Alexander v. Richmond & Danville Railroad

Action for Damages — Injury at Railroad Grossing — Negligence of Railroad — Instructions to Jury. 1. Where, in an action against a railroad for injuries received by plaintiff at railroad crossing, an instruction asked for by defendant was “that if plaintiff, by the exercise of her senses, could have heard the approaching engine, and failed to do so, and her injury was caused thereby, it was negligence on her part, and the answer to the issue (as to contributory negligence) should be, ‘ Yes ’ ”: Held, that while it would have been proper to give the conclusion “ the answer should be ‘ Yes,’ ” yet the refusal to give it was not error, since the failure to do so could not mislead the jury or prejudice the defendant. 2. In an action against a railroad for injuries received by plaintiff at a railroad crossing it appeared that there were in the neighborhood of the crossing a factory and a foundry both making a noise like a running train. Defendant asked the Court to instruct the jury, on an issue as to contributory negligence, “ that if the cars on the track cut off plaintiff’s vision, and the noise of the factory and machine-shop drowned other noises, it was the duty of plaintiff' to use her sense of hearing all the more cautiously, and if she failed to use greater than ordinary caution the answer should be, ‘Yes.’ ’’ It was not error to substitute for the words “ the answer to the second issue should be, ‘Yes,’” the words “it would be negligence.” 3. Where a railroad company kept cars standing on side-tracks near a street crossing where plaintiff was injured, an instruction to the jury, in an action for damages, that “defendant had the right to leave its cars standing on the track provided it kept open a sufficient passway,” was as favorable to defendant as it was entitled to. 4. Where, in an action for damages for an injury received at a railroad crossing, plaintiff testified'that she “held up very slow” as she was driving across, and, hearing no bell, which she had heard the clay before while at the crossing, notwithstanding the noise .of the factories on each side of the street, concluded that no engine was approaching, and drove on: Held, that it was not necessary for her to get out of the buggy and go beyond the cars to look up and down the track, or to stop and listen for an approaching engine when no signal was given of its approach. 5. Where the substance of an instruction prayed for has already been given in response, to another request, it is unnecessary to repeat it. (i. A prayer for instruction embracing- a general proposition fully covered in instructions already given was properly refused. 7. Requests for instructions that “the evidence shows that plaintiff’s . injury was caused by her own negligence,” and that if the jury believe the evidence plaintiff' “did not use reasonable care in crossing the railroad, and thereby contributed by her own negligence to her injury,” were properly refused. 8. Where the jury liad been instructed as to the duty of a plaintiff, in a suit for damages for an injury, to use reasonable and proper care for her recovery, in such manner as to indicate that otherwise she could not recover damages at all, the defendant cannot complain of a refusal of an instruction that, if she did not use such care, she eould only recover for such loss of time and medical bills as would reasonably result under proper treatment. 9. Where, in an action for injuries caused by negligence of defendant, it appeared that plaintiff was herself a practicing physician, and immediately after the accident went to see a patient, that she had not been kept at home nor carried her arm in a sling, but continued to practice her profession as a physician and to drive with her injured hand, it was not error' to refuse a special instruction “that plaintiff did not use the proper means for restoring herself to health,” and could not recover for the injury caused by her own neglect, when the question of such neglect had already been left to the jury under a proper charge.

Civil aotiox, tried at Fall Term, 1892, of the ¡Superior Court of MecKLUNbuiiu County, before Graves, J., and a jury. The plaintiff alleged that in attempting to cross defendant’s railroad at the crossing at Fifth street in Charlotte, with her horse and buggy, she was carelessly and negligently run into by defendant’s shifting engine, and that she was injured in her person and property — her buggy broken, her horse frightened and thereby rendered less easily manageable, and her shoulder bruised, causing a permanent injury to her right arm — and claimed $1,900 damages. Defendant denied that plaintiff’s injuries were caused by its engine, and charged plaintiff with a failure to exercise ordinary care in attempting to make the crossing. The following issues were submitted: 1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? 2. Did the plaintiff contribute to her injury by her own negligence ? 3. What damage did plaintiff sustain? Plaintiff’s counsel agreed after the pleadings were read that she was entitled to compensatory damages only. Plaintiff in her own behalf testified that she was a regularly licensed physician engaged in the practice of her profession. “ On the 17th April, 1891, on my way to visit a patient, I attempted to cross defendant’s railroad at the Fifth street crossing; it was about 5 i\ M.; I was driving my horse and buggy and had in the buggy with me a colored boy eight or ten years old; before crossing track I pulled up my horse to hear if there was any approaching train; there were box cars on one of the tracks on both sides of the street; this was on the first track and an engine standing to the left; those were all stationary; I heard no bell ring; I did not see the engine that struck me until it was within a few feet of me; the engine was running backward towards Trade street, which was the next street to my left as I crossed; it was pushing the tender, and it was the tender which struck my buggy; I was sitting on the right side of the buggy; the buggy was struck — one wheel was broken and the other wheel ruined; the horse fell, but soon got up and ran; I was thrown first up against the side of the buggy, striking my shoulder against one of the upright pieces or bows which hold up the top of the buggy; I then fell down into the foot of the buggy; I held on to the lines and stopped the horse in some fifty or seventy-five feet; the fall against the top bruised my right arm near the shoulder and the fall into the front bruised my left side slightly ; my arm -was hurt; I did not feel the pain for half an hour; then I felt pain in my shoulder; I went on from the place where the buggy was stricken to visit my patient, a sick child; when I got home I had a nervous shock; there was a dull, aching pain in my shoulder, which has continued ever since. The railroad is accustomed to ring the bell at the crossings.” On cross-examination she testified: “I do not say I came to a full stop; I held up very slow; I had crossed there the evening before and that morning; Fifth street is open beyond this crossing; this was the railroad yard; there were several tracks there; I was familiar with the Trade street crossing; there are gates there which are lowered when there is danger and raised when there is none; Oates’ factory is on one side and Wilkes’ foundry and machine-shop on the other side of Fifth street at this crossing; both the factory and foundry were running and making a noise; I heard the bell at the same place the evening before, when the factory and foundry were both running. Dr. Meisenheimer and my father, who is also a physician, were called in that same evening and examined me; I have been examined since I brought suit by l)rs. Meisenheimer, Graham and Brevard — once last February and once a week or so ago by Drs. Meisenheimer and Brevard; Dr. Graham w7as out of the city the last time; they examined me for the purpose of ascertaining the extent of my present condition so as to be able to testify. I went to see my patient immediately; I have not been kept in the house and never carried my arm in a sling; I did not stop from my profession; used my arm as little as possible; I drive the same horse yet; drive with my right hand — the one that was hurt.” One Bostwick, witness for the plaintiff, testified: “ I was sitting in my door- — could see the crossing from it; saw Dr. Alexander rein up as if to look and listen; then she drove across; I did not hear any bell or warning given by the engine; there is a slight up grade from a point about one hundred yards up the track to Fifth street; tire engine was rolling slowly, without steam up, to within a few yards of the crossing, and then steam was put on and the speed increased to six or eight miles an hour; I examined the place a short time afterwards; she could not have seen the approaching engine.” Dr. J. B. Alexander, for plaintiff: “lam a physician; am in the drug business; the plaintiff is my daughter; I did not see my daughter, the plaintiff, until I got home; her arm was bruised' and discolored; I sent for Dr. Meisen-heimer; we could not tel 1 much about th e inj ury; it has gradually grown worse; the action of the arm is greatty impaired; the shoulder is lower than the other; the shoulder-blade is dislocated and there is a slight curvature of the spine; all of it is the result of the blow — at least I know of no other cause.” Dr. Meisenlicimer,for plaintiff, testified: “I examined the arm that day or the next and found it blue from the blow; discolored on outside; I found no crepitation; she complained of pain; I saw the arm again last February with Drs. Graham and Brevard; I found crepitation then, a creaking sound; I examined it again a short time ago and found the crepitation increased, the shoulder-blade drawn around one inch further than the other; I think the injury was caused by the blow; in my opinion it will be a permanent injury.” On cross-examination witness stated: “The scapula or shoulder-blade is drawn around by contracting muscles; I do not think driving could pull the shoulder blade around; I think probably it will be permanent; I do not think there was a rupture of the ligament; it is possible it might have been overlooked; rest is good for all joint troubles; it is the proper treatment.” Dr. Brevard, for plaintiff, testified: “I examined plaintiff’s arm last|spring, with Drs. Meisenlieimer and Graham; found crepitation in shoulder joint; some depression of the shoulder; I incline to think the injury is permanent; the bone has been jammed into the socket and injured; on second examination a short time ago with same doctors I found the scapula moved forward about one inch; the injury was from the blow on the shoulder; it would lessen the strength of the arm and render it less able to bear continued exertion, and is a great injury to a physician; rest is the proper treatment for injury to joints; it would have been better to have kept it in a sling; any exertion of that arm and the muscles would tire and irritate the injured part; driving would be bad for it; rest is the proper treatment of injured joints, so far as I know; I should prescribe rest for it now.” Plaintiff then introduced the town ordinance limiting the speed of engines running through the city to four miles and requiring them to ring bell at crossings, and prohibiting the blowing of the whistle. Plaintiff rested. Defendant offered J. AY. Iveeter, who swore that he was running the engine; that he was what is known as a “hostler” in the yard of defendant; that he was running five or six miles ail hour and not ringing the bell because the bell rope was on the fireman’s side and he could not reach it; that his helper or fireman was riding in front on the tender; was there for the purpose of changing the switch just below Fifth street so as to let the engine go over without injury, and to look out for people on the track of attempting to cross it; that he had been letting his engine roll so as to stop at Fifth street and allow the helper to get down and change the switch, but just before reaching Fifth street he discovered that the switch had been changed by some one and was in proper condition to lot him through; that the engine did not have way enough 'on it; was not running fast enough to carry him over the street, and he had just reached up to put on steam when he saw the buggy; could not say whether he put on any steam or not; did everything he could to stop when he saw the buggy only a few feet from the tender, but could not, and rolled on some twenty or thirty feet across the street; the helper, Nelson, got off immediately and went to plaintiff, but witness could not go at once, until he could secure his engine, which was on the main line; as soon as he could do this he saw from the fireman’s window that plaintiff was leaving; there are four tracks across the street there; in going in the direction the plaintiff was traveling the first track you crossed was the Oates spur track; no cars on it; the next was a side-track, called the factory track; on this track there were box cars standing on the right side of ■the street and an engine standing headed toward the street, on the left side ; I was running on the next track, which is the main line, and beyond me was the fourth track, a side track known as the cemetery track.” In proper time and in writing the defendant asked special instructions, some of which were refused and some were given in the very words of the prayer. Some were refused and not given in the very words asked for, but were given as the opinion of the Court in the general instructions given in the written charge. The first prayer was given, and no exception is made to that. The second prayer was: “If the plaintiff, by the exercise of her senses, could have heard the approaching engine and failed to do so, and her injury was caused thereby, it was negligence on her part, and the answer to the second prayer should be, ‘Yes.’ ” The Court, being of opinion that defendant had no right to have the legal proposition embraced in the prayer, gave the instruction as asked for, down to and including the words “negligence on her part,” and refused to add the remaining words, “and your answer to the second issue should be, ‘ Yes.’” Defendant excepted because the whole prayer was not given, because the words were omitted, “and your answer to the second issue should be, ‘ Yes.’ ” The third prayer was: “The defendant had a right to leave its cars on its side-track, and if this was the cause of the injury the answer to the first issue should be, ‘ No.’ ” The Court refused to give the instruction thus asked for, and said defendant had the right to use its track across the public highway and to leave its cars standing on the track, provided it kept open a sufficient passway. To this the defendant excepted. The Court, in answer to the prayer of defendant for instruction number one, had given in the words of the request this instruction: “The burden is on the plaintiff to show that the negligence of the defendant was the proximate cause of her injury, and unless she shows this by a preponderance of the evidence the answer to the first issue should be, 1 No.’ ” The fourth prayer for instruction is as follows: “The fast running of the defendant’s engine and its failure to ring the bell, and any other negligence it may have been guilty of, did not relieve the.plaintiff from taking the ordinary precaution for her own safety, and if her negligence was the proximate cause of her injury the answer to the second prayer should be, ‘ Yes.’ ” This instruction was not given entire as asked for, but it was given down to and including “the proximate cause of her injury,” and the Court added “she can not recover,” and omitted the words “the answer to the second prayer should be, ‘ Yes.’ ” To this defendant excepted. The fifth instruction asked for was: “If plaintiff heard, or could, by reasonable diligence, have heard the approaching train, and attempted to cross before it reached the crossing, and her injury was the result of her miscalculation, the answer to the second prayer should be, ‘Yes.’ ” This prayer was given as prayed for down to and including the word “miscalculation,” and the Court added, “she could not recover,” and declined to give “the answer to the second issue should be, ‘ Yes.’ ” To this the defendant excepted. The sixth instruction asked for was: “If the cars on the track cut off the plaintiff’s vision, and the noise of the factory and machine-shop drowned other noises, it was the duty of the plaintiff to use her sense of hearing all the more cautiously, and if she failed to use greater than ordinary caution the answer to the second issue should be, ‘Yes.’ ” The Court gave the instruction asked for in the very words down to and including the word “caution,” and added “it would bo negligence,” and refused to give the words “the answer to the second issue should be, ‘Yes.’ ” And to this the defendant excepted. The seventh instruction asked for was as follows: “ Under the circumstances of this case, as shown by the evidence, it was the duty of the plaintiff to get out of her buggy and go to a point past the cars of the side-track, where she could see up and down the tracks, and if she failed to do this, and such failure was the cause of her injury, the answer to the second issue should be, ‘Yes.’” This was refused, and defendant excepted. The defendant asked for instruction numbered 7a, as follows: “Under the circumstances of this case, as shown by the evidence, it was the duty of the plaintiff to stop to look and listen, and if she failed to do so, and her injury was caused thereby, this was contributory negligence, and the answer to the second issue should be, ‘Yes.’ ” The Court, being of opinion that this had been, in substance, already given, refused it. And to this the defendant excepted. The defendant asked for instruction numbered eight, as follows: “The fact that the plaintiff is a woman makes no difference. The degree of care she was required to use was that which a man should have used, and if a man, in the possession of his senses, could, in her situation, have avoided the accident by the use of reasonable care, the answer to the second issue should be, ‘Yes.’” The Court had instructed the jury: “It makes no difference in applying the law that the plaintiff is a woman. She is under, in respect to this case, the same rules as a man.” The Court refused the instruction in the words of the prayer, and defendant excepted. The ninth instruction asked for was in these words; “If a man, in possession of his senses, could by reasonable care have heard or seen the approaching engine, the plaintiff is presumed to have seen or heard it.” The tenth prayer was as follows: “The evidence shows that plaintiff’s injury was caused by her own negligence, and the answer to the second issue should be, ‘Yes.’” Both the foregoing prayers were refused, and the defendant excepted. The defendant asked for instruction 10a, as follows: “It was the duty of the plaintiff to use the proper means for her recovery from any injury she sustained by the accident, and if she failed to do so she can only recover for such injury, loss of time and medical bills as would reasonably 'flow from the injury with proper treatment.” This prayer was refused in the words asked, and the Court in response gave the instructions set out in the charge, and to this defendant excepted. The defendant further asked instruction number 11, as follows: “Plaintiff cannot recover anything on account of any increased damages or injury to herself, caused by her own neglect and failure to adopt a reasonably proper treatment of herself.” (Iiis Honor states, “My recollection is that charge was given. I find on examining the prayers presented by defendant that I marked on the margin opposite each prayer, ‘given,’ if I intended to give, and ‘refused,’ if not to be given. I did not make any mark on the margin opposite this prayer”). Number twelve prayer for instruction was: “If the jury believe the evidence of the plaintiff herself she did not use reasonable care in crossing the railroad and thereby contributed by her own negligence to her injury, and the answer to the second issue should be ‘ Yes.’ ” Number thirteen prayer was as follows: “If the jury believe the evidence plaintiff did not use the proper means for restoring herself to health, and she can therefore recover nothing for any injury caused by her own neglect.” Both the foregoing prayers were refused, and the defendant excepted. The jury found all the issues in favor of the plaintiff and assessed damages $1,500, and after refusing motions to set aside the verdict as being against the weight of the evidence and as awarding excessive damages, and for a new trial, the Court gave judgment for the plaintiff, and defendant appealed.