ARK.] _I • i ALDWIN ET AL., 'TRUSTEES MO. PAC. RD. 503'
Co. v. 'COMPTON. BALDWIN ET AL., TRUSTEES MISSOURI PACIFIC RAILROAD COMPANY V. COMPTON. 4-4248 Opinion delivered March 30,1.936.. APPEAL AND ERROR.—This court has no power to vacate the verdict Of a jury or the judgment based therean on the . weight of the evidence; on the contrary, if there is any g Ubstantial evidence to support the verdict, the jury's finding is conclusive here.' 2. RAILROADS.,It is the duty of a railroad company making excavations An street to 'protect travelers, though it , may be primarily, the duty of the city to repair the street; and -a general objection to . an instruction as to the duty of the railroad companY to warn travelers 'was not aufficient to raise point that it 'should have referred to rules of law fixing responsibility of city. APPEAL AND ERROR.—Where motorists sued railroad company for injuries sustained when they drove into exacayation in street made by railroad, an instruction that plaintiffs were entitled to recover for mental pain and anguish will not be held erroneous where not suggested 'to trial court. . Appeal from Crawford Circuit Court ; J. 0..Kincan-nou, Judge ; -affirmed. . . . • Thomas B. Pryor and W. L. Curtis, for appellants.. Pa,rtain Agee, for appellees. • MEHAFFY, , Each ,of the appellees filed suit in ,the Crawford Circuit Court on June 6, 1934, against the ap- - pellants 'for damages alleged to. have been caused by the negligence of' appellants. The trial court conSolidatedthe cases, and they were tried together before the same jnry: Appellees alleged in their complaints that the apVel-lantS carelessly and negligently Wok up the tracks- cross-ing-the street and highWay, which *as a main traVeldd thorOughfare at the point where, the Ft. Smith Subtrbán Railwayline crosses same, and dug and created and left an exCavation' approximately three feet in 'depth; in' and aero'ss §aid §trebt' and highWays,.and carelessly and negli-
504 BALDWIN ET AL.,- TRUSTEES MO. PAC. RD. [192
• Co. v. COMPTON. gently left same in the night time without any barricade, warning or protection, or light, or signal or warning. of any kind . whatever. of the dangerous condition and situation so carelessly and negligently created by appellants, fheir servants, agents and employees, and carelessly and negligently failed to make any provision whatever for protection or warning to the public traveling thereon :of such dangerous situations so 'created and left by them; that at about 1:30 A. M., on . April 18, 1934, one of the ap-pellees, James W. Cleveland, was driving an automobile belonging , to appellee, Wiles Compton, along Midland Boulevard and Highways 64 and 71, going in a southerly direction. All . of the.appellees were 'in . the autoniobile, and when it reached file oxcavation.aCross the street and highway, the automobile was, .by .the above acts. of .appellants,. their servants; . agents and employees, caused to fall into said excavation and wreck said automobile; and the occupants of the car, the appellees,.were thrown,With great violence in and .about said car, and severely injured. Each appellee describes the injuries alleged to have been . received, :and each asked for damages in different . amounts. • •• The appellants filed separate answers .denying the allegations in the complaints. Tho jury. returned-its verdict against the appellants in favor of the appellees as folloWs : Wiles CoMpton,•: $500; • RalPh Vest,' . $500; Doris Vest, $2,500; Libbie Sue Compton, • $2;500; jathes W. Cleveland, $2,500. .JUdgnients were entered accordingly. 'Motion for new trial was filed by aPpellantS; overruled by the court;'and the case is here on • appeal. -, • The evidence introduced by the .appellees tended to establish the following facts : that .: James W. Cleveland is 38 .years , old, has lived in Crawford county all his life except in recent years, he was away quite a while in the army, but his home' has always been in Va.n .Buren; that at the time. of this injury . in April, 1934, he was work ing at a:service . station in Ft. Smith; between- 1:30 .and 2:00 o'clock in.the morning .he was driving between Ft. Smith. and Van . Buren on the highway and was injured. The..other parties in the .automobile came hy• the .filling
ARK.] BALDWIN Et AL:, 'TRUSTEES MO. 'PAC. BD. '505 Go. v: COMPTON., 'Station Where Cleveland 'worked about 10 o'clock ' . a -• p d he *went' With theni.** They . Went to a. dance and stayed uatil about tWelve• o'cleck, and Mr. CoMpton went home'. After the . danee broke up the other appellees got in the car and decided' to ride aiound 'awhile and went to a sandwich shop where Cleveland . 'drank a glass of beer and the others had Coca-COlas; -Gleveland testified that the high-'way between rt. SMithand Vaa Buren was * under repair, but at that time, when , lie 'went over on. the' lit18, it was • clear all the way through.' He . had gone *through that morning: When'they got near the excavation they Saw an enibanknient„ or bank 'of dirt, and Cleveland applied the brakes, and had ample tithe to stop' the car befere it reached the • bank of dirt; but the' bankwaS on the ‘op;posite 'Side *of ,. the eXcaVation, and, according to' all of the evidence af 'appellees' witnesses, there was no barrieade, no flags and no light, and they could not see the-exCavation, did not know.it was there, and the ear pinnged into it . and they were thereby injured. .This eVidence.is contradicted by ; the witnesses Of. appellants' who say. that there, was t barricade,.and were seine F lights. The evidenee shOWs that the eXcaVatioa Was made *some time during the day hefore the' aecident ocenrred 'that 'night. Appellees kneW that . work Was being . ' done On' the street, but they did not know that *any work was being done ht the' erosSing where the accident beenrred.. Appellants' .first contention is that the evidence . is .insufficient to support :the . verdict., It is , not contended that there is no substantial evidence to support.the.ver-_ diet, but it is contended that the testimony of appellants' *witnesses showed that there had been a barricade Placed across the street ulion Ana there Was a red flag nd 'tern,' and that the' barricade and . lantern Were'there 'as 'late hS 1 o'clock,' seine:thirty Minutes prior'ito the aCcident,' and it is ,Argiied that* the testiMony 'of the Witne'sses fOr apPellees is iiot worthY*of belief. * It is the established rule of this court that, il.there anY substantial evidence to support the verdict 'Of the jury, the verdiet ,of the-jury as to* . its finding of 'facts 'is conclusive here. "This court has no poWer tO 'vacate' a
506 BALDWIN ET AL., TRUSTEES , MO. PAC. RD. [192
CO. v. COMPTON. verdict of the jury or the judgment based thereon on the weight of the evidence, but we are obliged on appeal to view the evidence in the light most favorable to the appel-lee, giving to it every reasonable inference in support of the verdict, and however much we may think the evidence preponderates against the finding of the jury, we may not interfere. This court has repeatedly pointed out that this is a duty and power resting solely with the trial 'judge to be exercised whenever, in his opinion, the verdict is against the clear preponderance of the evidence, and on that question his judgment is conclusive if there is any substantial conflict therein." American Co. of Arkansas v. Baker, 187 Ark. 492, 60 S. W. (2d) 572 ; General Talking Pictures Corp. v. Shea, 187 Ark. 568, 61 S. W. (2d) 430; Petty v. Ozark Grocer Co., 187 Ark. 595, 61 S. W. (2d) 60; Hough v. Leech, 187 Ark. 719, 62 S. W. • (2d) 14. Appellants' next contention is that the verdicts as to each of said cases are excessive and appear to have been the result of bias and prejudice. Appellees James W. Cleveland, Libbie Sue Compton and Doris Vest each obtained a judgment for $2,500. There is, we think, ample evidence of injuries to these three parties to sustain the verdict rendered in their favor. Wiles Compton and Ralph , Vest received judgments of $500 each. We think the evidence is sufficient to justify these verdicts. Doris • Vest, Libbie Sue Compton and James W. Cleveland all testified to serious and painful injuries, and there is nothing in the record tending to show either bias or prejudice. It is next contended that the court erred in refusing to , give instruction No. I requested by appellants. This instruction reads as follows : ` , `You are instructed that under the law and the testimony the plaintiffs have failed to make out a case against the defendants, and you are therefore 'directed to return a verdict for the defendants." , We have already shown that the evidence of the witnesses for appellees, if believed by the jury, was sufficient to sustain the verdict.
ARK.] BALDWIN ET' AL., TRUSTEES MO. PAC. R . 507' Co: 'V. COMPTON. AppellantS then discuss the instruction giv6n at their request, which instruction contained Certain portions •f the traffic rules 6f the City of 'Ft. Smith, and it is urged by the appellants that, 'because they complied with 'the traffic rules and becau§e, as they contend, it was' primarily the . duty of . the• city of Ft. Smith to Construct or reconstruct the sfreef, that they are -not liable. They call attention to aolli0 v. Ft. Mhith.,.73 Ark. 447; 84 S. W.. 480. This case is cited and relied on as holding that the city is.not liable. It WoUld, however, Make no difference whether the city was liable or not if , , the negligent act or 'wrongful conduct of appellants cansed the injury to apPelleeS while appellees were in the exercise of ordinary care for their own safety.. The cOurt in that case discussed the duties and functions of municipal corporations with reference to such duties and' functions when' representing and acting for the state or sovereign, and with reference to others as acting for themselves someWhat as 'a private corporation, and the court said : "When acting . in the' former capacity they are not answerable for the acts or omissions of their officers or agents, while when acting in the latter' 'capacity their l ia bility is ordinarily the same as that ot a private person. or corporation. The great difficulty and the great divergence of judicial opinion arise from the fact that no test has been formulated . by which to decide with 'unerring accuracy whether a particUlar act or omission .occurred in' the discharge of governmental' or qUasi PriVate duties.." At the time'this opinion was handed down there Were, fiVe Members' of - thiS court.. One* Of the 'jifstiées, curred in tbe jUdgment only, and another justice sented . 'Since that' deciSion, this court has held contrary to appellants' contention, one of the most recent cases being Missouri Pac. Rd. Co. v. Rirey; 185 Ark. 699,.49 , 'S. W. (2d) 897. This 'court in that case said: "The apPellant argues that, becauSe its ,line of railroad , and the excavation were lawfully *made on cite authority from the city Of Mit Springs, therefore, there was ne obligation on its part to warn of the existence of the ekcavation, but that this was the dutY 'of the'city; ThiS' contention is unSeund.
508. BALDWIN ET :AL., .TRUSTEES MO. PAC. RD. , [192 Co. v. ,COMPTON. In Strange v. Bodcaw Lbr. Co., 79 Ark. 490, 96 S. .1% T 152, a drain over a highway crossing was dammed by the permission of the county judge, so that a ,pond was formed on each side of the highway into which drain a horse fell and was drowned. The case was defended on. the ground, among others, that the, pond was made under rightful authority, and that tO protect travelers on the highway the defendant would be obliged to enter on the same to erect protecting il)arriers, which it had no authority to do. In dismissing this contention the court said: 'The fact that the pond was put there by permission of the county judge does not alter the case, for the permission of the county , judge cannot authorize acts dangerous to the public, or . relieve the defendant from the consequences of its oWn negligence.' " The court in the case of Railway v. Riley,. supra, further . said : " This position taken by the appellant that it was the duty of the city authorities to safeguard the highway, and its failure to do :so exonerates the appellant, is not tenable." 'Every, contention made , by appellants with : reference to the city of Ft. Smith is decided in the last case cited, adversely to appellants' contention. , Appellants' next contention is . that the , court . erred. in giving instruction No. 3 requested by appellees. That instrnction reads as follows : "You ard instructed that it Was the duty of the defendants . after they had dug or. caused to be dug an excavation or ditch across the publiC, highway in leaving same for the night to do whatever was 'practicable and reasonable to aVert danger or injury to travelers along the highway, and if harriers, signals, lights or other warnings .were reasonably necessary for that purpose and practicable, then it was their .duty to, coustruct and maintain them in places needed, if any.' Appellants' objection to this instruction is that it fails to.take into account-the fact that certain barricades and lights were placed as shown by the testimony, as warning and barriers for the protection of ,the public travel on the night of the particular accident. It is argued that the language of the instruction is such as to indicate that there had been no protection. We do not think the instructiomis subject to this criticism, hut the appellants
ARTc..] 502 did. not make . this objection tQ the trial court. The: objection was general. No specific objection was made. The instruction is • net inherently wrong, and no •error was Committed in giving it. • • • • It .is next contended, that instruction No. 4, given at the request of appellees, is erroneous .because.it . fails to take into , account the rules of law fixing the primary responsibility of the city of Pt . Shah as • a inatter of law, and leaves it to the speCulation of the' jury to ignore' the traffic rules: There was . fio Specific objection made to. this instruction, and Ale general , objection ;would not be sufficient to raise the question here argued by. the appellants. Bht this court has already , decided in the case of Misso,a6 Pao. Rd—Co. :v . Riley, ,.suprai .and. other cases, that the primary responsibility of the city 'of Ft. Smith did not : relieve the appellants from:negligence resulting in injury to other persens. • • . Appellants' . objection to. instructions Nos. 9, 10, 11, and 12Is that .they.. authorized the jury to assess :dam-. ages .not only for : !physical . pain and anguish,. but for mental pain and- anguiSh. It was not suggested to the trial court that these inStructions were erroneous because they 'included mental pain and suffering, and , there was no error in the court's giving . thesel instructions. • We find no error, and 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.