698 , KANSAS CITY SOUTHERN RY. CO . V. COCKRELL. [169 NANSAS CITY , SOUTHERN RAILWAY COMPANY V. COCKRELL. Opinion &livered November. 2, 1925. , CARRIERS—INJUR Y TO PASSENGER RES . IPSA LOQUITUR. — In , an , ac-, tion by a passengei- for injpry in a railroad collision, where the ' evidence conclusively established that the collision was caused bY '" • the -negligence of some of defendant railway company's servants,, but: not the negligence of the conductor operating the train, jointly sued with the railway company, the doctrine of res ipsa , , loquitur applies as to the liability of the company but not as ,to that of the conductor. 2. .RE]uovAL, OF' CAUSES—REFUSAL PROPER WHEN.—In a passenger's action for injury' from a railroad collision, where the federal court had remanded the case to the . State court after finding that the joinder of the conductor, a resident, was not shown to have . been fraudulent, the court properly , denied removal , after • refnsing to direct a verdict for the conductor, since . the holding O of the federal cnuit was Conclusive on the issue of fraud, and the conductor continued' to be a party, in the absence of a volun-' tary dismissal as tO him by the plaintiff.
ARK.] KANSAS CITY SOUTIIERN'RY. CO. v. COCKRELL. 699 3.. CARRIERS—INJURY TO PASSENGER IN COLLISIONPRESUMPTION.— . , In an, action by a passenger against , a raiIWay company and one bi its einplo3iees for injUries receiVeci in a Collision, .a .verdiet for the employee and against the coinpany,' ba'sed.'npion the•testinieny of the 'einployee showing no' :negligence on his part, is! not'con‘ tradictory, since there, is no Presumption of negligence . against • —the employee while proof of: the injury by reason, of the collision raised a presumption of negligence against the company. CARRIERS UNDISPUTED TESTIMONY OF NONLIABILITY. 41 a s e ri ger's 'aCtion for negligent 'injury 'frOin 'à iairway' againSt the railway company and one of , 'its eniployees where plaintiff fail'ed to sustain the burden Uf .proving the' negligence of the employee, testimony of the employ , ee, though. exonerating himself,. was not undisputed , eVidence , of nOnliability.of the company; sinee the testimony of an interested' paitir . is not regarded " a's ' Undisputed in testing' the suffiCiencSi evidehee. E VIDENCE—OPINthN 'OF NON -EXPERT. ,—In ' 'a pasenger's .aetioir :for injury from a railroad c011ision, it .wa's no , t error to Pftmitta non-. expert to testify from obserying plaintiff's physical condition that 'be . was linable to perforin 'Manual l l abor ' on acCoun of a' hernia. GARRIERSL INSTRUGTION AS . TO ,a passenger's action for a' negligent injury received in a railWay 'collision, an instruction' to assess such damages as 'will 'compensate. fot injuries, :if any, and.physical or mental anguish .suffered : M the , past or. to , P,e • suffered in 'future, if ' any, was not objectionable as ignoring evidence of a pbssible reduction of damages; if defendant desired an instruction as to a possible reduction of daniageS ; by Means . 'Of n surgical operation, he should have 'requested it, ' but, could not .raise the question for the' first thhe in a motion! for ,newT , trial. DAMAGES—BAD REPUTATION . OF PLAIN T an.. action by 4 passenger for damages receiVed in' a railroad 'collision, an instrucl tion that plaintiff's bad reputation for truth and morality could'he . considered only as affecting his 'credibilit3i was not. erroneous as excluding consideration of such fact in determining extent-of his f ' uture earnings, where plaintiff depended on , earnings 'fiOm manual labor, which could not be 'affected by bad' reputation:, 8. tRIAL— MISCONDUCT OF PARTY .—In an uetiori for inju'ry fiorn: . railroad c011ision, a conversation between 'plaintiff and 'ids father with jurors concerning the weather ' and farming was: not.isuch misconduct as would vitiate a verdict in. plaintiff's. favor. Appeal from Polk Circuit Court; B. E. Isbell . Judge • affirmed. . , ,Jaines B. McDonough, for: appellant.. Lake, Lake & Carlton, for appellee.
700 KANSAS CITY SOUTHERN RI% CO. v. COCKRELL. [169 McCuLLocEr, C. J. The plaintiff, William Cockrell, in-stitated this action to recover dathages on account of personal injuries alleged to have . been received , . while a passenger on one of defendant's freight trains between Mena and DeQueen. He alleged that there was a colli-tion between the train on which he was riding and another irei g ht frain, and that the collision waS caused by negligence of Roberts, the cOnductor, in failing to exercise care to control the movements of his train. He alleged that he was sitting in the caboose when the collision occurred, and that he wds violently thrown from the seat and injUred abOut the head and back, had two ribs broken, and that hernia resulted. The conductor, Roberts, who was a resident of the State, as was the plaintiff . 'himself, was joined as defendant. Appellant filed, in apt time, its petition for removal to the Federal court on the ground of diversity of citizenship, and alleged that plaintiff had joined, as defendant in the action; Roberts, the conductor, for the wrongful and fraudulent purpose of defeating the right of removal. The transcript *of the prbeeedings was filed in the office of the clerk of •the " Federal court of that district, but the plaintiff filed a motion presenting an issue on the allegations of fraud in joining Roberts as a defendant and asked that the cause be remanded, and the court, after • hearing the , motion, ienianded the cause to the State court. Appellant and the other defendant filed separate answers containing specific denials of all the allegations of the complaint,..and there was a trial of the issues, .which resulted in .a verdict in favor of Roberts, but in favor of the plaintiff against appellant for the recovery of damages in the sum of $2,500. The plaintiff himself was introduced as a witness, and his testimony etablished the fact that he was a passenger on the train ; that there was a violent collision between his train and another freight train ; that he was thrown from hls seat and received serious personal injuries—
ARK.] KANSAS CITY SOUTHERN B y . CO. 'V.' COCKRELL. 701 among other things, two broken ribs l and . a. hernia.. Other witnesses were introduced bye the plaintiff to prOve the, extent of his injuries. Plaintiff also introduced as a witness Roberts„ the conductor„ who, testified. concerning the collision between the trains, but whose testimony exonerated himself from: fanit concerning: the collision. It appears ,from the testimony that plaintiff took passage on this , train, which „was . -south,bound,. ; from , .Mena. to DeQueen, and -that . after the train , reached :.Gilham,: an intervening station, the . - conductor „received orders to meet an extra north-bound freight, at that place. These orders, it, appears from the testimony ; of Roberts, :were - received, after both . trains had .reached that .station. Roberts' train was standing on the main track, headed south, and the other train was partly on the. main track and partly on the side track south of the ,station. Roberts testified that he transmitted the orders . to , the, engineer by the ' hands of two ,. brakemen , directing. that. the . train proceed southward if, it was , clear ahead. . The testimony of . , Reberts, if • believed, completely ,exOnerated himself from fault, but the .necessary inference was that the.colli7 sion , was caused, either by.the-negligence of , the ,brakemen in failing to properly , transmit the orders to - the :engineer, or the negligence of the, engineer , in going for, ward :with the . other -train. standing. in front . of him . on the track. . At any rate, it is, conclusively , established that the collision , was caused by negligence of , some- of the servants of appellant. , The ,doctrine , of res ipsa loquitur applies, so far as relates to the, question of liability, of , appellant. Not so, however,, as to the liability of the.. conductor. . When appellant reSted itS case; Roberts, WhO WaS represented by separate . counsel, .moved for a' directed verdict, which was overruled by. the'eburt, and thereupOn appellant presented its 'second petition and -bend fo.i removal to the Federal Court on the ground that the plaintiff had failed to make . ont a. ease against Roberts, and that the cause had then; for the . first time, become
702 KANSAS CITY SOUTHERN RY. CO . v. COCKRELL. [169 . removable.. The . court overruled the. petition, and .the cause proceeded . to -a verdict . and judgment in'favor . -of plaintiff. *. It is contended, in . the first place, that . the .e6urt erred in refusing to grant the petition for renioval. The gtound urged .for: removal of the 'cause at the 'Point . at which the' second'petition was 'filed is that; notWith'Standing the plaintiff had not disMissed . the cause aS . te Roberts, and the court had refused td direct . a verdict .as to him, according tO the undisputed evidende . plaintiff had made no case against Roberts for submission ' to the jury, and thaf'this gave appellant the right to , reMOYe the eause, 'as if . Roberts was no longer a partY 'to the action.. We do not agree with counsel ' fer appellant in this contention. 'If . the plaintiff . had, af any stage Of.the proceedings, disMissed the action - against appellant's co-defendant, -WhO was . a'resident of the State, the cauSe Would then; for the firSt tinie, haVe beedme 1:ern:dyable. Poviers v. Chesapeake &'Ohio. R .ctilvay, 169 U. S: 92; Fritzlen v. Boatmen's Bank, 212 U. S..364. The'diStinction however between those 'cases and the present one is that the plaintiff did not dismiss the cause as to apPel, lant's cd-defendant, and, whether rightly sO Or not, the latter' was still a party-defendant - and remained , as: suCh until he was finally . exonerated by the verdict of , the jUry. This distinction is • very clearly pointed: out . bY the Supreme 'Court Of 'the United States in'humerous cases. Kansas City Suburban Belt Ry. Co. v. Herman, 187 . U. S. 63; AlabcOna Great Southern Ry. Co. v. Thompsbn, 200 U. S: 206; Lathrop v. Interior Constr. & Imp. C.o.', 215 U. S. 246; American Car. & Foundry . Co. v. Kettelhake, 236 U.'-S. 311; Great Northern Ry. Co. v. Alexander, 246 U. S. 276. In the case' last cited above, the court said: "It is also settled that a case arising under the laWs of the United States, non-removable on the complaint; when commenced, cannot be converted into a removable one 'by evidence of 'the defendant or by an order of the cOurt upon any issue tried upon the merits, but that such con-
ARK.] KANSAS CITY SOUTHERN RY. COCKRELL.• 703 version can only he accomplished by the voluntary amendment of hiS pleadings by the plaintiff, or, where the case is . not 'remevable because of joinder of defendants, by the' voluntary dismisSal or nonsuit by Mm of A party or parties defendant." The trial court was therefore correct in denying the petition for removal. The decision Of the Federal Court in remanding the cauie -Was 'conchisiVe on the issue of fraud in joining the' conduCtor as defendant, and that question could not be raised again. Roberts was still a party tO the action, netWithstanding the fact that plaintiff had failed to make otita case 'against him, and the court should have directed a verdiet in his favor. As long as his retention in the ca g t6 e continued, since it was 'adjudged that the joinder off defendant was not frandulent," he was still a party unfil elithinated by a voluntary dismissal by the plaintiff, and the canSe Was net removable. • , It is next contended that the verdia Of the jury was contradieto'r ' y ,in' finding' in favoi : of ' RobertS, against whoin the specifiC Charge: of negligence was Made, 'but against , aPpellant, whose Hability accrued solely 'on account of its responsibility for' the neglikenCe of its Own servants, and that the conri shduld not have rendered judgment against aPpellant on the verdict. This point has been decided in another case against the contention Of conriSer for aPpellant. Dai)is v.' Haref ord, 156 Ark. 67. The -verdict of the jury aS` to , the liability Of the twd defendant§ wa g not essentially inconsistent in vieW of the fact that the 'burden of prOof 'rested upon the plaintiff to make , 'Out a case against Roberts, : there -being no pre-: sumPtiein of negligence on ' his Part, but Oh the otherihand the Prodf Of the injury by 'reason of the collision of the tWo trains raised 'a preStimption of negligenee againSt appellant, and the bnrden 'of proving negligenee did' not rest upon the plaintiff. The plaintiff' failed, as against Roberts; to make out a ea,s4gainst him, the burden of proof being : upon plaintiff , to do so, hnt RObertS':!own téstiineny, though containing ahsolute denial of . fault On
704 KANSAS CITY SOUTHERN RI% CO. v. COCKRELL. [169 his part, did not, as' against appellant, constitute undisputed evidence of nonliaibility. His testimony afforded no affirmative evidence , of negligence and added nothing to the plaintiff's case against him or the appellant. It did not constitute undisputed evidence of nonliability, for he was a party to the suit, and the rule established by our court i that the testimony of a party to an action interested in the restilt cannot he regarded as undisputed in testing the legal sufficiency of the evidenee. Skillern v. Baker, 82 Ark. 86. . . Another assignment of error relates to the ruling of the court in permitting W. L. Cockrell, plaintiff's father, to testify concerning the extent of plaintiff 's injuries. The point of the pontention is that the witness was not an en p ert, but was permitted to testify as such. •We ao not think that counsel properly estimate the character of the testimony of the witness, for he did not pretend to be an expert or to testify as such, but merely testified concerning his knowledge of plaintiff's physical diSability as actually observe&by ' the witness himself. The testi; Mony of the witness was, in effect, that he was familiar with his son's condition, and that on account of the hernin he was not able to perform manual labor. We do not think that there was any error in 'permitting the witness to make this statement. , There are very numerous assignments of error with reference to the court's. charge to the jury 7 --in fact, the ruling of, the court .in giying each of the instructions requested by plaintiff is made the subject of an assignment of error, and each refusal of the court.to give an instruction requested by. appellant is also made the basis of an assignment : of error. These assignments of error are . so numerous that it is not practicable to discuss them all. We have onsidered them and , find no error, and will. only, discuss suPh as we deem of sufficient importance. There was evidence introduced to the effect that plaintiff could have been relieved of the hernia by a surgical operation at an expenditure of 'between $150 and $250.
ARK. ] KANSAS CITY . SOUTHERN TR y . C . v. COCKRELL. 705 • An exception was saved as to the ruling of the court in giving a certain instruction on the ground that it ignored the issue that the damages could have been reduced lay plaintiff if : he had subjected himself to a snrgical opera-, tion., The instruction . wilich it, is , contended is , .offensive on that account reads as follows : Y 6. If you find for the plaintiff, you . will assess his damages ,at such sum 'aS will compensate him for the' bodily injury sustained, if• any ; the physical and mental anguish .suffered andendured by him in the past,.if- any ; and that which he. will endure in the future, if , reason of . -said injnry ; his, loss of time, if .any,:a.,pd pecuniary loss from his: diminished capacity for earning. money in the, uture, •if any; and f rom . these, .as:proVed from . the evidence, :assess. such . damages ,as will COIH-pensate . him fOr the injuries received. , " • • Withdut deciding- whether or- not the plaintiff Was compelled to reduce his damages by : a surgical -operation, it is . sufficient answer , to. aPpellaht 's contention to..say that -the instruction• is not • open to the objection' made to it. It does not ignore any question of possible. or probable reduction of damages. The instruction,.reason. ably interpreted, relates to damages which proximately resulted from the injury inflicted on account of negligence of appellant:s servants.. •If the instruction , was thought to ignore any other: issue in the case, the objection should have been specifically made so as *to point it out AO, the court. If the . result of the injury eould have been . lessened and the damages thereby . reduced by any act ,. .or. .conduct of the plaintiff, the-burden to' prove it rested upon , apPpi-lant, and• if an instruction on that issue, had been , desired, appellant, should have asked for it: This was not done, but, on the contrary,• appellant suffered the 'case tO go. to the jtry upon general, instructions••as to the.measureçf damages, without calling the ,,attention , of the court in a . ny way to -the issue- of reducing , t he . damages l . ay . : a g ar. - gical operation. , It, was too late to attempt to: ;raise that question in the motion Tor . a new trial. ,
706 KANSAS CIT Y SOUTHERN RI -. C.10. V. COCKRELL: [169 Appellant contended that plaintiff was suffering from hernia prior to the time of his being injured on the train, and appellant requested the court to giVe an instruction telling the jury that there would be nO if plaintiff's physical disability existed prior to the train collision or otherwise than as a result of the collision, and the court gave that instrUction. We think that the instructions on the measure of damages were proper, and there was no error in that regard. • Again, it is urged that the court committed an error in giVing an-instruction telling the jury that *proof of bad reputa•tion of the plaintiff for truth and morality could Only be considered as affecting his credibility 'as a-Wit= ness: • 'The contention is that the Jury .. shOuld : have been permitted to consider this fact for the purpose of. determining the extent of his fUture earning capacity. • The plaintiff does not appear.to have had any vocation involving professional skill or intelligence • or high traits of character,.but merely depended upon manual labor, , therefore the question of his poor reputation could . haVe had no bearing upon his probable •future earnings. • It Was foo vague to afford anY guide to the jury in determining what .his earnings in the future by physical labor would probably be.. . . These are all of the assignments in regard to the Court's charge that we deem to be of sufficient inapórtthIce to discuSs. Finally, it is contended that the verdict should be. set aside. on account of alleged misconduct on 'the part'of the Plaintiff and 'his father in perthitting themseNeS tO be brought into personal contact with members of the jUry while the case was being tried, or at least befOre the 'Verdict was rendered. 'In suPport of this assignment, appellant introduced the affidavit of One John T.''TiSdale,.whO Was• an employee: of .appellant for the purpose of seeui.: in . k . evidence in this case. The affidaVit, after stating that affiant was 'acquainted with the plaintiff, and his father, W. L. Cockrell, reads as follows
ARK.] KANSAS CITY 'SOUTHERN R y . CO. v. COCKRELL. 707 "On the morning of April 24t , h, about 7 . :45 ,A. M. I was at-the north entrance of Polk County court house, where I,noticed W. L.. Cockrell in conversation with some of the, jurors. I also noticed one or two of the _jurors standing near Wm: Cockrell, plaintiff. During this . time I heard an extensive conversation between W'. L. Cock-rell and the juror. They were discussing at the time I first appeared some matters relative to farming, and later one particular juror asked W. L. Cockrell where he lived. He told him near Hot Springs, at Bear, Arkansas. This juror also asked Cockrell what his name was and he told him 'Cockrell.' The juror replied that, • 'Yes, I reniember you was on the Witness stand yesterday.' W. L. Cockrell ,stated,that,. 'That was .my son in that case:' . .At this time they continued their conversa, don With . , reference to farming-Conditicins near the' Cock-rell . home as well as farthing condrtions 'near Mena, 'Arkansas. This conVersatien lasted for perhaPs twelve to eighteen minutes. This conversation continued until someone called to the juror from upstairs. I also noticed during this time that Wm. Cockrell, plaintiff, was engaged with eenversation with two . of the juror§ whose riarnes I do not know. This Conversation, so , far as T could hear, was concerning ;the weather conditions and rain. only heard: , a few . words of their discussion., They remained in conversation until the jurOrs were called up stairs." • , , It is contended that this ,conversation between some of the jurors and the plaintiff and his father constituted sUch improper conduct as should be treated as sufficient tovitiate the verdia. rv COunsel cite many . authorities sustaining the rule that the slightest misconduct On tlie part of parties to an action in approaching Members of the jury is • deemed sufficient to set aside a verdict ,which might have been in part obtained by reason of the mis-cenduct; 'Giving full fOrce to all of these authorities, We find none of then' justifies uS in holding that a mere chance conversation about the weather, even between the
plaintiff himself and one of the jurors, would be sufficient to vitiate the verdict of the jury. It would be carrying the doctrine too far to hold that an incident of that kid, where it appears affirmatively that the 'conversation extended no further, is sufficient to vitiate the verdict. Finding no error in the record, the jUdgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.