{ "id": 1541941, "name": "St. Louis, Iron Mountain & Southern Railway Company v. Holmes", "name_abbreviation": "St. Louis, Iron Mountain & Southern Railway Co. v. Holmes", "decision_date": "1910-10-31", "docket_number": "", "first_page": "339", "last_page": "344", "citations": [ { "type": "official", "cite": "96 Ark. 339" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "66 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1909799 ], "opinion_index": -1, "case_paths": [ "/ark/66/0046-01" ] }, { "cite": "89 Ark. 82", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515249 ], "opinion_index": -1, "case_paths": [ "/ark/89/0082-01" ] }, { "cite": "124 S. W. 247", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "92 Ark. 436", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "89 Ark. 24", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515200 ], "opinion_index": -1, "case_paths": [ "/ark/89/0024-01" ] }, { "cite": "87 Ark. 123", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1519126 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/87/0123-01" ] }, { "cite": "58 Ark. 136", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329196 ], "opinion_index": -1, "case_paths": [ "/ark/58/0136-01" ] }, { "cite": "70 Ark. 179", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509497 ], "opinion_index": -1, "case_paths": [ "/ark/70/0179-01" ] }, { "cite": "89 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515204 ], "opinion_index": -1, "case_paths": [ "/ark/89/0556-01" ] }, { "cite": "78 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1497241 ], "opinion_index": -1, "case_paths": [ "/ark/78/0381-01" ] }, { "cite": "65 Ark. 52", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "50 S. W. 581", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "73 Ark. 548", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504028 ], "opinion_index": -1, "case_paths": [ "/ark/73/0548-01" ] }, { "cite": "28 Mich. 440", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1953437 ], "opinion_index": -1, "case_paths": [ "/mich/28/0440-01" ] }, { "cite": "92 Ga. 293", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 575939 ], "opinion_index": -1, "case_paths": [ "/ga/92/0293-01" ] }, { "cite": "87 Ark. 581", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1519155 ], "opinion_index": -1, "case_paths": [ "/ark/87/0581-01" ] }, { "cite": "54 Ark. 25", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1320355 ], "opinion_index": -1, "case_paths": [ "/ark/54/0025-01" ] }, { "cite": "102 N. Y. 280", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2203069 ], "opinion_index": -1, "case_paths": [ "/ny/102/0280-01" ] }, { "cite": "86 Ark. 325", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1521525 ], "opinion_index": -1, "case_paths": [ "/ark/86/0325-01" ] }, { "cite": "88 Ark. 12", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1517156 ], "opinion_index": -1, "case_paths": [ "/ark/88/0012-01" ] }, { "cite": "83 Ark. 22", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1527171 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/83/0022-01" ] }, { "cite": "82 Ark. 393", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529012 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/82/0393-01" ] }, { "cite": "71 Ark. 590", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1507852 ], "opinion_index": -1, "case_paths": [ "/ark/71/0590-01" ] }, { "cite": "78 Ark. 147", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1497228 ], "opinion_index": 0, "case_paths": [ "/ark/78/0147-01" ] }, { "cite": "76 Ark. 520", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1501108 ], "opinion_index": 0, "case_paths": [ "/ark/76/0520-01" ] }, { "cite": "87 Ark. 109", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1519092 ], "opinion_index": 0, "case_paths": [ "/ark/87/0109-01" ] }, { "cite": "90 Ark. 494", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513854 ], "opinion_index": 0, "case_paths": [ "/ark/90/0494-01" ] }, { "cite": "93 Ark. 119", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546822 ], "opinion_index": 0, "case_paths": [ "/ark/93/0119-01" ] }, { "cite": "94 Ark. 75", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545335 ], "opinion_index": 0, "case_paths": [ "/ark/94/0075-01" ] }, { "cite": "95 Ark. 220", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1543482 ], "opinion_index": 0, "case_paths": [ "/ark/95/0220-01" ] }, { "cite": "89 Ark. 82", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515249 ], "opinion_index": 0, "case_paths": [ "/ark/89/0082-01" ] }, { "cite": "87 Ark. 123", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1519126 ], "opinion_index": 0, "case_paths": [ "/ark/87/0123-01" ] }, { "cite": "58 Ark. 136", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329196 ], "opinion_index": 0, "case_paths": [ "/ark/58/0136-01" ] }, { "cite": "70 Ark. 179", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509497 ], "opinion_index": 0, "case_paths": [ "/ark/70/0179-01" ] }, { "cite": "89 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515204 ], "opinion_index": 0, "case_paths": [ "/ark/89/0556-01" ] }, { "cite": "83 Ark. 22", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1527171 ], "opinion_index": 0, "case_paths": [ "/ark/83/0022-01" ] } ], "analysis": { "cardinality": 605, "char_count": 10372, "ocr_confidence": 0.622, "pagerank": { "raw": 1.5984160157231871e-07, "percentile": 0.683448726161255 }, "sha256": "d0dcabb1db92584331715f3646a617f75ad5f3ec45788f84cf19e0ff82a21e27", "simhash": "1:1bb6a85308dac46c", "word_count": 1827 }, "last_updated": "2023-07-14T19:29:20.592461+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "St. Louis, Iron Mountain & Southern Railway Company v. Holmes." ], "opinions": [ { "text": "Wood, J.,\n(after stating the facts). Witnesses for appellant testified that it was unnecessary in the proper operation of the train to start same with a jerk. Then, if the train did start with a jerk, as the witnesses for appellee testified, this was evidence of -negligence on the part of appellant, and if the injury of appellee was the result of this negligence, as the evidence tended to prove, then appellant was liable. The questions of negligence and contributory -negligence were properly submitted f-or determination by -the jury and upon -correct declarations of law.\nThis court has defined the duty of carriers to passengers on combination freight and passenger trains, and also the duty of passengers on such train-s iwith reference to their own safety. We need not repeat here the rules applicable in such cases.\nThe instructions of the -court were in harmony with the doctrine announced in the following cases: St. Louis, I. M. & S. Ry. Co. v. Hartung, 95 Ark. 220; Arkansas S. W. Ry. Co. v. Wingfield, 94 Ark. 75; St. Louis S. W. Ry. Co. v. Jackson, 93 Ark. 119; Arkansas Central Rd. Co. v. Janson, 90 Ark. 494; St. Louis, I. M. & S. Ry. Co. v. Cobb, 89 Ark. 82; St. Louis, I. M. & S. Ry. Co. v. Brabbzson, 87 Ark. 109; Pasley v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 22; Rodgers v. Choctaw, O. & G. Ry. Co., 76 Ark. 520.\nSince, according to the undisputed evidence of witnesses for appellant, it was unnecessary to start this particular train with any jerk at all, the instructions at the instance of both parties submitting the question to the jury as to whether the jerk, if any, was a \u201csudden, violent and unusual\u201d one, or of \u201cunusual and unnecessary violence,\u201d were more favorable to appellant than otherwise. Instruction number four, given at the instance of appellee, after declaring the duty of carriers to passengers on mixed freight and passenger - trains, and that the passenger assumed the risk incident to the proper operation of such a train, continued as follows:\n\u201cAnd, so in this case, if you find from the evidence, by a fair preponderance thereof, that Webb Holmes was injured by a sudden, violent and unusual jerk in the starting of one of the defendant\u2019s trains, which said jerk amounted to more than a necessary incident in the starting of such train, and that he was at the time a passenger on said train, free from negligence on his part which could have contributed to his injury, and within his rights as a passenger, then in this case you should find for the plaintiff in some amount not exceeding $5,020.\u201d\nCounsel urged, as their \u201cprincipal objection\u201d to this instruction, \u201cthat it leaves the damages at large without being in any way controlled by the evidence.\u201d Conceding this, the amount of the verdict shows that it was not excessive, and therefore the appellant was. not prejudiced. \u2022 As to damages, the only issue was as to the amount of damage appellee sustained by way of pain and suffering and medical attention.\nThere was no controversy as to the character of appellee\u2019s injury, nor as to the sum expended for medical services. The verdict was less than half of the amount asked in the complaint. Even if the instruction offends the rule announced in Fordyce v. Nix, 58 Ark. 136, and St. Louis S. W. Ry. Co. v. Myzell, 87 Ark. 123, iwe can only reverse for errors that are prejudicial. The sum of $2,500 for the pain and suffering incident to the loss of an arm' that, for two-thirds of its length, \u201chad been crushed all to pieces,\u201d is certainly not exorbitant.\nAfter the injury to appellee the conductor and division superintendent of appellant called a surgeon and asked him to \u201crush on\u201d and \u201cto take charge of\u201d the injured man and \u201crender all necessary means he could.\u201d This conduct did not tend in the slightest degree to prove that the injury to appellee was caused through appellant\u2019s negligence. It was but the manifestation of commendable sympathy for one in distress and the expression of a desire to relieve his suffering. It would be unheard of to construe these humane impulses of the agents of appellant as admissions of negligence in causing the injury to appellee. Therefore the doctrine of St. Louis, I. M. & S. Ry. Co. v. Walker, 89 Ark. 556; St. Louis S. W. Ry. Co. v. Plumlee, 78 Ark. 147, Prescott & N. W. Ry. Co. v. Smith, 70 Ark. 179, has no application .\nWe find no reversible error, and the judgment is therefore affirmed.", "type": "majority", "author": "Wood, J.," } ], "attorneys": [ "W. B. Hemingway, B. B. Kinsworthy and Bridges, Wooldridge & Gantt, for appellant.", "X. O. Pindall, for appellee." ], "corrections": "", "head_matter": "St. Louis, Iron Mountain & Southern Railway Company v. Holmes.\nOpinion delivered October 31, 1910.\n1. .Carriers \u2014 injury to passengers \u2014 instruction.\u2014Where, in an action for injury to a passenger in embarking on a train, it was unnecessary, according to undisputed testimony, for the train to start with a jerk, an instruction which submitted to the jury whether the train was started with a jerk of unnecessary violence was too favorable to the railroad company. (Page 342.)\n2. Appeal and error \u2014 when instruction harmless. \u2014 An instruction which left the jury t\u00f3 fix damages at large, without being controlled by the evidence, was not prejudicial if the verdict was clearly not excessive. (Page 343-)\n3. Damages \u2014 excessiveness.\u2014An award of $2,500 for the loss of an arm which for two-thirds of its length was \u201ccrushed all to pieces\u201d is not excessive. (Page 343.)\nAppeal from Desha Circuit Court; T. Bernhardt, Special Judge;\naffirmed.\nstatement oe the court.\nThe appellee, according to the evidence of himself and other witnesses, was in the act of boarding one of appellant\u2019s combination freight and passenger trains at Watson station for the purpose of taking passage to Yoncapin. Appellee had mounted the steps, and'had reached the platform, and was \u201cfixing to go in the door of the coach\u201d when the train made a \u201cbump,\u201d \u201ca big bump,\u201d \u201cia hard coupling,\u201d a \u201cjerk,\u201d \u201cconsiderable of a jerk,\u201d an \u201cawful hard jerk,\u201d as the witnesses for appellee variously describe it. This bump or jerk threw appellee from the platform to the ground. Appellee had under his arm a package of ibeef. As he fell, his arm struck the rail, and the train ran over it, -crushing the \u201clower two-thirds of his -arm and hand all to pieces,\u201d so that it was necessary to amputate same. The train \u201cwas standing perfectly still\u201d until appellee reached the platform and \u201cgot to where he was going in the door,\u201d when it started.\nAppellee was attended .by the surgeon for about twenty-two days. Appellee had a pint of whisky in his pocket. He did n-ot know how many -drinks he had taken the evening before his injury, but -he had taken only -one drink- \u2014 a bottle of beer \u2014that morning, and was sober. The above are substantially the facts, as -the jury might have found them in -favor of appellee. Appellee sought and recovered judgment against appellant in the sum of $2,500. He alleged in -his complaint that appellant \u201ccarelessly and negligently started its train with a sudden and violent jerk,\u201d -causing the injury above described. Appellant denied the allegations, and set up that appellee did not become a .passenger on its train, \u201cbut that he undertook to board the train after it left the station and while it was in motion,\u201d and that appellee was thus injured through his own negligence.\nThe testimony of witnesses on behalf -of appellant tended to prove that appellant\u2019s train stopped at Watson on the day appellee was injured some ten or fifteen minutes for passengers \u25a0to get off and on; that the train had begun to move, and had gone -about ninety feet before appellee attempted to get on same; -that appellee waited at a saloon until the train started up, then he was seen approaching, running to catch the train. \u201cHe grabbed the grab iron with his right hand and missed it, and attempted to step up and missed the step, and fell in under there,\u201d as one of the witnesses testified.\nThere was testimony tending to prove that appellee at the time appeared to be under the influence of liquor.\nWitnesses on behalf of appellant testified that the train did not start with a jerk, that the train was light, and that it was unnecessary that it should start up with a jerk.\nThe above testimony on behalf of appellant tended to prove that appellant was not negligentfand that appellee was negligent. Other facts stated in opinion.\nW. B. Hemingway, B. B. Kinsworthy and Bridges, Wooldridge & Gantt, for appellant.\n1. The mere fact that there was a jerk in starting the train was not sufficient to show negligence. It was a mixed freight and passenger train. 3 Hutchinson on Carriers, (3 ed.), \u00a7 1217; 4 Elliott on Railroads, \u00a7 1589; 44 S1. W. 213; 71 Ark. 590; 82 Ark. 393; 83 Ark. 22. A carrier is required to try to protect its passengers from such dangers only as it may reasonably anticipate. 88 Ark. 12; 86 Ark. 325. It owes no duty to a belated passenger to delay the train after allowing a reasonable time to get aboard. 102 N. Y. 280; 54 Ark. 25; 87 Ark. 581; 92 Ga. 293. After such reasonable time the conductor is not required to examine to see that all intending passengers have boarded the train. 24 Am. & Eng. R. Cas. (N. S.), 923, note; 6 Cyc. 613; 28 Mich. 440; 73 Ark. 548; 50 S. W. 581.\n2. The testimony of Dr. McRae that he was told to take charge of plaintiff after the accident was improperly admitted. 1 Ene. of Evidence, 552; 65 Ark. 52; 78 Ark. 381; Id. 147; 89 Ark. 556; 70 Ark. 179.\n3. The fourth instruction errs principally in directing the jury that, if they found certain things to be true, \u201cthen in this case you should find for the plaintiff in some amount, not exceeding $5,020.\u201d 58 Ark. 136; 87 Ark. 123; 69 111. 426; 83 111. 440; 174 111. 398.\n4. The verdict is excessive.\nX. O. Pindall, for appellee.\n1. Starting a train with jerks and jars of unusual and unnecessary violence is held to be negligence on the part of the company. 82 Ark. 393; 83 Ark. 22.\n2. If the testimony of McRae -complained of was improper, the -objection to it was merely technical, and th-e testimony was harmless. Appellant should have asked a proper -instruction concerning it, or should have pointed out to the court its injurious effects; 13 Ark. 344P94 Ark. 407; 89 Ark. 24.\n3. The amount sued for was reduced by the plaintiff, without -objection from defendant, before the jury were instructed. The fourth instruction was neither erroneous nor 'hurtful. 92 Ark. 436. Moreover, there was no error pointed out to- the trial court. 124 S. W. 247; 89 Ark. 82; 66 Ark. 46; 87 Ark. 123." }, "file_name": "0339-01", "first_page_order": 361, "last_page_order": 366 }