{ "id": 1341152, "name": "St. Louis, Iron Mountain & Southern Railway Company v. Hydrick", "name_abbreviation": "St. Louis, Iron Mountain & Southern Railway Co. v. Hydrick", "decision_date": "1913-07-07", "docket_number": "", "first_page": "231", "last_page": "241", "citations": [ { "type": "official", "cite": "109 Ark. 231" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "100 Ark. 124", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "97 Ark. 86", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1318869 ], "opinion_index": -1, "case_paths": [ "/ark/97/0086-01" ] }, { "cite": "95 Ark. 238", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "100 Ark. 442", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "60 Ark. 485", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "65 Ark. 626", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "93 Ark. 140", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546845 ], "opinion_index": -1, "case_paths": [ "/ark/93/0140-01" ] }, { "cite": "97 Ark. 358", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1318796 ], "opinion_index": -1, "case_paths": [ "/ark/97/0358-01" ] }, { "cite": "100 Ark. 107", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312225 ], "opinion_index": -1, "case_paths": [ "/ark/100/0107-01" ] }, { "cite": "64 Ark. 251", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "72 Ind. 202", "category": "reporters:state", "reporter": "Ind.", "opinion_index": -1 }, { "cite": "104 Ind. 429", "category": "reporters:state", "reporter": "Ind.", "opinion_index": -1 }, { "cite": "76 Mo. 408", "category": "reporters:state", "reporter": "Mo.", "opinion_index": -1 }, { "cite": "70 Md. 328", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1813851 ], "opinion_index": -1, "case_paths": [ "/md/70/0328-01" ] }, { "cite": "83 Ark. 437", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1527181 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/83/0437-01" ] }, { "cite": "37 Ark. 522", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "48 Ark. 344", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "69 Ark. 636", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "opinion_index": -1 }, { "cite": "97 Ark. 632", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "85 Ark. 488", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1523279 ], "opinion_index": -1, "case_paths": [ "/ark/85/0488-01" ] }, { "cite": "70 Ark. 305", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509459 ], "opinion_index": -1, "case_paths": [ "/ark/70/0305-01" ] }, { "cite": "58 Ark. 483", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "105 Ark. 205", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347049 ], "opinion_index": -1, "case_paths": [ "/ark/105/0205-01" ] }, { "cite": "64 Ala. 240", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 5566542 ], "opinion_index": -1, "case_paths": [ "/ala/64/0240-01" ] }, { "cite": "69 Ark. 632", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725774 ], "opinion_index": 0, "case_paths": [ "/ark/69/0632-01" ] }, { "cite": "93 Ark. 214", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "80 Ark. 440", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "16 Ark. 202", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724690 ], "opinion_index": 0, "case_paths": [ "/ark/16/0202-01" ] }, { "cite": "83 Ark. 437", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1527181 ], "opinion_index": 0, "case_paths": [ "/ark/83/0437-01" ] }, { "cite": "37 Ark. 522", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "48 Ark. 344", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "105 Ark. 205", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347049 ], "opinion_index": 0, "case_paths": [ "/ark/105/0205-01" ] } ], "analysis": { "cardinality": 853, "char_count": 21133, "ocr_confidence": 0.481, "pagerank": { "raw": 1.5757820728698852e-07, "percentile": 0.6795106587295244 }, "sha256": "1e4e6dbb7a853c63aae22d899ce9055f55abade29f395dbe4cdbe5f34102d621", "simhash": "1:aac7cbe40f04ac7a", "word_count": 3715 }, "last_updated": "2023-07-14T15:57:49.083742+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "St. Louis, Iron Mountain & Southern Railway Company v. Hydrick." ], "opinions": [ { "text": "Wood, J.,\n(after stating the facts). There was no error in the ruling of the court in permitting the testimony in regard to the amount of the doctor\u2019s bills. The testimony was not hearsay, but was original evidence. One witness saw the doctor present his bill for his services. He saw what the amount was and saw the itemized bill, and there was no objection made to it by the appellee, to whom it was presented and for whom the services were rendered.\nAnother witness testified that he saw the statement rendered to Hydrick by Doctor Justis for the amount of his services. The witness says the statement was rendered to Hydrick at the request of the witness. The testimony was competent as tending to show the amount the physicians charged for their services, and the amount that appellee would have to pay for same.\nThe fact that the doctors rendered the accounts to the appellee, and that he acquiesced in the amounts thereof tends to establish the fact that appellee was indebted to the physicians for professional services in the sum of $246. Brown v. Brown, 16 Ark. 202. See also Hamilton-Brown Shoe Co. v. Choctaw Mercantile Co., 80 Ark. 440.\nThere was no prejudicial error in the ruling of the court in granting appellee\u2019s prayer for instruction No. 6. While this court, in the case of St. Louis, I. M. & S. Ry. Co. v. Steed, 105 Ark. 205, criticised a similar prayer because it did not tell the jury in specific terms that their finding as to the amount of damages must be based on the evidence, yet the court did not hold that the giving of the instruction in that ease was reversible error.\nIn Railway Company v. Cantrell, 37 Ark. 522, this court, in commenting upon a similar instruction, said that it was \u201cclearly correct.\u201d \"While such an instruction is not to be commended in form, and is open, to the objection mentioned in recent cases, yet, unless the attention of the court is specifically called to it, and the court refuses to make the correction, it can not be held that such an instruction is reversible error, and this court has not as yet reversed a case for a failure to qualify the instruction in the particular mentioned, although instructions in practically the same form as the one under consideration have often appeared in eases passed upon by this court. See L. R., M. R. & T. Ry. Co. v. Leverett, 48 Ark. 344; St. Louis, I. M. & S. Ry. Co. v. Price, 83 Ark. 437; St. Louis, 1. M. & S. Ry. Co. v. Dallas, 93 Ark. 214.\nWhile it is always better form, and the better practice, for the court to tell the jury that its findings on every issue of fact in the case must be based upon the evidence, yet where it is plain from the charge of the court, taken as a whole, that the jury were told that their findings must be based upon the evidence, the jury could not be misled nor feel authorized to make a finding that was not based upon the evidence because some separate or particular instruction omitted this precaution. The jury were sworn, in the first instance, to try the case and a true verdict render according to the law and the evidence. That being true, it is not likely that any man of sufficient intelligence to be a competent juror would feel authorized to wander beyond the evidence to find matters upon which to predicate his findings in the case. The conscientious juror would necessarily feel restrained by his oath to base his findings upon the evidence.\nIn several other instructions which the court gave, both at the instance of the appellee and the appellant, the jury were given to understand that their findings upon the particular phases presented in each of the prayers for instructions should be based upon the evidence ; and, taking the charge as a whole, the jury could not possibly have understood that they were authorized to render any finding of fact that was not warranted by the evidence.\nThis court, in McGee v. Smitherman, 69 Ark. 632, in passing upon an instruction that was challenged because it did not say that the amount of compensation \u201cshould be fixed and determined from the evidence,\u201d used this language: \u201cThere is no means by which the jury could determine what would be a fair compensation for the loss sustained by the appellee, except the evidence, and it was, therefore, plainly implied, and every intelligent juror is presumed to have understood that the jury were to be governed by the evidence.\u2019 \u2019\nMr. Thompson says that \u201cjuries are supposed to have some small trace of sense; there is a presumption that they are to find from the evidence, and, accordingly, it is not necessary to repeat this expression at every turn in the charge.\u201d\nIn other instructions in the case the court indicated to the jury that their findings must be based upon \u201ca preponderance of the evidence,\u201d and this was sufficient to prevent the possibility of their going outside of the evidence in making their verdict.\nAppellant contends that personal disfigurement w\u00e1s not an element of damages in the case, for the reason that plaintiff was a convicted felon, and sentenced to confinement in the penitentiary for eleven years, and further objects to instruction No. 6 on that ground.\nA man does not cease to be a human being because he is convicted and is imprisoned in the State penitentiary. He does not thereby necessarily lose all sense of pride and pleasure in the perfection of his physical organism. Although occupying a felon\u2019s cell, he may experience as great mental anguish over the dismemberment of his body and consequent disfigurement of his person as if'he were a free man, and the law is not so inhuman as to deny Mm compensation in damages against any one who may have negligently inflicted an injury upon him. The law makes no exceptions in such eases, against those convicted of and imprisoned for crime.\nThe court, in its sixth instruction, enumerated the elements of damage which the jury were entitled to consider, under the pleadings and evidence in the case, and the loss of earning power was not mentioned as one of these elements of damage. This charge of the court was the guide to the jury; and the remarks by counsel concerning the loss of appellee\u2019s leg must have had reference to his personal disfigurement. Indeed, the court so limited it, in response to the objection of appellant to such remarks. There was therefore no prejudicial error in the court\u2019s refusing appellant\u2019s prayer for instruction No. 10. The court having affirmatively told the jury in instruction No. 6 what elements of damage should be considered, it was not necessary to further instruct them that certain elements were not to be considered. Besides, as we have shown, the court, by its remarks, in effect, instructed the jury that there could be no recovery for loss of time or incapacity to labor. It must have been clear to the jury, from the court\u2019s remarks and his formal charge in the sixth instruction, that the loss of the leg could only be considered as an element of' damage in the way of personal disfigurement.\nThe other remarks of counsel did not transcend the bounds of legitimate argument.\nThe pain and suffering and the mental agony which plaintiff has endured, and must continue to endure, by reason of the injuries he has received, as shown by the evidence, convinces us that the amount of the verdict is not excessive.\nThe record is free from prejudicial error, and the judgment must therefore be affirmed.", "type": "majority", "author": "Wood, J.," } ], "attorneys": [ "E. B. Kinsworthy, Campbell S Suits and T. D. Crawford, for appellant.", "Stuckey \u00e9 Stuckey and Ira J. Mack, for appellee; Hal L. Norwood, of counsel." ], "corrections": "", "head_matter": "St. Louis, Iron Mountain & Southern Railway Company v. Hydrick.\nOpinion delivered July 7, 1913.\n1. Evidence\u2014proof of physician\u2019s bills.\u2014In an action- against a railroad company for damages for personal injury, it is competent to prove the amounts of physician\u2019s bills by identifying the same by witnesses and introducing the bills in evidence. (Page 238.)\n2. Damages\u2014personal injury\u2014measure of.\u2014In an action for damages against a railroad company for an injury resulting in the loss of plaintiff\u2019s leg, in the absence of a specific objection to the same, it is not reversible error to instruct the jury as to the amount of damages recoverable, that they may award damages to compensate plaintiff, for pain, suffering, and for personal disfigurement on account of th\u00e9 injury, and a reasonable sum to pay for medicine and medical treatment. (Page 241.)\n3. Instructions\u2014basis of verdict\u2014practice.\u2014While it is better form and better practice for the court to tell the jury that its findings on every issue of fact in a case must be based upon the evidence, yet when it is plain from the charge of the court, taken as a whole, that the jury were told that their findings must be based upon the evidence, the jury could not be misled or feel authorized to make a finding that was not based upon the evidence because some separate or particular instruction omitted this precaution. (Page 239.)\n4. Damages\u2014personal injuries.\u2014In an action for damages against a railroad company for injuries to plaintiff resulting in the necessity of amputating plaintiff\u2019s leg, where the court charged the jury that damages were recoverable for personal disfigurement, and gave no instruction permitting damages for loss of time, it was not error to refuse appellant\u2019s prayer for an instructions that there could he no recovery for loss of time or any incapacity to labor. (Page 241.)\nAppeal from Independence Circuit Court; R. E. Jeffery, Judge;\naffirmed.\nSTATEMENT BY THE COURT.\nOn May 17, 1912, I. P. Hydrick was a passenger on appellant\u2019s train from Newport to Swifton, Arkansas. After the train whistled for Swifton the name of the station, \u201cSwifton,\u201d was announced, and when the train stopped Hydrick left his seat to debark from the train, and when he got on the platform of the car the train pulled up with a jerk and Hydrick fell off. The train first stopped, then pulled up with a jerk, throwing Hydrick \u201cabout middleways of the depot.\u201d Hydrick\u2019s leg was so badly injured that it had to be amputated. He remained in bed on account of the injury about two months. Besides the injury to his leg, he was injured in the left foot and about his stomach. His appearance, a short time after the injury, indicated that he had suffered quite a loss of blood; he was quite thin; looked bad, and from his appearance showed that he had endured a great deal of pain.\nHe instituted this suit against the appellant, alleging that he was a passenger, and when appellant\u2019s train stopped at Swifton, his destination, he undertook to alight, and that appellant\u2019s servants suddenly jerked the train forward, producing the injury of which he complained.\nThe defendant answered, denying the allegations of the complaint and setting up affirmatively the defenses of contributory negligence and assumed risk.\nThe above are the facts in regard to the negligence of appellant and the injuries received by appellee.\nWillie Hydrick testified that the doctor\u2019s bill of Doctor Willis for attending his father was $221. He said that Doctor Willis presented his bill and it was something over $200. Appellee\u2019s counsel presented the bill to the witness and witness identified it as Dr. L. E. Willis\u2019 bill for medical and surgical attention. Counsel then offered the bill in evidence. The appellant objected. Witness was asked how much the bill showed, and answered $221.\nY. Gr. Richardson, a witness for appellee, testified that he saw a statement from Doctor Justis to Ison Hydrick for services, which the doctor wrote in his presence and handed to witness. Witness identified the statement, and read the same to the jury, as follows:\n\u201cSwifton, Ark., Nov. 5, 1912.\n\u201cMr. Ison Hydrick, Newport, Ark., in account with Dr. S. Justis. For services rendered in amputation of leg, $25. Dr. S. Justis.\u201d\nThe court overruled the objection to the above testimony and appellant saved its exceptions.\nDuring the taking of the testimony Hydrick, the plaintiff, was assisted by one of his attorneys to the witness stand in the presence of the jury, and after he was identified as the plaintiff in the case, the defendant objected to his testifying in the case.\nThe court sent the jury out of the room, and, after investigation, determined that the plaintiff was not a competent witness in his own behalf. When the jury returned into court the plaintiff was not again offered as a witness. No ruling of the court was made as to whether or not plaintiff was a competent witness, coun-. sel for the plaintiff not insisting upon his testifying.\nOne of the attorneys for the plaintiff, in his argument to the jury, stated that the jury should consider the loss of his limb and the personal disfigurement that will attend him through life. Defendant\u2019s counsel objected to the remarks and asked the court to insturct the jury that the same were improper. The court declined to so instruct the jury, \u00e1nd defendant excepted, whereupon the attorney stated further, \u201cIf they (defendant) wanted to object they ought not to have cut his leg off,\u201d and as to the latter statement, upon the objection of the defendant, the court stated that that was an improper statement and ought not to influence the jury in the case.\nAnother one of the attorneys for the plaintiff, in the course of his argument, stated: \u201cThe court tells you to bring in a verdict for the pain he has suffered; and not only that, but for the loss of the limb. \u2019 \u2019 Whereupon the defendant objected, and the court overruled the objection and declined to instruct the jury that this was improper argument, and exceptions were saved; but the court stated to the jury, \u201cNot for the loss of the leg; the disfigurement of the body.\u201d Whereupon said attorney continued: \u201cIf that is not the loss of it I don\u2019t know; you will find how he is disfigured by getting his leg cut off, and it is gone. \u2019 \u2019 Whereupon defendant objected to this statement, which objection was overruled by the court, and the court declined to instruct the jury that this was improper argument, and exceptions were saved.\nContinuing, the attorney stated: \u201cDon\u2019t bring him in a six-bit verdict; don\u2019t turn the railroad loose for \u25a0mangling this man; don\u2019t let him go through the balance of his life an object of pity and charity, but bring him in a substantial verdict; a verdict that you would like to have brought in for you if you had lost a limb; one you would believe to be just to you if you were in that attitude.\n\u201cBring in such a verdict as you believe this man is entitled to and don\u2019t be sparing with it; base it on the word \u2018just\u2019 and don\u2019t base it on the word \u2018unjust.\u2019 \u201d\nThe defendant objected to these statements and requested the court to instruct the jury that the same were improper argument. The court overruled the objection, and declined to so instruct, to which exceptions were duly saved.\nAnother one of the attorneys for appellee, in his closing argument, stated: \u201cPut yourself in the place of the railroad; if you were carrying on a business and you had some man employed and by reason of his carelessness and negligence you had to pay damages, would you keep him in your employment a moment? You wouldn\u2019t. No reasonable man would do it. If railroad companies are not individuals, they are controlled by individuals, and they would act as men would act, and they don\u2019t and ought not to keep men in their employ that would do negligent things for which they had to pay damages. That is the reason we are entitled to damages. \u201d\n\u2018 \u2018 I am appealing to you as reasonable men. I know my Brother Campbell (defendant\u2019s attorney) wouldn\u2019t want this case reasoned out. T am reasoning this case. I am giving you my reasons for my contentions in this matter. If these railroad men were to come and say they were negligent, their employer would have to pay damages, and, of course, their employer would hold them responsible. Of course, they are excusing themselves. . Whenever one does a thing that injures another, he always tries to excuse himself and throw it on the other fellow.\n\u201cDoctor Willis\u2019 bill was $221; Doctor Justis\u2019 bill for assisting in the amputation of the foot was $25; that is ' $246; and there is $3 for medicine that we can account for; that is $249 actual expenses.\n\u201cPut that\u2019onto what you say a man ought to have that has lost his foot by reason of the negligence of somebody else; that suffers pain in the loss of that foot, the mashing of the other, the wounding of the stomach; still suffers pain; and say what would you have it done to you for, what would you want, and then fix his damages in accordance with that.\u201d\nDefendant objected to each of the above statements and requested the court to instruct the jury that same were improper, but the court overruled the objections, declined to so instruct, and the defendant duly excepted.\nAt the request of the plaintiff the court granted the following prayer:\n\u201c6. If you find for the plaintiff, when you come to fix the amount of damages he should recover in this case, you will give him such sum of money as you may believe will compensate him for such pain as he has suffered on account of the injury; such further sum as you believe will compensate him for his personal disfigurement, occasioned by the injury; and give him such other sum of money as may reasonably be necessary to pay for the medicine and medical treatment he has been required to have on account of the injuries received.\u201d\nThe appellant duly excepted to the ruling of the court in granting this prayer.\nThe following prayer was presented by the appellant, which the court refused, and to which appellant duly excepted, towit:\n\u201c10. If you should find for the plaintiff, there could be no recovery for any loss of time or any incapacity to labor. That is not to be considered by you.\u201d\nThe jury returned a verdict for plaintiff in the sum of $7,749. Judgment was entered for that sum, and this appeal has been duly prosecuted.\nE. B. Kinsworthy, Campbell S Suits and T. D. Crawford, for appellant.\n1. It was error to permit the witnesses, Hydrick and Richardson, to testify with reference to the bills of Doctors Willis and Justis. Kirby\u2019s Digest, \u00a7 3151, does not apply in a suit of this kind where the- amount of the account is a collateral matter, but, if applicable, it was not complied with, as the accounts were not verified.\nThe mere production of an account does not establish its correctness, and the defendant need not offer evidence in defense until some testimony is produced by the plaintiff tending to show the correctness of the account. 64 Ala. 240.\n2. Instruction 6 was erroneous in that it did not limit the jury to the testimony in forming their belief as to the amount of damages. 105 Ark. 205.\n3. The cause should be reversed for improper argument and misconduct of counsel for plaintiff and because the verdict was excessive. \u201cLoss of time\u201d was not an element of damage, plaintiff being at the time of the trial a .convicted felon under sentence of eleven years in the penitentiary, which was well known to his counsel. It was improper to make profert of him by assisting him to the witness stand in the presence of the jury. The element of personal disfigurement, while proper under ordinary circumstances, was not a proper element of damages in this case, and should not have been .included in instruction 6.\nIf all the objections to the improper argument of counsel had been sustained, and timely admonition and rebuke of counsel had been administered by the court, yet the prejudicial effect could not have been removed. 58 Ark. 483; 70 Ark. 305.\nStuckey \u00e9 Stuckey and Ira J. Mack, for appellee; Hal L. Norwood, of counsel.\n1. Appellee was immediately withdrawn from the witness stand npon objection to his competency being sustained, and no objection was made nor ruling asked for or given as to the alleged \u201cprofert\u201d of the witness. Because he was under sentence is no reason why he was barred from sitting in the presence of the jury. Objectionable matter is waived unless objection is made at the time and pressed to a ruling and properly preserved in the motion for \u00e1 new trial. 85 Ark. 488; 97 Ark. 632, and cases there cited.\n2. Instruction 6 is correct. It was. not necessary to repeat the words \u201cfrom the evidence\u201d to the jury, who had taken the oath prescribed by law, and knew not only from that but also from the instructions given, taken as a whole, that their finding must be based upon the evidence. Kirby\u2019s Dig., \u00a7 4530; 69 Ark. 636; 48 Ark. 344;' 37 Ark. 522; 83 Ark. 437; 2 Thompson on Trials, (2 ed.), \u00a7 2318; 70 Md. 328; 76 Mo. 408; 104 Ind. 429; 72 Ind. 202-3; 77 111. 312; 78 111. 302; 174 111. 560; 64 Ark. 251; 100 Ark. 107; 97 Ark. 358; 93 Ark. 140.\nPersonal disfigurement was a proper element of damages. 69 Ark. 636; 65 Ark. 626; 83 Ark. 437; 60 Ark. 485'; 13 Cyc. 43. And the fact that plaintiff was under sentence to the penitentiary would not detract from this right to recover for pain and disfigurement. Art. 2, \u00a7 17, Const. Ark.\n3. Appellant\u2019s contention that the cause should be reversed for misconduct of counsel is not tenable. The trial court had the opportunity to see and hear all that was done and said, and the wide discretion inherent in that court in such cases ought not to be interfered with by this court in this case. 100 Ark. 442; 95 Ark. 238; 97 Ark. 86; 100 Ark. 124." }, "file_name": "0231-01", "first_page_order": 249, "last_page_order": 259 }