St. Louis, Iron Mountain & Southern Railway Co. v. Evans , 99 Ark. 69 ( 1911 )

Hart, J.,

(after stating the facts): Counsel for defendant assign as error the action of the court in giving the following instruction:

“4. You are instructed that the preponderance of evidence does not mean the greater number of witnesses, but it means the evidence that appears to you as most probably true and which, after a careful consideration of all the facts and circumstances in the case, appears to you of greater weight than the evidence offered on the other side, that is, the evidence which preponderates and has no reference to the number of witnesses.”

We do not think the defendant was prejudiced by this instruction, when read in the light of the evidence and in connection with the other instructions on the same subject. The evidence is to be weighed by the jury, and in determining on which side the greater weight of the evidence is the jury may of course consider the element of numbers. In other instructions the court told the jury that the preponderance of the evidence meant the greater weight of evidence. That the jury was the sole judges of the weight of the evidence and the credibility of the witnesses. That in passing on the weight to be given to the testimony of any witness the jury should take into consideration any bias or prejudice that may be shown, the interest of any witnesses, if shown, the reasonableness or unreasonableness of his statements, any conflicts or contradictions that might appear in his testimony, when considered alone or as compared with other evidence adduced at the trial. The jury was also told to carefully consider all the facts and circumstances detailed in evidence by the witnesses and the manner and conduct of the witnesses while testifying.

The court further said: “You ’ are told that you can not arbitrarily disregard the testimony of any witness, whether introduced on behalf of the plaintiff or the defendant, but that it will be your duty to give to the testimony of all witnesses who have testified before you, whether introduced on behalf of the plaintiff or the defendant, the same care and consideration in arriving at your verdict.”

The court specifically told the jury that the instructions should be considered together, and repeatedly instructed them to consider all the evidence in weighing it, and that they must not arbitrarily disregard the -testimony of any witness. Hence we hold that the defect in the instruction was cured by other instructions on the same point, given by the court on its motion and at the request of -the defendant. These additional instructions show plainly that the court did not mea-n to tell the jury that they could not consider the element of the number of witnesses in weighing the evidence, and we do not think that the jury so understood the instructions, when read together.

In the case of Railway Co. v. Johnson, 59 Ark. at p. 129, the court, in discussing a somewhat similar assignment of error, said: “The charge of the court in the first part of the fourth instruction was not correct in that it permitted the jury, in weighing the evidence, to regard the mere personnel of witnesses, rather than the subject-matter of their testimony, when both should be considered. But whatever defect there was in this •particular was cured by the second prayer, given at the instance of appellant, in which the court told the jury ‘that they -must not discredit any witness arbitrarily, nor discard or depreciate the testimony of witnesses merely because they were in the employ of the defendant.’ ”

2. Counsel for defendant insist that the co-urt erred in giving the following instruction:

*5. If you find from the evidence in this case that Steve Evans was a passenger on defendant’s train on the 19th day of September, 1909'; that going to the place where water was kept, or to the water closet, even while the train was going at a rapid rate of speed, was not of itself negligence; and if there was no water in the coach in which he was riding, he would have the right to go from one coach to the -other for the purpose of getting water, or to go from -the white -end of the combination car to the other end for the purpose of getting water, and he would not necessarily be guilty of negligence in doing so, but be would have a right to go there and to stand there while drinking his water; provided the standing was not so protracted or uncalled for that it became unnecessary or imprudent.”

They contend that there is no -testimony upon which to predicate it. We do not agree with them. The theory of the defendant is that Steve Evans was not a passenger, and that he was riding on the blind baggage or some other part of the train where passengers were not allowed to ride, when the train was wrecked. On the other hand, plaintiff contends that Steve Evans was a passenger, and that 'he went ■ from the coach in which he was riding into the compartment for colored persons for the purpose of getting a drink of water. He had a right to leave his seat for the purpose of getting a drink of water, and -it did not make any difference whether he went for it to the end of the car set apart for colored passengers or obtained it in the end set apart for white passengers. There could be no more danger -in going to one end of the coach than the other. Separate compartments for white and colored persons are required by the statutes for the segregation of the races, and not for the safety of the passengers.

The defendant’s witnesses composing the train crew testified that they did not remember whether or not Steve Evans was a passenger on the train the day it was wrecked.

P-laintiff adduced evidence tending to show that Steve Evans came into the negro coach and went straight to the water cooler and began drinking water; that he lived at P-ine Bluff and had in his hat a check similar to those given other passengers for Pine Bluff; that the train was in motion when he entered the negro compartment. From these facts and circumstances, the jury might have found that he was a passenger and that he came into the negro compartment to get a drink of water.

3. 'Counsel for defendant assign as error the action of the court in giving the following instruction:

“7. If you find from the evidence in this case that the deceased, Steve Evans, was a passenger on defendant’s train, and that the train was wrecked or derailed, then the mere fact that the -deceased, through fear or apprehension of danger, did an act which was the immediate cause of injury to himself does not, of itself, amount to negligence; if the negligence of the defendant put the deceased in peril, and in attempting to escape that peril he did an act, also dangerous, from which injury resulted to him, such act would not necessarily be an act of contributory negligence, such as would prevent a recovery for such injury. The test of contributory negligence under such circumstances is, was his attempt to escape, if you believe he made an attempt to escape, an unreasonable or rash act, or was't an act that a person of ordinary prudence might do under like existing circumstances ? And it is not to be determined by the result of the attempt to escape, or by the result that would have followed had the attempt not been made. . If you should find from the evidence that the deceased, by the negligent wrecking of the train, was placed by the defendant in a position of danger, while in the car of the defendant, then the deceased would have the right to judge of the danger in remaining in said oar and also the dangers in attempting to escape, from the circumstances as they appeared to him at the time and not by the result; and if he, in making such attempt to escape, used such care as a prudent man, under such circumstances should have used, and in doing so received an injury, your verdict should be for the plaintiff.”

Just before the train was wrecked the evidence shows that several jolts were felt. The train auditor himself says: “The first thing I noticed was a jerk and a jar, then a jump, and the cars were going over the crossties, and they turned over. The passengers fell the way it turned, and there was a sudden jo;lt, and it stopped altogether.” The negro car fell over towards the right, and Evans was found lying at the foot of the embankment on the right side opposite the front part of the negro coach. Evans was a boiler maker and worked in the railroad shops at Pine Bluff. Presumably, he was familiar with the movement and operation of trains. It is the theory of plaintiff that when he felt the first jar he ran out on the front platform and was thrown from there by the derailment of the train. An instruction similar to this was approved in the case of Railway Company v. Murray> 55 Ark. 248, and we think the facts and circumstances adduced in evidence by the plaintiff were sufficient to warrant the court in giving the instruction.

4. Counsel for defendant contend that there was error in giving the following instruction:

“6. If you find for the plaintiff for the benefit of the next of kin, your verdict will be for such a sum of money as will be a just and fair compensation to the mother by reason of the death of the deceased; and you are to arrive at this by taking what the proof shows that deceased would have contributed to his mother during her expectancy and the present worth of this sum would be the amount of your verdict. If you find for the plaintiff, and if you believe from the evidence that deceased, Steve Evans, suffered any conscious pain from the injury received, then you will find for the plaintiff, for the benefit of the estate of the deecased, in whatever sum you believe from the evidence, in 3'our sound discretion and judgment, .plaintiff is entitled to recover for pain and suffering.”

The chief abjection of counsel to this instruction is that no effort was made to prove the expectancy of life of Mrs. Mattie E. Evans by the introduction of mortuary tables; but life tables are not the only way of proving the probable duration of life. The jury may determine the probable duration of life from the age, health, 'habits, and other facts which affect its probable continuance. Kansas City So. Ry. Co. v. Morris, 80 Ark. 528; St. Louis, I. M. & S. Ry. Co. v. Glossup, 88 Ark. 225. Here the testimony showed that the mother was 46 and the son was 22; that both were in good health and of good habits; that the son, although of legal age, gave most of his earnings to his mother, and from this and other circumstances adduced in evi-. dence the jury might have inferred that he would continue to do so. While the testimony of the defendant tends to show that Steve Evans was unconscious from the time -he was injured until he died, the testimony of the plaintiff shows that he was conscious. His mother says he was conscious the next riiorning, and Bell states that he appeared to be conscious that night after the injury. We hold that there was evidence sufficient to warrant this instruction.

5. Counsel for defendant next complain that the court erred in refusing its fifth instruction, which is as follows:

“5. The jury are instructed that, although they may find that the deceased was a passenger on defendant’s train at the time of the wreck, yet if you believe from a preponderance of the evidence that at said time he was standing or sitting upon the platform of any of the coaches of said train, or that he was on any part of said train other than on the inside of the coaches, where provision was made for passengers to ride, then your verdict will be for the defendant.”

The court, however, did give the following instruction at the request of defendant:

“6. You are instructed that, although jmu may find from the evidence that deceased at the time of the wreck was a passenger on defendant’s train, yet, if you believe from a preponderance of the evidence, taking into your consideration all the facts and circumstances detailed by the witnesses, that at the time of the wreck deceased was occupying any other part of the train than that provided by the defendant for the use of passengers, and that by reason thereof he was thrown from the train and received the injury complained of, then your verdict will be for the defendant.”

It is well settled that each side has the .right to have its theory of the case presented to the jury, and no citation of authorities is necessary on that point. We think the court should have given the fifth instruction because it presented defendant’s theory of the case in a little more concrete form than the sixth instruction. We do not think, however, there was prejudicial error in refusing it; for the matters embraced in it were substantially covered by the sixth instruction.

6. There was no error in refusing defendant’s fourteenth requested instruction, which is as follows:

“14. The jury are instructed that, although they may find that at the time of the wreck deceased was a passenger on defendant’s train, yet, if you believe by a preponderance of the evidence that at the time of the wreck he was in the colored coach, a place not provided for 'the use of white passengers, and where, under the rules of the defendant company, he had no right to be, and you further find that he would not 'have received the injuries complained of had he been riding in that part of the coaches provided for the transportation of white passengers, then your verdict will be for the defendant.”

The provisions of our statutes and the rules of the companv based on them in regard to separate coaches for white and colored persons are for the segregation of the races, and have no reference to the safety of the passengers. On the other hand, rules of the company requiring passengers to ride in coaches and not on the platforms or other ¿portions of the train obviously dangerous are for the protection of the passengers; and usually where the passengers wilfully violate these rules promulgated for their safety, they are deemed guilty of contributory negligence. It is evident that the fact of whether Steve Evans was in the end of the coach provided for white passengers or that provided for colored passengers could in no way be said to be a factor in causing his injury and death.

7. We now come to the question of the sufficiency of the evidence to support the verdict. Counsel for defendant earnestly insist on a reversal of the judgment upon this ground.

In determining this question, we must remember that the jury were the judges of the weight of the evidence, and, the verdict being for the plaintiff, the evidence adduced bjr her must be given .its greatest probative force. Walker and Bell both place Steve Evans at the water cooler just at the right of the front door in the negro compartment previous 'to the wreck. They say he came in there, while the train was running, with a check in his hat similar to that possessed by other passengers for Pine Bluff. It was shown that Steve Evans resided there, and 'had gone to Little Rock on the early morning train with the intention of returning home that night. He had sufficient money when he left to bear his expenses to Little Rock and return. Lienee, if the testimony of Walker and Bell is to be believed, it may be taken as established that Steve Evans was a passenger and was in the negro* compartment of the coach at the water cooler, drinking water, just before the wreck. Bell says he saw him standing there when the first jar was felt. That he then turned his head away and began looking to his own safety. It is not improbable, then, that Evans when he first felt the jar sprung through the door with the intention of being on the platform where he could jump if he thought that the safer course, and that he was thrown from there to the place where he was found. Walker testifies that Evans was found on a line at right' angles to the front steps of the negro coach. The other witnesses place it further forward, and the train auditor and porter testify positively that Evans was not in the negro coach when the train began to leave the track. The jury settled this conflict in the evidence in favor of the plaintiff. Counsel ' for defendant insist that the physical facts show that the verdict is not supported by any substantial evidence. By which they mean that, assuming all the matters testified to- by plaintiff’s witnesses to be true, Evans could not have been lying where he was found. We do not agree with them. If Evans ran out of the front door of the negro coach when he first felt the train begin to leave the track, it is possible, if not probable, that he would have been thrown just where Walker says be was found. The jury had a right to base their verdict, not only upon facts known and seen by witnesses, but also-upon such inferences as reasonable minds might, deduce from these facts and circumstances.

8. It is urged by counsel for defendant that the court erred in admitting evidence of repairs to the engine wheels after the accident. The record shows that plaintiff was permitted to show that one of the probable causes of the wreck was that the flanges on the wheels of the engine had become, too much worn. Testimony was introduced tending to show the condition of the eguipment at the time of the wreck, but all testimony tending to show that any repairs were made necessary by the wreck was expressly withdrawn from the consideration. That it was proper to show the condition of the flanges at the time of the wreck, see St. Louis, I. M. & S. Ry. Co. v. Freeman, 89 Ark. 327; Bodcaw Lumber Co. v. Ford, 82 Ark. 555.

9. It is insisted that the judgment should be reversed on account of improper remarks made by counsel for plaintiff during the taking of the testimony before the jury. The remarks complained of were -made under the following circumstances: Counsel for .plaintiff introduced a witness by whom they thought they could prove that Steve Evans was a passenger on the train the day of the wreck. It turned out that the evidence of the witness was hearsay, and all of it was excluded from .the jury except his statement that a supposed companion of Steve Evans on that day was dead, and on cross-examination counsel for defendant asked him: “Did you ever know any one in your life who is now dead?” and upon his answering, “Yes, sir,” counsel for plaintiff said: “I guess he knows lots of people the Iron Mountain has killed.” We do not think the remark was intended as a statement of a fact to the jury to influence them in arriving at a verdict, nor that it was so considered by them. The jury is presumed to have been composed of men of ordinary experience in the affairs of life, and doubtless knew that men are frequently killed by trains, and also knew that the remarks were not intended otherwise than as playful raillery.

The judgment will be affirmed.