difference between the operation of passenger trains and Cent. Dig. $8 372–385, 396; Dec. Dig. § 132.*] mixed trains. [Ed. Note.-For other cases, see Carriers,

Appeal from Circuit Court, Monroe CounCent. Dig. $8 1085-1092, 1098-1103, 1105, 1106, ty ; Eugene Lankford, Judge. 1109, 1117; Dec. Dig. 8280.*]

Action by Pauline Overton, by her next 2. TRIAL (8 296*)-INSTRUCTIONS—CURE OF friend and father, J. S. Overton, against the ERROR BY OTHER INSTRUCTIONS.

St. Louis Southwestern Railway Company. Where, in an action for injuries to a pas: From a judgment for plaintiff, defendant senger on a mixed train, the court charged that passengers assumed the risk of the ordinary and appeals. Affirmed. customary jerks and jars incident to the starting and stopping of such trains, and that the

Pauline Overton, through her next friend carrier must use due care for the safety of the and father, J. S. Overton, instituted this passengers, and a mixed train cannot be operat- suit against the appellant, for personal ined carelessly without subjecting it to liability juries. The facts, as they might have been for injuries to passengers, an instruction that, while plaintiff, in taking passage on a mixed found by the jury, giving the evidence its train, assumed the risk of necessary and usual strongest probative force in favor of the apjolts and jars, that fact did not relieve the car, pellee, are substantially as follows: rier from exercising the same high degree of care in the handling of its trains as if she were

On the morning of June 28, 1913, Mrs. on a regular passenger train to avoid injuring Overton, the mother of Pauline, went with her, and the risk of usual jolts and jars assum- Pauline and other children to the station ed by the

passenger is the risk incident to the of Brinkley for the purpose of going on apmode of conveyance without relaxing the rule as to the high degree of care to be exercised by pellant's local freight train to visit her faththe trainmen, was not misleading.

er, who lived on a farm about seven miles [Ed. Note.--For other cases, see Trial, Cent. south of Brinkley, near Keevil. Appellant Dig. $8 705–713, 715, 716, 718; Dec. Dig. 8 ran a daily mixed local freight and passen296.*] 3. CARRIERS ($ 247*) — PASSENGERS

ger train from Brinkley to other points along

MIXED TRAINS-INJURIES TO PASSENGERS.

its line, including Keevil. The caboose or A person entering a coach of a mixed coach for passengers had been placed at or train before it was made up and ready for pas- near the place where it usually stood when sengers, for the purpose of taking passage, is a passenger entitled to the protection of a pas- passengers took passage thereon. J. S. Oversenger, where the coach was standing at or ton and his wife and the children went innear the place where it usually stood for the to the coach, which at the time was not conreception of passengers, and where the coach nected with the engine and other portions of was set there for passengers. [Ed. Note. For other cases, see Carriers,

the train. The coach had seats running Cent. Dig. $8 984-993; Dec. Dig. § 247.*] crosswise in the train similar to the seats in 4. DAMAGES (8 208*)-PERSONAL INJURIES— a regular passenger coach. The seats were FUTURE PAIN AND SUFFERING.

cushioned, but at the top of the seats there Where, in an action for personal injuries was a strip of wood four or five inches in to a child, the parents testified that the child, after the injury complained of, suffered with width. Overton was sitting facing north, and headaches, and that she was nervous and often his daughters, Pauline and Margaret, were *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep's Indexes also facing north. His wife was on the back , something wrong with Pauline. She was seat, facing south. They had been thus seat- no longer the leader in their play as she was ed in the car four or five minutes. He had before the accident. purchased a ticket for his wife. He did not It was alleged in the complaint that the intend to go with them to Keevil. After employés of the appellant negligently ran they had been seated a little while, two men other cars upon the caboose and suddenly passed through the coach, and one of them stopped its train while going at a rapid asked if the Overtons had tickets. Overton speed, "all of which acts were done with such replied that he had the ticket for his wife, force and violence as to knock plaintiff off but that he himself was not going; that he her seat," causing the injury (which she dewas just putting his wife and children on scribes), “to her damage in the sum of the train. About the time these men 'passed $3,000.” out of the car, the engine backed into the The answer denied the negligence as alcoach. The jar threw Overton out of his leged. It admitted that, in the coupling of seat and own on the floor in the aisle. It its cars, plaintiff was knocked down, but dethrew his wife into the seat where he had nied that she was injured to the serious exbeen sitting. It threw Pauline over back-tent she claims. The answer also alleged wards and struck her head, cutting a place that the injury was the result of the careless to the bone on the back of her head. Over- conduct of plaintiff's parents in permitting ton, at the time of the impact, hạd his baby her to occupy a place where she could be in his arms and was trying to quiet it. injured by the coupling of the cars. When he first noticed Pauline after the jar, The employés of the appellant testified she was sitting in her seat with her eyes that the coupling at Brinkley at the time of closed. She sat that way for quite a while, the alleged accident was an ordinary couand then looked up and said, “Papa, my head pling and such as is usually made by freight hurts me." The injury was back of the trains. They were backing up to make the right ear. She had thick heavy hair and coupling with two coal cars next the engine had on her straw hat.

and some four or five freight cars next to Overton ran to the store and phoned to the the caboose. The employés did not know doctor at Keevil, informing him that his wife that Mrs. Overton and her three children and children were coming on the local. He were in the coach at the time the other cars then called Dr. McKnight, and they went were coupled onto it. The cars had autoin McKnight's car down to his wife's fath-matic couplings. The witnesses did not noer's, where his wife and children had gone. tice any jar of the caboose. There was no When they arrived there, Pauline was com- occasion to make a severe coupling. It was plaining of her head hurting her. The doctor cot usual for couplings to be made with forbade the parents bringing Pauline back such force as to throw passengers from their home with them. She remained at her grand- seats. It was not safe for people to stand up father's until the following Monday. The į in freight cars when couplings were being injury occurred on Saturday before.

Dr., made. McKnight brought her back in his car.

The conductor testified that it was not the treated her five or six weeks. Prior to the custoin to allow passengers to get on the accident she was in good health, and since train until they were ready to start. He then she had had chills and fevers, was very had notified passengers not to get on, but had nervous, especially at night, frequently get- | not notified Mrs. Overton not to get on. The ting up at night crying, saying that some brakemen were making up the train, and one was breaking into her room. She was there was no one to lookout for passengers, always complaining of her bead hurting her. except the witness. Often at night she would wake up and go

Among others, the court granted the fol to her parents' bed crying and screaming. | lowing prayer at the request of appellee: These spells had continued up to a week be- “(1) You are told that, while the plaintiff, fore the trial. She never had such spells be- in taking passage upon a mixed train, assumed fore the accident. The first three or four the risk of necessary and usual jolts and jars, weeks after the accident she had spells of this did not relieve the railroad company from

exercising the same high degree of care, in the crying and screaming two or three times a handling of its train as if she was riding on a week. After that the spells were less fre- regular passenger train, to avoid injuring her. quent, being sometimes two or three weeks The risk of usual jolts and jars assumed by

plaintiff is the risk incident to the mode of apart. She had not grown or developed conveyance, and does not relax the rule as to any since the accident. She was 542 years the high degree of care to be exercised by the old at the time of the accident. Since the servants of the defendant to avoid injuring pasaccident she was not as rational as she used the plaintiff was without fault and would not

sengers. So in this case, if you believe that to be. Before the accident she appeared to have been injured if the defendant's servants be a very bright and active child, but after had exercised such high degree of care, your the injury she was very sluggish. When the verdict should be for the plaintiff.” other children were out at play she would The appellant objected to the granting of drop her head and close her eyes like she the above prayer, and especially to the words was in a deep study about something. A “this did not relieve the railroad company

He

care," and also the words "and does not re S. H. West, of St. Louis, Mo., and J. C. lax the rule as to the high degree of care to Hawthorne, of Jonesboro, for appellant. be exercised by the servants of the defendant | Manning, Emerson & Morris, of Little Rock, to avoid injuring passengers.” The court for appellee. overruled the objections, to which appellant duly excepted.

WOOD, J. (after stating the facts as Appellant requested the following prayers the court erred in granting appellee's prayer

above). [1, 2] The appellant contends that for instructions:

“(3) If you find plaintiff Pauline Overton for instruction No. 1. An instruction in this was injured from an unusual and extraordinary form was approved by this court in Ark. S. jerk or jar of the train while being coupled to- | W. Ry. Co. v. Wingfield, 94 Ark, 75, 126 S. W. gether at Brinkley, before you find for her you 76. In that case Mrs. Wingfield sued for permust find that she was a passenger on that train, and that she or some one for her paid or

sonal injuries alleged to have been received offered to pay her fare from Brinkley to Kee- by her from a sudden jar caused by the couvil. The fact that her mother had a ticket pling of a mixed freight and passenger train would not entitle Pauline to ride with her, un

on which she had taken her seat as a passenless payment of her fare was made or tendered.

“(4) You are instructed that if you find ger. Two seats were turned facing each othfrom the evidence that the plaintiffs boarded er in the coach which she entered, and she the caboose before the local freight train was and her husband sat in one of them. While made up and coupled together, and that neither waiting in the yards, the engine came back the engineer nor the, brakemen, clothed with the duty of coupling the train together, knew

with such unusual force as to throw her for. that plaintiffs or other passengers were aboard ward against the seat in front and back the train, and that it was pot the custom at against the seat in which she was sitting. that point for passengers to board the train be- The essential facts upon which the instrucfore it was coupled, the plaintiffs cannot recover in this action for injuries resulting from tion in that case and the one in this case are the jars and jolts in the coupling of the train." | based are similar. The court held in that The court refused the foregoing prayers, the law as announced by this court in St.

case that the instruction was in accord with and appellant duly saved its exceptions. The court granted the following prayer for Louis, 1. M. & S. Ry. Co. v. Brabbzson, 87

Ark. 109, 112 S. W. 222, where we said: instruction at plaintiff's request, to which ap

"It is well settled that, though a passenger pellant saved exceptions :

riding on a freight train must be deemed to “(3) If you find for the plaintiff, you will, have assumed all the risks usually and reasonin assessing her damages, take into considera- ably incident to travel on such trains, yet, tion the injury sustained by her and the physi- where the railroad company undertakes the cal and mental pain and anguish endured by carriage of passengers on freight trains, it her on account of the injury, together with such owes such passengers the same high degree of as she will necessarily endure in the future, re care to protect them from injury as if they were sulting from her injury, if any, together with on passenger trains." all other facts and circumstances in the case,

And further : and assess her damages at such sum as you believe from the evidence will fully compensate "But, as it is not practical to operate freight her for her injury."

trains without occasional jars and jerks calcu.

lated to throw down careless and inexperienced There was a verdict in favor of the appel- passengers standing in the car, 'the duty of the lee in the sum of $1,000, and judgment was company is therefore modified by the necessary

difference between freight and passenger trains entered in her favor for that amount. Other

and the manner in which they must be operatfacts stated in the opinion.

ed; and, while the general rule that the highest Appellee's prayer No. 2:

practicable degree of care must be exercised to You are instructed that a passenger, while the train and necessary difference in its mode

protect passengers holds good, the nature of riding upon a freight train, assumes the risks of operation must be considered, and the comand hazards that are incident to the operation of a freight train ; yet it is the general duty of pany is bound to exercise only the highest de

gree of care that is usually and practically exthe carrier to use due care for the safety of the ercised and consistent with the operation of a passengers, and a freight train carrying pas- train of that nature.'” sengers cannot be operated carelessly without subjecting the company to liability any more The instruction as a whole was not misthan a passenger train, and the operatives in leading and was in conformity with the law charge of a freight train cannot any more over

as announced in the above cases. The first look the due care of their passengers than can the operatives of a passenger train, and, al- | part of the instruction told the jury that the though plaintiff in this case was a passenger plaintiff, in taking passage upon a mixed upon a freight train, yet if you find from the train, assumed the risk of the necessary and evidence that defendant's operatives in charge usual jolts and jars, and in the second paraof said train failed to use due care for plaintiff's safety, or negligently or carelessly operat- graph the instruction informed the jury that ed said train or moved the caboose connected the plaintiff assumed the risk and usual jolts therewith in which plaintiff was a passepger, and jars incident to the mode of conveyance. and that by reason thereof she was injured, The necessary meaning of the court's charge your verdict should be for the plaintiff.

was that the company owed to its passengers Appellant's prayer No. 2:

the same high degree of care in handling You are instructed that passengers riding on their train to avoid injury as it should exerlocal freight trains assume the risk of the or- cise in handling a regular passenger train. dinary and customary jerks and jars resulting in other words, the degree of care which the from their being coupled together, incident to their starting and stopping.

company owes the passenger to avoid injur

ing him is the same whether he be riding on a | lant's employés, and appellant could not commixed freight and passenger train or on a plain that appellee was not a passenger unregular passenger train. St. L., I. M. & 8. der these circumstances. Ry. Co. v. Hartung, 95 Ark, 220, 128 S. W. In Kruse v. St. L., I. M. & S. Ry. Co., 97 1025. But, in determining whether or not Ark. 137, 133 S. W. 841, we said: the company has exercised that high degree "Since there is a statute compelling railroads of care which it owes its passengers, the jury to carry passengers on local freight trains, must take into consideration the difference in train as a passenger, there is no presumption

when a person is permitted to enter a freight the modes of conveyance and the different arising that he is not

a passenger." methods employed in the operation of the

The conductor testified that "the caboose trains; that.degree of care which the company was set in there for passenger's." Under such owes its passengers on either train is the circumstances, the trainmen were bound to highest degree of care which a prudent and anticipate that passengers might go upon the cautious person can exercise reasonably con- coach. See St. L, I. M. & S. Ry. Co. v. Hartsistent with these modes of conveyance and

ung, supra. their practical operation. Sweet v. Railway,

[4] The appellant contends that the court 60 Ark. 550, 31 S. W. 571.

erred in telling the jury that, if they found While the instruction is not happily word for the plaintiff, they should take into coned, yet when it is considered as a whole, and sideration, in assessing her damages, the pain in connection with appellee's prayer No. 2, and anguish that she will necessarily endure and also appellant's prayer No. 2, both of in the future, if any. which were granted, the jury could not have

There was testimony to warrant the jury been misled, and there was no prejudicial in finding that there would be future pain error in granting the prayer in the form as and suffering to the appellee on account of presented. (Reporter set forth in note ap- the injury. The testimony on her behalf pellant's prayer No. 2 and appellee's prayer showed that, at the time of the trial, she was No. 2.)

still suffering as the result of the injury. The difference in the particular modes of Her father, on this point, testified as follows: conveyance and in the manner of their prac- "Since the accident we have had a great deal tical operation are to be considered in deter- of trouble with her. She is very nervous, esmining whether or not the company is negli- pecially at nights. She is always complaining

of her head hurting her. She is not as bright gent in any given case; that is, whether or and active as she was. Very often she will not it has failed to exercise the degree of wake up at night and come to our bed crying care which the law requires, to wit, the high- and screaming. She had one of those spells not

over a week ago. She does not weigh as much est degree of care which a prudent and cau

now as before the injury.” tious person would exercise under similar

Her mother testified as follows: circumstances to avoid injury. [3] There was no error in refusing appel- her head. She is very nervous.

“She is always complaining of suffering with

At night she lant's prayers for instructions numbered 3 cries out in her sleep. She complains of being and 4. These were predicated upon the idea scared and wants to get in bed with us. She that there was testimony tending to warrant before the accident. She has not been well

had always been a very strong, healthy child a finding that the appellee was not a pas- since, although she is some better now. She senger and entitled to the degree of care due has these spells twice a week and sometimes

oftener." a passenger at the time of her injury. The court was correct in refusing to submit to the

Dr. McKnight, appellee's attending physijury to find whether or not appellee was a cian, testified that the injury caused her to passenger on appellant's train at the time of be in the physical condition as detailed by her injury. The undisputed evidence showed her father and grandfather; that it is probthat she went upon appellant's train for the able that the injury, will affect her for sevpurpose of taking passage thereon. The

eral years. coach was standing at or near the place

Dr. Gilbrech, after the condition of the where it usually stood for the reception of child before and since the accident was set passengers at the time appellee boarded the forth in a hypothetical question, stated: same. It was not her fault that she boarded

"It is possible that she would not recover for it without the knowledge of appellant's em

an indefinite period of time." ployés. It was their duty to see that passen

The above testimony was sufficient to justigers did not enter upon the train before the fy the court in submitting to the jury the is. same was made up and ready for passengers sue as to whether or not appellee was entito enter thereon. The brakemen and the con

tled to damages for future pain and suffering. ductor were charged with this duty, and the In St. L., I. M. & S. Ry. Co. v. Bird, 106 Ark. conductor stated that he did not notify Mrs. 177, 153 S. W. 104, we held that:

“Where the evidence shows that the plaintiff Overton not to get on. He also stated that will suffer considerable pain in the future, the brakemen were making up the train, and * the jury may consider future suffering there was no one to look out for the passen. in fixing the amount of damages." gers except himself.

Submitting to the jury the issue of future It thus appears that if the appellee was on suffering, where there is testimony to warthe train before the proper time for her to rant that issue, is an entirely different mat

brain."

for a permanent injury, where there is no sin favor of the appellee, was it sufficient to testimony to show that the injury was per- sustain the verdict? The jury might have manent. See St. L., I. M. & S. Ry. Co. v. found from the evidence that this child, who Bird, supra.

was a strong, bright, and healthy child beHere the instruction only submitted to the fore the injury, had, by reason of the shock, jury to find as to whether or not there would suffered, not only very serious bodily injury, be future pain and sufferin as the result of but also an injur that had affected her mind the injury. The court did not err in submit as well. Her condition, as described by her ting that issue.

parents and her grandfather, shows that she, [5] The verdict is not excessive. The tes- up to the time of the trial, bad endured great timony of the attending physician tended to pain and suffering, and that such was likely show that the wound on appellee's head was to continue for some time in the future. Her a serious one. He says:

physical health had been greatly impaired, I found her suffering with a lacerated and and her mind was also perceptibly affected. contused wound on the back of her head that it was the province of the jury to weigh this extended through the tissue and down to the bone. The wound was bleeding profusely, and testimony in connection with the other eviher clothes were bloody. She did not seem to dence. They have accepted it, and we canbe able to stand alone. She appeared to be not say that the amount of the damages asdazed, as if she had some concussion of the sessed by their verdict as the result of the

injury is excessive. The doctor was asked a hypothetical ques

The judgment is affirmed. tion in which was stated the mental and physical condition of the appellee prior to the injury, and also the condition which the evidence tended to prove she had been in since WILLIAMSON BANK & TRUST CO. y. the injury, and he was asked what, in his

MILES. (No. 29.) opinion, “was the cause of that trouble," and (Supreme Court of Arkansas. June 8, 1914.) answered that "it was the injury.” He also 1. BILLS AND NOTES (211*)-NEGOTIATION. stated that "it was probable that the injury Where the maker of a note drew it to its would affect her for several years, but that own order, and then indorsed it in blank, it he could not say whether it would or not.” was, in legal effect, payable to bearer, and no

indorsement was necessary to pass title. Another physician was asked the following:

[Ed. Note.-For other cases, see Bills and “If a child is not nervous up to the time of Notes, Cent. Dig. 88 500, 501; Dec. Dig. & five years of age, and then receives an injury 211.*) that causes concussion of the brain, and then 2. BILLS AND NOTES (8 370*)-ACTIONS—DI. is very nervous, would you say that the injury is the cause of it?"

RECTED VERDICT.

Where a bank without knowledge of any And answered:

defense purchased a note payable to the mak"Well, with those premises, I would have to er's order and indorsed by him in blank, so as, say that the injury was the cause of the trou- in effect, to be payable to bearer, giving the ble."

seller credit on its books for the amount, the The physician who gave the above testi- bank is entitled to a directed verdict in an ac

tion against the maker, though want of conmony was a witness on behalf of appellant. sideration has been shown, and the seller had

True, physicians who were called in by con- guaranteed payment. sent of the parties to examine the appellee [Ed. Note.-For other cases, see Bills and during the progress of the trial, and who Notes, Cent. Dig. & 963; Dec. Dig. 370.* ] were advised by the attending physician of the

Appeal from Circuit Court, Phillips Councondition in which he found the little girl at ty; J. M. Jackson, Judge. the time of the injury, testified that they did

Action by the Williamson Bank & Trust not find anything wrong with the child ex- company against J. B. Miles, Jr. From a cept a small scar on the right side of her judgment for defendant, plaintiff appeals. head; that if there were any injurious re- Reversed and rendered. sults from the wound they could not tell it from their examination. They reached their

Allen Hughes, of Memphis, Tenn., and conclusion from what they saw of the child. Fink & Dinning, of Helena, for appellant. They had never treated the child.

Bevens & Mundt, of Helena, for appellee. Another physician testified that he lived a short distance from appellee's home; that he

HART, J. This action was commenced behad seen her playing in the street a few days fore a justice of the peace by Williamson after the accident, and saw her frequently Bank & Trust Company against J. B. Miles, playing with other children; and that he Jr., to recover on a promissory note which could not tell that there was anything the was executed by the defendant for the sum matter with her. He could not tell that there of $200. The plaintiff recovered judgment was any difference in the way she acted be- before the justice of the peace, and an appeal fore and after the accident.

was taken to the circuit court, where the [6] The question for us is not what we case was tried before the court sitting withwould have found as the amount of damages out a jury. The circuit court found in favor to appellee bad we been on the jury, but, giv- of the defendant, Miles, and the plaintiff, ing the evidence its strongest probative force Williamson Bank & Trust Company, prose

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*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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