{ "id": 1459801, "name": "St. Louis Southwestern Railway Company v. Braswell, Administrator", "name_abbreviation": "St. Louis Southwestern Railway Co. v. Braswell", "decision_date": "1939-04-24", "docket_number": "4-5413", "first_page": "143", "last_page": "149", "citations": [ { "type": "official", "cite": "198 Ark. 143" }, { "type": "parallel", "cite": "127 S.W.2d 637" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "210 S. W. 346", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "138 Ark. 175", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1566922 ], "opinion_index": 0, "case_paths": [ "/ark/138/0175-01" ] }, { "cite": "104 S. W. 1114", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "84 Ark. 241", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1524530 ], "opinion_index": 0, "case_paths": [ "/ark/84/0241-01" ] }, { "cite": "41 S. W. 2d 760", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "184 Ark. 82", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1438504 ], "opinion_index": 0, "case_paths": [ "/ark/184/0082-01" ] }, { "cite": "165 S. W. 627", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "112 Ark. 607", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "56 S. W. 46", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "68 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1333967 ], "opinion_index": 0, "case_paths": [ "/ark/68/0001-01" ] }, { "cite": "146 S. W. 482", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "103 Ark. 361", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1352017 ], "opinion_index": 0, "case_paths": [ "/ark/103/0361-01" ] }, { "cite": "215 S. W. 265", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "140 Ark. 147", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1594396 ], "opinion_index": 0, "case_paths": [ "/ark/140/0147-01" ] }, { "cite": "43 S. W. 2d 753", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "184 Ark. 614", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1438637 ], "opinion_index": 0, "case_paths": [ "/ark/184/0614-01" ] }, { "cite": "281 S. W. 910", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "170 Ark. 842", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1371597 ], "opinion_index": 0, "case_paths": [ "/ark/170/0842-01" ] }, { "cite": "292 S. W. 386", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "173 Ark. 135", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719229 ], "opinion_index": 0, "case_paths": [ "/ark/173/0135-01" ] }, { "cite": "266 S. W. 281", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "166 Ark. 389", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1378516 ], "opinion_index": 0, "case_paths": [ "/ark/166/0389-01" ] }, { "cite": "109 S. W. 2d 1254", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 938", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725525 ], "opinion_index": 0, "case_paths": [ "/ark/194/0938-01" ] } ], "analysis": { "cardinality": 751, "char_count": 12251, "ocr_confidence": 0.477, "pagerank": { "raw": 4.057978940029474e-07, "percentile": 0.90802533275106 }, "sha256": "5b5b303d51d6d002d109c8a093bed632c3968d2fe6eab745f8f6ee3c80e5e4ee", "simhash": "1:23ade824f80fc399", "word_count": 2124 }, "last_updated": "2023-07-14T20:30:03.341287+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mehafey and Humphreys, JJ., dissent." ], "parties": [ "St. Louis Southwestern Railway Company v. Braswell, Administrator." ], "opinions": [ { "text": "Grieein Smith, C. J.\nThe appeal presents three questions. First, was there support for the jury\u2019s finding that appellants\u2019 engineer could and should have discovered the perilous position of appellee\u2019s intestate in time to have averted injury if the statutory lookout had been kept? Second, did the injured man experience conscious suffering? Third, is the judgment for funeral expenses supported .by law?\nAppellee, administrator of the estate of F. J. Bras-well, alleged the negligent killing of the intestate (his father), who at the time of the accident was 79 years of age. The only eye-witness was John Kennedy. He testified that he was engineer of appellants \u2019 passenger train out of Texarkana; that the automatic bell was in operation and the whistle was being- blown. In. rounding'' a curve \u201cto the right\u201d witness observed a man lying with his head on the right rail, his feet and body extending at right angle to the track. The prostrate man was first seen when the train was about 200 feet distant, a small embankment and a few bushes having prevented an earlier or a clearer view. Steam was shut off, the alarm was sounded, and brakes were put into emergency. Rate of speed ivas 40 or 45 miles an hour. The prone man\u2019s back was to the engine. When a stop was made the rear end of the train was about a car length past the body.\nThe engineer walked back to where the injured man was lying near the steps of the Cotton Belt station. Kennedy testified that \u201cFrom the time the train struck Mr. Braswell until I came back to where his body was lying was about three or four minutes.\u201d\nAgain testifying, Kennedy said \u201cIt wasn\u2019t over two minutes when I got there. . . . [Mr. Braswell] was unconscious when I got there. ... I would say he w\u00e1s living, but he was unconscious. ... He was breathing hard, but never spoke.\u201d\n\u201cQ. If a man doesn\u2019t speak to you, do you think he is unconscious? A. No, but when he is hurt and knocked like he was, I came to the conclusion that he was unconscious. ... It was not over six or seven minutes until the people came and moved him to the hospital.\u201d\nA'photograph taken by appellant\u2019s claim agent was introduced in evidence. Certain points are identified from which distances may be estimated. We think this photograph, and testimony of the witness Orr, presented a question for the jury: that is, evidence was substantial to show that if a proper lookout had been kept Braswell\u2019s perilous position would have been discovered in time to have prevented the accident. The stop was made within approximately 700 feet, and there is evidence that the prone body could have been seen at a distance of 900 feet,' in spite of the curve and obstructions.\nWe agree with appellee that the engineer\u2019s statement that the injured man was unconscious, must be considered in the light of the reasons given for the belief. On cross-examination this witness stated it was about three or four minutes after the accident until he got back to the body. Considering the nature of the injury, the position of the body when struck, and the fact that the injured man did not speak, although he was breathing hard, the engineer concluded that the condition was one of unconsciousness.\nAppellee alleged conscious pain and suffering, and therefore had the burden of proving the fact, either by direct or circumstantial evidence. The question is, Was that requirement met ? We do not think it was.\nAppellee directs attention to a number of our decisions and insists that the principles therein announced are applicable here.\nIn Missouri Pacific Railroad Company et al. v. Maxwell it was said that \u201ca father should recover a reasonable compensation for the loss of [an inf ant. son\u2019s services], less the reasonable expenses of rearing the child. The funeral expenses amounted to about $250, and there is some evidence in the case that the child was not immediately killed, in which event its suffering must have been great.\u201d There is only a general statement in the opinion as to the purport of the evidence, without setting out in any particular what such evidence was, touching upon the issue of pain and suffering.\nRecovery for pain and suffering was allowed in St. Louis Southwestern Railway Company v. Rogers; in Ashcraft v. Jerome Hardwood Lumber Company; in St. Louis-San Francisco Railroad Company v. Pearson; in Arkansas Light & Power Company v. Adcock; in Central Coal & Coke Co. v. Burns, and in St. Louis, I. M. & S. Railway Company v. Robertson. These cases are cited by appellee in support of his contention that the evidence was sufficient to warrant the jury in finding there was conscious suffering. In each of the cited cases, however, there was some expression or action showing coordination of mind and body.\nIn the Rogers Case, an injured brakeman turned over on his right side and exclaimed, \u201c0, Lord.\u201d This occurred some minutes after the accident.\nIn the'Ashcraft Case the workman lived thirty minutes. He \u201cgasped and groaned, and blood came out of his mouth.\u201d\nIn the Pearson Case the injured fireman lived about ten minutes. He was \u201cbreathing hard. He moved his mouth and tongue, and his chest made a few moves; he was struggling a little.\u201d\nIn the Adcock Case a minor was injured by an electrically charged wire. After receiving the shock he exclaimed \u201c0, me,\u201d as many as two times. After reaching the ground the young man tried to get-up on his hands and knees, \u201cthen moved his arms and legs.\u201d\nIn the Burns Case \u00e1 mine worker, after receiving an injury, was heard to cry out, and his associates found him in contact with live wires. The opinion points out that it was fairly inferable he lived fifteen minutes.'\u201cAfter being pulled away from the wires he moved on his all fours and tried to talk and vomit, but could not do either. \u2019 \u2019\nIn. the Robertson Case the railway conductor shoved Clint. Ruff (an alleged passenger) in such manner that Ruff fell from a freight car into Walnut Lake and was drowned. A physician testified he knew Ruff; was at Walnut Lake the night he was killed; that Ruff died from drowning; that a man falling into the water would possibly be conscious two or three minutes.\nIn the instant ease, H. C. Hay of the East Funeral Home, testified that there were no marks on the decedent\u2019s body\u2014\u201cit was just on his head; . . . there was a bad lick in the back of the head; what seemed to be a fracture. I believe it was on the left side of the head, [but] it might have been in the center. . . . His nose seemed to be broken and there ivas a deep cut. There was blood all over his face. The lick on his head, I think, killed him. \u2019 \u2019\nBooks on evidence, and the cases, have much to say about \u201cspeculation,\u201d and \u201cconjecture.\u201d It is urged by those who adhere to the theory that the reasonableness of testimony, the probability of its truthfulness, the conclusions to be drawn from it, the inferences attaching to physical conditions and to the attending circumstances, are matters for sole consideration of the finders of facts, and that a verdict based upon any evidence found by a jury to be sufficient to sustain its actions, should not be disturbed on appeal.\nThe difficulty is in differentiating between any evidence and substantial evidence.\nAll judges, both trial and appellate, agree that to support a verdict the evidence must be of a convincing nature, imparting the qualities of reasonable certainty. But shall we say that in respect of such evidence the questions of certainty, of reasonableness, and of substantiality, are conclusively presumed from the verdict alone?\nMust appellate judges close their eyes and their minds to the obvious fact that in a particular case the evidence, from its very nature, could not have been convincing, though it produced a given result? Shall we affirm that such evidence was necessarily substantial because it was favorably acted upon by the jury?\nBoth in theory and in practice, jurors who have been privileged to observe the witnesses, and to mark their demeanor on direct and cross-examination and under questioning- of the court, are better qualified to separate truth from falsity than are judges who later examine the record for errors. The juror\u2019s situation enables him to analyze motives, to consider and compare interests and prejudices, and to weigh the relative importance of the testimony. He may apply to the issues all conclusions to be reasonably drawn from what has been said or exhibited. He may study actions and attitude, and he may mentally note and act upon what a witness has failed to say, but what has been revealed through conduct.\nBut in that twilight zone where a scintilla of evidence meets substantial evidence, and where they sometimes blend, jurors and judges alike find a realm of uncertainty.\nIt is difficult\u2014even impossible\u2014to lay down a constant applicable rule. Therefore, we say that on appeal all reasonable inferences should be resolved in favor of the verdict. With this pronouncement we have completed the commentary circuit, and find ourselves at the starting point of the discussion.\nIt would seem, however, that in any view to be taken, the issues are whether the evidence is substantial, and who is to judg*e of that quality. If this is not a question of law, then substantiality loses its significance, with the result that any testimony may suffice. If we acquiesce in this construction, there is an abdication of judicial responsibility.\nApplying the foregoing principles to the case at bar, we are unable to find that conscious suffering was shown by substantial testimony.\nFinally, it is insisted that the verdict and judgment for funeral expenses are not supported by law.\nAppellants objected to Instruction No. 4, generally and specifically. The objection admits there was sufficient evidence to sustain the verdict complained of.\nThe judgment for $235 is affirmed. The judgment for conscious pain is reversed, and the cause of action therefore is dismissed.\nMehafey and Humphreys, JJ., dissent.\n194 Ark. 938, 109 S. W. 2d 1254.\n166 Ark. 389, 266 S. W. 281.\n173 Ark. 135, 292 S. W. 386.\n170 Ark. 842, 281 S. W. 910.\n184 Ark. 614, 43 S. W. 2d 753.\n140 Ark. 147, 215 S. W. 265.\n103 Ark. 361, 146 S. W. 482.\nCompare St. Louis, Iron Mountain & Southern Railway Company v. Dawson, 68 Ark. 1, 56 S. W. 46; Chicago, Rock Island & Pacific Railway v. White, 112 Ark. 607, 165 S. W. 627; Delamar & Allison v. Ward, 184 Ark. 82, 41 S. W. 2d 760; St. Louis, I. M. & S. Ry. Co. v. Stamps, 84 Ark. 241, 104 S. W. 1114; Memphis, Dallas & Gulf Railroad Company v. Thompson, 138 Ark. 175, 210 S. W. 346.\nInstruction No. 4: \u201cIf you find for the plaintiff under the instructions in this case, then you should assess the damages to be recovered for the benefit of the estate of P. J. Braswell, deceased, at such amount as would reasonably have compensated him for the injuries suffered by him in his lifetime, as a result of such injuries, and in this connection you should take into consideration the pain and suffering, mental and physical, if any, as shown by the evidence, Of the said F. J. Braswell prior to his death; and you should assess the damages to be recovered for the benefit of the next of kin of the said F. J. Braswell at such sum of money as you may find from the evidence will be fair and just compensation with reference to the pecuniary injuries, if any, resulting from the death of F. J. Braswell to next of kin.\u201d\nThe objections were: \u201cDefendants objected generally to the action of the court in giving plaintiff\u2019s requested Instruction No. 4, and at the same time objected specifically to the giving of said Instruction No. 4 because there is not sufficient evidence in the record to justify a recovery for conscious pain, and because the testimony fails to show there was any conscious pain and suffering; and the instruction is erroneous on the measure of damages for the benefit of the next of kin because there is not sufficient evidence to sustain a verdict for the benefit of the next of kin except for the amount of funeral expenses.\u201d", "type": "majority", "author": "Grieein Smith, C. J." } ], "attorneys": [ "A. II. Kishaddon, G. S. Ilaclley and Gaughan, McClellan and Gaughan, for appellant.", "Willis B. Smith and Ben E, Carter, for appellee." ], "corrections": "", "head_matter": "St. Louis Southwestern Railway Company v. Braswell, Administrator.\n4-5413\n127 S. W. 2d 637\nOpinion delivered April 24, 1939.\nA. II. Kishaddon, G. S. Ilaclley and Gaughan, McClellan and Gaughan, for appellant.\nWillis B. Smith and Ben E, Carter, for appellee." }, "file_name": "0143-01", "first_page_order": 159, "last_page_order": 165 }