{ "id": 1467074, "name": "St. Louis-San Francisco Railway Company, Thompson, Trustee v. Perryman", "name_abbreviation": "St. Louis-San Francisco Railway Co. v. Perryman", "decision_date": "1948-05-24", "docket_number": "4-8400", "first_page": "550", "last_page": "563", "citations": [ { "type": "official", "cite": "213 Ark. 550" }, { "type": "parallel", "cite": "211 S.W.2d 647" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "198 Ark. 1110", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1459739 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/198/1110-01" ] }, { "cite": "116 S. W. 2d 1051", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "196 Ark. 147", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1462359 ], "opinion_index": 0, "case_paths": [ "/ark/196/0147-01" ] }, { "cite": "108 S. W. 2d 579", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 405", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721145 ], "opinion_index": 0, "case_paths": [ "/ark/194/0405-01" ] }, { "cite": "212 Ark. 287", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1470279 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/ark/212/0287-01" ] }, { "cite": "201 Ark. 432", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721190 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/201/0432-01" ] }, { "cite": "199 Ark. 1035", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456501 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/199/1035-01" ] }, { "cite": "203 Ark. 1111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1446934 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/203/1111-01" ] }, { "cite": "205 Ark. 28", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1488170 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/205/0028-01" ] }, { "cite": "199 Ark. 520", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456499 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/199/0520-01" ] }, { "cite": "233 S. W. 816", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "150 Ark. 19", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1367848 ], "opinion_index": 0, "case_paths": [ "/ark/150/0019-01" ] }, { "cite": "200 Ark. 1181", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453407 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/200/1181-01" ] }, { "cite": "10 S. W. 2d 894", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "178 Ark. 103", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1396939 ], "opinion_index": 0, "case_paths": [ "/ark/178/0103-01" ] }, { "cite": "197 Ark. 319", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719891 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/197/0319-01" ] }, { "cite": "3 N. J. Misc. 1006", "category": "reporters:state", "reporter": "N.J. Misc.", "case_ids": [ 439676 ], "opinion_index": 0, "case_paths": [ "/nj-misc/3/1006-01" ] }, { "cite": "130 Atl. 44", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "5 N. J. Misc. 274", "category": "reporters:state", "reporter": "N.J. Misc.", "case_ids": [ 730316 ], "opinion_index": 0, "case_paths": [ "/nj-misc/5/0274-01" ] }, { "cite": "136 Atl. 332", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "270 S. W. 519", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "168 Ark. 440", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722704 ], "opinion_index": 0, "case_paths": [ "/ark/168/0440-01" ] }, { "cite": "137 S. W. 829", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "99 Ark. 167", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1314518 ], "opinion_index": 0, "case_paths": [ "/ark/99/0167-01" ] }, { "cite": "46 S. W. 2d 628", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "185 Ark. 196", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1435144 ], "opinion_index": 0, "case_paths": [ "/ark/185/0196-01" ] }, { "cite": "82 S. W. 245", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "72 Ark. 572", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505607 ], "opinion_index": 0, "case_paths": [ "/ark/72/0572-01" ] }, { "cite": "110 S. W. 2d 516", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 884", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725296 ], "opinion_index": 0, "case_paths": [ "/ark/194/0884-01" ] }, { "cite": "204 Ark. 604", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1444108 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/204/0604-01" ] }, { "cite": "1 Ark. 83", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728365 ], "opinion_index": 0, "case_paths": [ "/ark/1/0083-01" ] } ], "analysis": { "cardinality": 1063, "char_count": 26272, "ocr_confidence": 0.503, "pagerank": { "raw": 8.973430480977862e-08, "percentile": 0.5024132681094535 }, "sha256": "6f782c8bcefda759ef73547c4ade8526fe2e6b942f2ecdcbf3c67cefc9711c82", "simhash": "1:c04cacc2220782b2", "word_count": 4706 }, "last_updated": "2023-07-14T14:58:24.264428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "St. Louis-San Francisco Railway Company, Thompson, Trustee v. Perryman." ], "opinions": [ { "text": "Ed. F. McFaddin, Justice.\nThis appeal stems from a grade crossing collision between a railroad engine and an automobile, the latter occupied by six boys.\nOn Sunday morning, June 23, 1946, the six boys drove in a 1936 two-door Ford sedan to a swimming hole on Frog Bayou in Crawford county. The car was owned by a member of the family of Roosevelt Foster, one of the boys, aiid he had invited the other five to go with him. On their return trip, and while Roosevelt Foster was driving, there occurred the grade crossing collision which resulted in the death of one of the boys (Tommy Perryman, aged 14), and the injuring of Roosevelt Foster, aged 16, and Voile Ray Aldridge, aged 13. These three boys were in the front seat of the ear. Insofar as the record here shows, the three boys in the back seat were not injured. They were Lawrence Perryman, aged 16; William Thacker, aged 16; and Bennie Jean Perryman, whose age is not stated.\nThree actions filed against the St. Louis-San Francisco Railway Company (Frank A. Thompson, Trustee) were \u2014 by consent- \u2014 consolidated for trial, and resulted in verdicts as follows:\n1. \u25a0 James T. Perryman, administrator of tlie estate of Tommy Perryman, $25;\n2. James T. Perryman, father of Tommy Perry-man, for loss of services of the minor, $5,000;\n3. Voile Ray Aldridge, for his pain, suffering and injuries, $10,000;\n4. J. J. Aldridge, father of Voile Ray Aldridge, for loss of services of the minor, $1,000;\n5. Roosevelt Foster, for his pain, suffering and injuries, $100;\n6. Mrs. Nancy Foster, mother of Roosevelt Foster, for the loss of services of the minor, $400; and\n7. The defendant railroad company, as against the interveners, George Foster and the Federal Union Insurance Company for damages to the car.\nFrom an unavailing motion for new trial against the judgments on the first six verdicts, appellant brings this appeal. The briefs of both sides contain 465 printed pages, and the transcript contains 506 typewritten pages. We list and discuss appellant\u2019s argued assignments.\nI. Appellant Says, \u201cNo Actionable Negligence Was Proved, and Plaintiffs Were Not Entitled to Recover.\u2019\u2019 The only allegations of defendant\u2019s (appellant\u2019s) negligence relied on by the plaintiffs (appellee) were: (1) the failure to sound the bell or whistle, and (2) excessive speed of the train. Several witnesses testified that neither the whistle nor the bell was sounded for the crossing, as required by law. (\u00a7 11135, Pope\u2019s Digest.) For instance, the disinterested witness, H. B. Simmon, testified:\n\u201cQ. Did you or not liear the train whistle at that time? A. No, sir, there was no train whistle at this crossing. Q. 'Were you near enough to hear one if it had whistled? A. Yes, sir. Q. And you state that it didn\u2019t whistle as it approached the crossing? A. No, sir. Q. Did you or not hear the bell ring? A. No, sir. Q. You didn\u2019t hear a bell ring or a whistle blow? A. No, sir, I heard the engine puff. \u2019 \u2019\nJim Kinner, another disinterested witness, testified :\n\u00a3 \u00a3Q. How far away would you say he whistled? From this crossing? A. Close to a half-mile. Q. Did the train ever whistle any more? A. No, sir. Q. Did a bell ever ring from that time on? A. No, sir. Q. If it had done so, would you have heard it or not? A. Yes, sir. Q. Did you see the train? A. Yes, sir. Q. I wish that you would tell the jury how fast that train was going. A.. In my judgment it was running 50 miles an hour. \u2019 \u2019\nEven if we disregard the evidence about the speed of the train, nevertheless, we must conclude that there was substantial evidence that the statutory signals were not given. But, says the appellant, failure to give the statutory signals was not the cause of the collision, because the boys could have seen and heard the train if they had looked or listened, and such knowledge would have made the signals unnecessary. On this point appellant cites and relies on such cases as': Mo. Pac. R. Co. v. Hood, 199 Ark. 520, 135 S. W. 2d 329; Mo. Pac. R. Co. v. Dennis, 205 Ark. 28, 166 S. W. 2d 886; Mo. Pac. R. Co. v. Doyle, 203 Ark. 1111, 160 S. W. 2d 856; Mo. Pac. R. Co. v. Moore, 199 Ark. 1035, 138 S. W. 2d 384; Crosset Lumber Co. v. Cater, 201 Ark. 432, 144 S. W. 2d 1074; and other earlier cases cited in those above listed.\nAppellant\u2019s contention makes necessary a description of the highway and railroad track. For the purpose of this opinion, we treat the railroad track as running from south to north. The gravel highway from the south ran parallel and east of the railroad track to the crossing here involved, and then after a sweeping-curve the gravel highway ran north, parallel to and west of the railroad track. The train was going from south to north, and the automobile was traveling from north to -south. Thus, the car was approaching the crossing from the west, and struck the engine slightly back of the cowcatcher. Taking the route traveled by the car from the swimming hole to the crossing, there was a long curve going south and east to the crossing. When the \u25a0 automobile was about 80 feet from the crossing, the highway ran practically due east to the crossing. Some evidence tended to show that from 50 to 65 feet west of the crossing there was nothing to obstruct the view, or to keep the boys from seeing the train as it approached from the south.\nDid the boys in the car see and hear the train, or know of its approach so as to make the statutory signals unnecessary? It is claimed that Roosevelt Foster, driver of the car, on the day after the collision, gave a written statement to the railroad claim agent, which read in part:\n\u201cThe road is of gravel and when around 400 feet west of the crossing, we were traveling east to the track and coming around the curve, and we were all talking and laughing about a ball game, proceeding about 15 miles per hour. I was looking to my left or the north as (I) came to the track and did not see or hear the train. I can see and hear good. The first I looked to my right or south, was when my car was about 15 feet from the track and had slowed the car down to 10 or 12 miles per hour. I then looked to my right and saw the train on the track and it was about 2 or 3 box car lengths south of the crossing. I went for my brakes, but they did not hold good and I then got the car in low gear, don\u2019t know whether I put it in reverse or not, but was doing this to get the car stopped. \u2019 \u2019\nBut at the trial Roosevelt Foster repudiated this statement, and testified: \u201cQ. As you approach that crossing state whether or not there was any interference with your view of the track: was there anything to keep you from seeing the track? A. Yes, sir. Q. What was it? A. A big sweet gum tree. Q. Was that on your right or left? A.- It was on my right. Q. At that time it was to the south of you? A. Yes, sir. Q. Did you or not look down that way or attempt to look down that way? A. I looked. Q. Did you see any train or not? A. I didn\u2019t, I couldn\u2019t. Q. Was there anything except the sweet gum to cut off your view? A. There were some sprouts. Q. Which direction were they from the tree? A. They were farther south. Q. Tell the jury whether or not you heard or saw any train coming? Did you or not look and listen for a train? A. Yes, sir.\u201d\nAnd, again:\n\u201cQ. Did you hear any train whistle as you approached the crossing? A. No, sir. Q. Did a train whistle as you approached the crossing? A. No, sir. Q. Did you hear a bell ring? A. No, sir.\u201d\nFurthermore, it is claimed that Voile Ray Aldridge gave a signed statement to the railroad claim agent some time after the collision, in which statement the following appears:\n\u201cAs we approached the track, I don\u2019t know how fast we were moving, but we were all talking as going to have a ball game that afternoon. As we came to the track we heard, or I did, the train whistling, but I thought it was coming from the north, and I looked that way as coming to the track. The first I knew it was coming from the other direction was as our car got to the edge of the woods on west side of track and to our right \u2014 don\u2019t know how many feet back that is, but seemed pretty close to the track. I don\u2019t know just how far the train was to my right, but seemed awfully close to crossing. I don\u2019t recall whether anyone called to Rosie to stop or not, and don\u2019t remember whether I did or not. I don\u2019t recall hitting the train, and don\u2019t know where we hit it. I don\u2019t recall anything after that, as the next thing I knew I was in hospital at Fort Smith. I don\u2019t recall whether the bell was ringing or not, but did hear it whistling as we approached crossing, and thought it was coming from our left, or from the north.\u201d\nBut at the trial Voile Ray Aldridge testified: \u201cQ. As you came to the crossing of the road with the railroad, did you or not hear a train whistle or a bell ring? A. No, sir. Q. Were you looking or listening, Voile Ray, or not? A. Yes, sir. Q. As you approached the crossing, did you or not have a clear view of the track, or was there something to obstruct your view? A. There was a big sweet gum tree. Q. Were there leaves on the tree.at that time?- A. Yes, sir.\u201d\nUnder this assignment appellant also argues that the cause of the collision was not the railroad\u2019s failure to give the statutory signals, but, rather, the absence of brakes on the car. The appellant introduced the alleged signed statement of Roosevelt Foster, in which this appears: \u201cI went for my brakes, but they did not hold good and I then got the car in low gear, don\u2019t know whether I put it in reverse or not, but was doing this to get the car stopped. I don\u2019t know where the train hit the car or where we hit the train. The brakes would hold part of the time, but would take some time to stop it.\u201d\nBut, as before mentioned, at the trial Roosevelt Foster repudiated the signed statement, and testified that the brakes were working. This appears: \u201cQ. Don\u2019t you know that you put it in reverse because the brakes were not working? A. No, sir, they were working. Q. If anybody else says that they were not working, then they are just mistaken about it? A. Yes, sir.\u201d\nFurthermore, Yoile Ray Aldridge was interrogated on cross-examination about the brakes, and gave answers as follows: \u201cQ. The brakes on that car were not very good? A. They were pretty good brakes. Q. Don\u2019t you know that you were having trouble with the brakes and the car wouldn\u2019t stop because it didn\u2019t have good 'brakes, don\u2019t you recall that? A. No, sir.\u201d\nIt is thus clear that the testimony of the witnesses at the trial was a repudiation of their previous statements; and the testimony at the trial, if believed by the jury, was sufficient not only to repudiate the statements, but to establish that the boys did not know of the approach of the train until shortly before striking the engine; and also that a question of fact was presented as to the brakes on the car. See St. L. S. F. Ry. v. McCarn, 212 Ark. 287, 205 S. W. 2d 704. It is not for the judges of this court to determine whether the signed statements are more trustworthy than the testimony from the witness stand. That is a matter for the jury, which is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Mo. Pac. Transp. Co. v. Sharp, 194 Ark. 405, 108 S. W. 2d 579; Washington County v. Day, 196 Ark. 147, 116 S. W. 2d 1051; and Mo. Pac. Transp. Co. v. George, 198 Ark. 1110, 133 S. W. 2d 37. In the early case of PLynson v. Terry, 1 Ark. 83, this court in the first year of our statehood said: \u201cIt is the province of the jury to weigh and compare the testimony and to apply the facts to the principles given them in charge by the court. \u2019 \u2019\nSo, it is clear that the question, whether the failure to give the statutory signals was actionable negligence in this case, was a matter for the jury under the testimony as presented. It would serve no useful purpose to try to point out how the facts in this case differ from or agree with the facts in previous cases involving grade crossing collisions, because each case has its own peculiar set of facts. The pole star for this court on appeal is, whether there was substantial evidence to take the case to the jury on the question of actionable negligence. We have sketched here only a portion of the evidence, but a portion sufficient to show that a jury question was made on the issue of actionable negligence, i. e., failure of the railroad to give the statutory signals as being the cause of the collision.\nII. Appellant Says, \u201cThe Driver and Occupants of the Car Were Guilty of Contributory Negligence, and Plaimtiffs Cannot Recover.\u201d This issue of contributory negligence of the boys is closely akin to the issue of the defendant\u2019s actionable negligence, heretofore discussed. The relationship of the two issues is this: contributory negligence, just as the actionable negligence of the defendant, is a question for the jury, if substantial evidence be introduced on such issue. Furthermore, in railroad crossing cases contributory negligence is not an absolute defense, but only a \u201cmeasuring and reducing\u201d defense. (Section 11153, Pope\u2019s Digest, as amended by Act 140 of 1945, and see cases cited in West\u2019s Arkansas Digest, \u201cRailroads,\u201d \u00a7 350(13).)\nIn the present case the court submitted to the jury,. in defendant\u2019s instructions 31 and 32, the question of whether the boys in the car were engaged in a joint enterprise, and the jury verdicts constitute a negative answer to that question. In this state of the record, there was no joint enterprise; and the negligence of' the driver of the car is not imputed to the other occupants. Mo. Pac. R. Co. v. Johnson, 204 Ark. 604, 164 S. W. 2d 425; Mo. Pac. R. Co. v. Henderson, 194 Ark. 884, 110 S. W. 2d 516; Hot Springs St. Ry. Co. v. Hildreth, 72 Ark. 572, 82 S. W. 245; and other cases collected in West\u2019s Arkansas Digest, \u201cNegligence,\u201d \u00a7 93. The only duty of the occupants of the car \u2014 other than the driver \u2014 was to comply with the ordinary \u201cstop, look and listen\u201d rule, as announced by our cases. In St. L. S. F. Ry. Co. v. Steele, 185 Ark. 196, 46 S. W. 2d 628, we said, of a guest in an automobile approaching a railroad crossing: \u201cThe testimony showed that appellee was riding in the car with the Negro as a guest by his own invitation, it is true, but any negligence of the owner or driver of the car cannot be imputed to him, although he was bound to the exercise of ordinary care for his own safety under the circumstances, . . . See, also, 5 Am. Juris. 776, and cases there cited.\nAs previously mentioned, our comparative negligence statute (\u00a7 11153, Pope\u2019s Digest, amended by Act 140 of 1945) provides that contributory negligence is not an absolute defense, but is only for proportional diminishing of recovery. So, even if the driver and occupants were guilty of contributory negligence, still, if the railroad company was guilty of actionable negligence greater than the contributory negligence, then it was for the jury to diminish the recovery in porportion to such contributory negligence. Whether the driver and occupants were guilty of contributory negligence, is a disputed question of fact under the evidence in this case, and was properly submitted to the jury. The language of Mr. Justice Fratjenthal in Ark. Central Ry. v. Williams, 99 Ark. 167, 137 S. W. 829, is apropos:\n\u201cBlit where the evidence is conflicting, the question as to whether or not the traveler at the public crossing did look and listen for an approaching train before reaching the crossing, and whether or not he did continue with vigilance and care until the point of danger was past, is ordinarily one of fact for the jury to determine. Unless the evidence is either uncontradicted or is indisputable, to the effect that he did not look and listen, the verdict of a jury finding that the traveler did so look and listen should not he set aside as a matter of law. \u2019 \u2019\nIII. Appellant Says, \u201cThe Verdicts Are Inconsistent and the Judgments Should Be Reversed.\u2019\u2019 Originally, Mrs. Nancy Foster; mother of Roosevelt Poster, claimed that she was the owner of the automobile that Roosevelt Foster was driving, and she asked damages in the sum of $400 for the car and $2,000 as damages for her loss of the services of the minor, Roosevelt Foster. Later, however, it developed that the automobile that Roosevelt Foster was driving was owned by his brother, George Foster, who had collision insurance on the car. Accordingly, George Foster and his insurance carrier (Federal Union Insuranc\u00e9 Company) intervened in the case,.and sought to recover from the railroad company the amount of the damages to the car. The jury returned a verdict in favor of the railroad company and against the said interveners. Because of this verdict, appellant argues that, since the owner of the car did not recover, there is therefore a conflict between the verdicts, and all the judgments should be reversed. To support such argument, appellant cites such cases as: Mo. Pac. Ry. Co. v. Boyce, 168 Ark. 440, 270 S. W. 519; Muha v. De Luccia (N. J.), 136 Atl. 332, 5 N. J. Misc. 274; and Lanning v. Trenton Co. (N. J.), 130 Atl. 44, 3 N. J. Misc. 1006.\nBut we think one reason that the jury returned the verdict against George Foster and the insurance company was because of the peculiar and misleading instruction given the jury at the request of said interveners. The instruction read in part as follows: \u201cAs to the automobile the intervener insurance company alleges, and the plaintiff George Foster concedes, that under the policy written by it covering said vehicle, the said plaintiff has been reimbursed by said intervener in the sum of $260.50; so if you find for George Foster as to said property damage and further find that said damage, if any, amounted to as much as $260.50, then your verdict should be for the intervener for that amount. And if you find the damage to said property was more than the amount claimed by said intervener, then you may find for George Foster for such excess, if any, not to exceed the sum of $50.\u201d\nIt was conceded in the evidence that George Foster was the owner of the car, but the amount of the damages was disputed, and under this instruction the jury was- \u2014 \u25a0 in effect \u2014 told that, if the damages amounted to as much as $260.50, then the verdict would be for the intervener; and if the damages exceeded $260.50, then the excess, not to exceed $50, would go to George Foster. The jury might well have found from the evidence that the total damage to the car did not exceed $260.50; and in that event, could have returned a verdict against the interveners \u2014 under the wording of this instruction \u2014 without necessarily finding that the driver of the car was guilty of contributory negligence. \u2022 Viewed in this light, the verdict against the interveners does not necessarily establish that the jury found that the driver of the car was guilty of contributory negligence; and this disposes of the argument about inconsistency in the verdicts as regards the point here argued.\nIV. Appellant Says, \u201cThe Verdict in Favor of the Plaintiff, James T. Perryman, Is Inconsistent, and the Judgment for Him Is Inherently Wrong.\u201d One of the actions was b}1- Perryman, as administrator of the estate of his son; and in this action there was a verdict for Perryman, as administrator, for $25. In the same action James T. Perryman, as father of the deceased minor, also sought damages for the loss of the services of the minor by reason of his death; and in that phase of the action there was a verdict for the father for $5,000.\nThe gist of the appellant\u2019s argument in this assignment is, that, since there was a verdict for Perryman as administrator, it was therefore error to have a verdict for Perryman as father; because the administrator is the sole person who can maintain an action. Appellant cites and strongly relies on Sinclair Rfg. Co. v. Henderson, 197 Ark. 319, 122 S. W. 2d 580. In answer to the appellant\u2019s argument, appellee cites and relies on Southwestern G. & E. Co. v. Godfrey, 178 Ark. 103, 10 S. W. 2d 894. We think the case of Sauve v. Ingram, 200 Ark. 1181, 143 S. W. 2d 541, settles this issue in favor of the appellee. In the Sauve case Mr. Justice Mehaeey pointed out that the presence of the father\u2019s name in the pleadings did not change any \u201c claim or defense, and appellant could not possibly have been prejudiced thereby. \u2019 \u2019 So, here, appellant \u2014 in consenting to the consolidation of all of the cases \u2014acknowledged that the designation of the father as such really meant that the administrator was acting for the benefit of the father, since the father was also the administrator. Therefore, the two verdicts really mean that the jury awarded $25 to the administrator for the estate, and $5,000 to the administrator for the benefit of the father for loss of the services of the minor. We will further discuss the amount of this verdict under Topic VI herein, but we overrule appellant\u2019s argument concerning inconsistencies in the verdicts.\nV. Appellant Says, \u201cThe Court Erred in Giving Plaintiffs\u2019 Requested Instructions.\u201d The court gave 15 instructions for the plaintiffs and 24 instructions for the defendant; and the defendant made only general objections to plaintiffs\u2019 instructions. It would unduly prolong this opinion to set out all the instructions challenged, and to give in detail the reasons for our holding on eacji such instruction. We conclude that the instructions for the plaintiffs were not inherently erroneous, and were good as against general objections, which alone were offered.\nVI. Appellant Says, \u2018-\u2018The Damages Are'Excessive.\u201d We discuss the judgments.\nA. There was a verdict for James T. Perryman foi $5,000 for loss of the services of his minor son, Tommy Perryman, who was killed in the collision. The law does not attempt to compensate parents for the grief and pain they sustain in the loss of a child. No amount of money could do that. What the law does- \u2014 in the absence of a showing of reasonable expectancy of earnings after minority \u2014 is merely to compensate a parent for his monetary loss in being deprived of the earnings and services of the child during what would have been the remaining period of a child\u2019s minority. See Interurban Ry. Co. v. Trainer, 150 Ark. 19, 233 S. W. 816, and see, also, St. L. S. F. Ry. Co. v. McCarn, 212 Ark. 287, 205 S. W. 2d 704. With this point understood, we examine the testimony in this case.\nThe evidence shows that Tommy Perryman was 14 years and 8 months of age at the time of his death. The father, James T. Perryman, testified that the family lived on a 10-acre tract, and that Tommy, with the other children \u2014 when not in school \u2014 helped around the house and in growing and selling watermelons and other produce; that Tommy\u2019s earnings were \u201cused to buy clothes and stuff like other boys\u201d; that part of the boy\u2019s earnings were retained by the parent; and that the total return from the 1946 watermelon crop of all the children was $162. On this meager evidence of the earnings and services and contributions of the minor, we cannot sustain a judgment in excess of $2,500. Under the facts shown here, any amount greater than $2,500 for the father for loss of services of the minor is grossly excessive. So, if a remittitur is entered within 15 judicial days reducing this judgment of James T. Perryman to $2,500, then the judgment Avill be affirmed for the remaining $2,500; otherwise, the judgment will be reversed and the cause remanded.\nB. There was a verdict for Yoile Ray Aldridge for $10,000 for his personal injuries. The collision occurred on June 23rd; the boy was taken immediately to a hospital and kept under an oxygen tent for several days; he did not regain consciousness until July 1st; he remained in the hospital until July 4th, and then remained in bed in his home for three weeks thereafter. He suffered a fractured skull, two broken ribs, a broken left arm, a collapsed lung and a severe wound near the rectum. He has permanent scars on his forehead and nose, and a permanent thickening of the bony growth in the skull. He still suffers pain. Based on the above-mentioned injuries, we are unable to say that the verdict is grossly excessive.\nC. There was a verdict for J. J. Aldridge, father of Voile Ray Aldridge, for $1,000 for expenses and for loss of services of the minor. The evidence shows that Mr. Aldridge paid hospital and medical expenses amounting to $299.35; and that the minor is unable to work as before. We cannot say that this verdict is grossly excessive.\nD. There are three other verdicts, and we cannot say that any of them is grossly excessive. They were; for Roosevelt Foster, $100; Mrs. Nancy Foster, $400; and Perryman, administrator, $25.\nConclusion\nIf a remittitur be entered within 15 judicial days reducing the judgment for James T. Perryman to $2,500, then that judgment will be affirmed for the remaining $2,500. Otherwise, that judgment will be reversed and that cause remanded. All the other judgments are affirmed. The costs of this appeal are to be paid by the appellee, Perryman, since the action was consolidated by consent, and since there is a substantial reduction in the total amount of the judgments involved in this appeal.\nThe Chief Justice dissents on the ground that appellees \u2019 proof does not substantially negative the overwhelming evidence given on behalf of the Railroad that the reckless indifference of youthful motorists was the proximate cause of injury. Mr. Justice McHaney '(now ill and absent) voted to reverse and dismiss when the appeal was considered on April 6th. He asked that his dissent be noted.\nIn one action the plaintiff was James T. Perryman as administrator ; and also individually. In the second action the plaintiffs were Voile Ray Aldridge, by his father, and J. J. Aldridge individually. In the third action the plaintiffs were Roosevelt Foster, by his mother, and Mrs. Nancy Foster individually. In this third action George Foster and the Federal Union Insurance Company intervened.\nSee West\u2019s Arkansas Digest, \u201cRailroads,\u201d \u00a7 327.", "type": "majority", "author": "Ed. F. McFaddin, Justice." } ], "attorneys": [ "E. G.'Nabler, Paul E. Gutensohn and Warner $ Warner, for appellant.", "Partain, Agee & Part aim, for appellee." ], "corrections": "", "head_matter": "St. Louis-San Francisco Railway Company, Thompson, Trustee v. Perryman.\n4-8400\n211 S. W. 2d 647\nOpinion delivered May 24, 1948.\nRehearing denied June 21, 1948.\nE. G.'Nabler, Paul E. Gutensohn and Warner $ Warner, for appellant.\nPartain, Agee & Part aim, for appellee." }, "file_name": "0550-01", "first_page_order": 566, "last_page_order": 579 }