Summary
In St. Louis-San Francisco R.R. Co. v. Dyson, 207 Miss. 639, 655-656, 43 So.2d 95, we said that "trial courts are vested with wide discretion in the admission of rebuttal evidence and their actions will not be held erroneous to the extent of requiring a reversal unless the discretion was exercised to the prejudice of the opposite party.
Summary of this case from Crawford v. StateOpinion
No. 37199.
November 28, 1949.
1. Master and servant — unsafe appliances — railroads — defective switch.
When the testimony tends substantially to show that a switch to an interchange track was in such condition of disrepair that it could not be operated except by severe strain, and shows in detail what were the items constituting the defective condition; that the railroad company had notice of it, and that in the required performance of his duty as a brakeman, plaintiff was injured as a proximate consequence of such disrepair, the issue of negligence is properly submitted to the jury.
2. Master and servant — appliances — duty as to safety — normal use — instructions.
In the furnishing and maintenance of appliances, in this case a railroad switch, the duty of the master is to use reasonable care to maintain them in a reasonably safe condition for use by a normal man, such as generally engaged in the particular service, and is not required to guard against injuries due to an abnormally weakened condition of the servant, but this issue, if reasonably in dispute, is properly submitted to the jury under proper instructions.
3. Trial — burden of proof — preponderance of the evidence, meaning of.
The party upon whom rests the burden of proof must establish the requisite facts by a preponderance of the evidence and preponderance means superiority in weight.
4. Trial — preponderance of the evidence — instructions.
The jury cannot believe anything from the evidence unless it is proved by the greater weight of the evidence, and an instruction in which the word preponderance is omitted will not be deemed erroneous when several other instructions contained it in its proper bearing and one of the instructions correctly defined the term.
5. Federal Employers' Liability Act — substantive rights under — how determined.
In cases brought under the Federal Employers' Liability Act all matters of substantive right as distinguished from mere matters of procedure are determined by the applicable principles of the common law as interpreted and applied in federal courts.
6. Federal Employers' Liability Act — trial — instructions — damages not to exceed amount sued for.
An instruction which tells the jury that if they find for the plaintiff the amount of the verdict shall not exceed the amount sued for, that amount being large beyond all proper proportion to any actual damages is not erroneous in the trial of a case under the Employers' Liability Act, the verdict as rendered not being excessive.
7. Trial — master and servant — evidence as to condition of appliance alleged to have been defective.
Testimony of witnesses as to the present condition of an appliance alleged to have caused injury is admissible when it is shown by a person who knows the facts that the present condition is the same as it was at the time of the injury.
8. Trial — witness — discrediting by contradictory statements.
When the proper predicate is laid on the cross-examination of opponent's witnesses, a party may introduce testimony in rebuttal as to contradictory statements made by the witnesses for the purpose of discrediting their testimony.
9. Trial — witnesses — rebuttal evidence.
Trial courts are vested with wide discretion in the admission of rebuttal evidence, and there will be no reversal unless the discretion was exercised to the prejudice of the opposite party.
10. Trial — testimony in rebuttal — when admissible.
Whether proffered rebuttal testimony is proper the doubt should be resolved in favor of its reception provided (1) its reception will not consume so much additional time as to give an undue weight in practicable probative force to the evidence so received in rebuttal, and (2) the opposite party would be substantially as well prepared to meet it by surrebuttal as if the testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebuttal.
11. Trial — instructions — master and servant — omitting qualification that appliance must be reasonably safe.
An instruction that told the jury that they might find the master negligent if he failed to furnish a safe appliance, in this case a railroad switch, while technically erroneous in not containing the qualification reasonably safe, will not require a reversal where numerous other instructions properly set forth the qualification and in such manner that the jury could not have been misled as to the master's duty.
12. Damages — personal injury — medical testimony.
When the injury is internal, requiring a surgical operation, and the competent medical testimony sufficiently supports the verdict as to the amount thereof the court will not interfere.
13. Damages — personal injury — province of jury.
The fixing of the amount of the damages in a personal injury case is peculiarly within the province of the jury and the court will not interfere unless the verdict is not supported by competent and credible evidence and unless it is so large as to manifest bias, prejudice or passion on the part of the jury, — a shock to conscience.
14. Verdict — weight of the evidence, when not against — case in point.
When in an action for personal injury alleged to have resulted for a defective switch at an interchange track, plaintiff in his testimony detailed specific defects in which he was corroborated by an experienced trackman, and corroborated by another witness as to the difficulty in operating the switch, as against which the defendant offered several trainmen who testified that they had never noticed or encountered any difficulty in throwing the switch, but offered no evidence as to how the switch was installed or maintained, a verdict for the plaintiff will not be reversed as being against the great or overwhelming weight of the evidence.
Headnotes as approved by Hall, J.
D.W. Houston, Sr. Jr., and C.R. Bolton, for appellant.
There was no evidence whatever that the switch was defective at the time of the accident. It was examined three years after the accident by the witness, Owens, who had been a former section foreman and who was permitted, over the objection of the defendant, to state the condition which he found at the time he examined it three years later and which he claimed was a defective condition.
The defendant presented the testimony of a number of trainmen who worked over this alleged defective switch regularly for many years previous to the accident and also subsequent thereto and their testimony was that the switch was not defective, was in common and frequent use prior to that time and subsequently and no trouble had been found. They had all thrown the switch frequently without any mishap.
We respectfully submit that the court was in error in overruling the motion of the defendant for a peremptory instruction on the first count of the declaration and submitting the case to the jury on the question of liability arising out of the injury from the rupture of the peptic ulcer.
It is assumed that this rupture occurred when he undertook to throw the switch in question because the witness Dyson testified that at that time he felt a severe pain in his side and shortly thereafter he had to be taken to the hospital where it was discovered that he had a ruptured peptic ulcer. His claim that this was caused by the throwing of the switch was that it was coincident with the throwing of the switch while the undisputed evidence is that at the time he threw the switch, he had the ulcerated stomach condition which had existed for sometime previous and had certainly eroded through at least three linings of the muscular walls, although the plaintiff Dyson did not know that he had such condition, it being what is termed as "silent ulcer". Just what the condition of the ulcer was at the time of actual throwing of the switch is unknown, whether it had theretofore eroded through the outer lining and become more noticeable during the act of the throwing of the switch or whether the act of the throwing of the switch caused the final rupture cannot be determined from the testimony because nothing is known certainly except that when he reached the hospital the rupture was there. Just when it occurred, no one can say and the doctors are in disagreement as to whether or not exertion would cause the rupture.
The only proof that plaintiff made as to the failure of the defendant to exercise the care to provide a reasonably safe place for him to work was that at the time he threw the switch it was hard for him to throw and he felt the pain from the rupture, whenever it should have happened. He doesn't undertake to state that there was any defect in the switch other than it was hard to throw. In fact, that was all he knew about the switch.
It is to be borne in mind that the man who found it hard to throw and who testified about the difficulty of throwing it was indisputably a man with an impaired physical condition and it is not sufficient proof of negligence that a switch was defective because it was hard to throw by a man who was in a weakened condition that the evidence shows the plaintiff must have been in at that time. The evidence is that the defendant had no knowledge whatever of the weakened condition of the plaintiff and was under no obligation to provide for his safety beyond that of a man in ordinary physical condition. This court has held that the master is not required to provide care as to a workman beyond that of an average ordinary man unless he has notice of the impaired condition of the workman:
"In presenting himself for such work, taking wages therefor and making no complaint of any physical incapacity, he represented himself as capable of carrying more than any such load as 73 lbs. or 89 lbs. and he will not be heard to assert otherwise." Stated by this court in the case of Harris v. Pounds, 187 So. 891 with reference to what the master had the right to presume in the employment of a servant.
It is certain that defendant had no knowledge of the weakened condition of the plaintiff because he testified that he himself did not know it, but that such condition existed is indisputably shown by the testimony of Dr. Nutter, the surgeon who operated on Mr. Dyson, and who saw the condition existing in Mr. Dyson's body at the time of the operation and who testified positively that the ulcer had existed for sometime prior to the operation, regardless of how long it had existed, it certainly had preceded the incident of the throwing of the switch.
As to the condition of the switch at the time of the injury, there is absolutely no testimony for the plaintiff of any defect and he undertakes to establish it by inference from the fact that it was hard for him to throw at the time. It will be borne in mind that this difficulty in throwing of it was by a man in a weakened condition. It is shown by the witness, Edgeworth, who was the other switchman, that he did throw the switch at that time. He did not say that it was defective but simply that it wasn't as easy to throw as some switches and his signed statement which he admitted on the trial showed that he stated in it that it was not hard to throw.
The evidence for the plaintiff was that this was a switch on the interchange track and that it was one that was in use practically every day and the evidence was found by the plaintiff that he returned to this place three years after the accident and the switch was still in operation. The undisputed evidence for the defendant was that this switch was used constantly by the train crew, operating at that point practically every day and similar to other switches in the line of railroad, and that they were all able to throw this switch and there is no showing that there was ever any other injury or trouble in the throwing of the switch.
We contend that this evidence was wholly insufficient to establish negligence on the part of the defendant railroad and that liability could be assumed only by speculation. There is no evidence that anybody had ever had any trouble with the switch except a man with an ulcer which had eroded through at least three linings of his stomach at the time of the injury and the evidence is further that all of the persons who undertook to operate this switch did so without any injury or accident. This is indisputably the overwhelming weight of the evidence.
We have in this case the rather unusual situation of there being submitted to the jury who were untrained in medical matters, the determination of a medical question which even the medical men themselves are unable to decide and was in dispute. Even if this were a proper question to be left to the decision of the jury, the only basis for a decision that the switch was defective and the defendant had failed to exercise reasonable care to provide a reasonably safe place for its servant to work, was that an injury was suffered by a man in admittedly subnormal physical condition which was unknown to him and to his employer and from which it must be concluded that the switch was not unsafe for the average normal employee to operate when the proof is indisputable that no other person had ever received an injury from it and it had been used constantly for several years before and since the accident. This does not meet the requirement of the statute. The rule is well stated by the Supreme Court of the United States in the following case: "Liability arises from negligence, not from injury under this act. And that negligence must be the cause of the injury . . . the carrier's negligence must be a link in an unbroken chain of reasonably foreseeable events." Brady v. Southern Railway Co., 88 L.Ed. 239, 245.
We respectfully submit that the proof in this case failed to establish negligence on the part of the defendant and that the peremptory instruction should have been granted.
Noel Monaghan and W.W. Ramsey, for appellee.
T.T. Dyson was engaged in interstate commerce in the operation of the train from Amory, Mississippi, to Demopolis, Alabama, and when he undertook to throw a defective switch at Demopolis, Alabama, which required excessive strain and exertion he felt a severe pain in his abdomen, describing it by saying "when he threw the switch, it seemed as if it would cut him in two with a knife", "it just jerked him in two, and he went blind".
The switch was so hard to throw by reason of numerous defects; the switch lever could not be pulled around far enough to go into the slot and the switchmen would have to hold the switch lever by leaning against it with their hips.
The railroad company had section foremen employed at that point whose duty it was to maintain the switches and the plaintiff testified that a week prior to the injury that he went to the section foreman and told him about the condition of the switch.
This case is brought under the Federal Employers' Liability Act, Title 43, Section 51.
Both state and federal courts are bound by the decisions of the Supreme Court and the United States Circuit Court of Appeals in the interpretation and application of the Federal Employers' Liability Act. This rule is so generally recognized that we would point only to a few of the decisions noted in 45 USCA 137, 138.
The Federal Employers' Liability Act has been liberally construed by the United States Supreme Court and the federal courts and the liberal decisions of these courts are controlling on the state courts for the purpose of protecting employees in most hazardous and dangerous working conditions and occupations. On this point we quote briefly from 45 USCA, page 135, Pocket Part page 9: "12 — Liberal. This chapter was designed to apply liberally for protection of railroad and other employees. Lukon v. Pennsylvania R. Co., C.C.A. (Pa. 1942), 131 F.2d 327."
A case exactly in point with this case is Stewart v. B. O., 137 F.2d 527. In the Stewart case plaintiff, by reason of overstraining and overexertion in throwing a switch which was unnecessarily hard to throw by reason of the negligence of the defendant to properly maintain the switch, suffered an injury to the heart from which he died a short time thereafter. Defendant in the Stewart case made exactly the same defense as made in the case at bar, claiming that the switch was not defective in any way; that Stewart had a bad heart and died from natural causes; that the strain had nothing to do with his death.
Numerous doctors testified that a strain could not cause the heart condition; others testified that the strain could produce such a condition, and, the court held that all of this was a question of facts for the jury to determine. We refer to the opinion in that case as if a part of our brief herein.
Another case in point is Louden v. Hansen, 134 F.2d 348. This is a case where an employee was injured by a defective switch, and the court held that the employer had a continuing duty to exercise due care to see that the instrumentalities and appliances where the employee was required to work were maintained in a reasonably safe condition. We likewise refer to that opinion.
Another case very much in point here is Neff v. Pennsylvania R.R., 173 F.2d 931.
It is generally ruled and a well established law in both state and federal courts that where there was a pre-existing disease, and by reason of negligence, such disease is aggravated or activated, resulting in disability, that there is liability. See Stewart v. B. O., 137 F.2d 527, supra; also Arndt v. D.H. Holmes Co., Ltd., 119 So. 91; Caldwell v. City of Shreveport, 90 So. 763; Fox v. United Chemical Organic Products Co., 86 So. 311; Oliver v. Yellow Cab Co., 98 F.2d 193; Patterson v. Steamship Jefferson Myers, 45 F.2d 162; Louisville Nashville R.R. Co. v. Wright, 80 So. 93; Piper v. Spiro, 188 So. 665; Behan v. John B. Honor Co., 78 So. 589; Goins v. Moore, 143 So. 523; Donahoe v. Scharfenstein Son, 98 So. 256.
A case which contains many of the precise points which are argued in the present controversy was decided by the Supreme Court of the United States on February 3, 1947. Ellis v. Union Pacific R. Co. appears in the Advance Sheets, 91 L.Ed. 433. It answers so many of the arguments of the railroad that we cite the opinion in full.
An often quoted and most important recent decision under the Federal Employers' Liability Act is the case of Lavender v. Kurn, decided March 25, 1945, 327 U.S. 645, 90 L.Ed. 916. The case involved a fatal injury to a railroad employee in which there was considerable speculation as to just how the injury did occur. There was a very slim theory on which the railroad could have been held liable. The railroad's testimony was rather strong to the contrary of plaintiff's opinion.
One of the very latest decisions of the Supreme Court of the United States, decided in June 2, 1947, quotes from and reaffirms the rule announced in Lavendar v. Kurn, supra. This is the case of Myers v. Reading Company, 91 L.Ed. 1199. The court again held that the case should have gone to the jury and reversed the lower court's holding that a directed verdict was proper. See also Tennant v. Peoria Pekin Union R. Co., 321 U.S. 29, 88 L.Ed. 520 and Clark v. Chicago Northwestern Railway Co., decided December 17, 1945, 64 F. Supp. 579, and Railway Express Agency, Inc. v. Mallory, 168 F.2d 426, and Larson v. Chicago N.W.R. Co., 171 F.2d 841.
Finally, the Supreme Court of the United States has reviewed the whole problem involved here. It has summarized the law and treated the whole philosophy of the Employers' Liability Act in the case of Wilkerson v. McCarthy, 93 Supreme Court Law Edition Advance Opinions 403, decided January 31, 1949.
The measure of damages under the Federal Employers' Liability Act cases are inseparably connected with the right of action and must be fixed in accordance with the rules laid down in the United States Supreme Court and the Circuit Court of Appeals.
In support of our position in this case, we call attention to the case of C. O. v. Kelly, 214 U.S. 475 in which the court said: "The question of the proper measure of damages is inseparably connected with the right of action, and in cases arising under the Federal Employers' Liability Act, it must be settled in accordance to the general principle administered by the Federal Courts."
The general rule as to the elements that must be considered in the measure of damages is clearly set out in 45 USCA 542 as follows: "Instructing the jury in an action under this chapter that they may take into consideration in assessing the damages, the `pain and suffering of the plaintiff, his mental anguish, the bodily injury sustained by him, his pecuniary loss, his loss of power and capacity for work and its effect upon his future, not however in excess of $35,000, as to them may seem just and fair', is not objectionable as permitting the jury to indulge in speculation as to future results, and as leaving the amount of damages to conjecture without regard to the evidence, where the court explicitly enjoined upon the jury that there must be a proximate and causal relation between the damages and the defendant's negligence, and the reference to the sum mentioned was a limitation of the amount stated in the declaration. Chesapeake O. Ry. Co. v. Carnahan, (Va. 1916), 36 S.Ct. 594, 241 U.S. 60 L.Ed. 979, affirming, 86 S.E. 863, 118 Va. 46."
Appellee brought suit against appellant, an interstate carrier, under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., for the recovery of damages for injuries alleged to have been sustained by him while in its employment as a brakeman on one of its interstate trains. The declaration is in two counts, the first being for an accident alleged to have occurred on April 30, 1944, and the second being for an accident alleged to have occurred about two months later. Upon conclusion of all the evidence the trial court granted a peremptory instruction for appellant upon the second count, and submitted to the jury the issue of negligence raised by the first count. The jury returned a verdict in favor of appellee for $7500.00 from which the railway company appeals. No cross-appeal has been prosecuted respecting the disposition made of the second count.
Appellant's first contention is that it was entitled to a peremptory instruction on the first count. (Hn 1) It was charged and established by appellee's proof that a switch to an interchange track at Demopolis, Alabama, was maintained in such condition that it could not be thrown without undue and great exertion, that for this reason it was not reasonably safe, and that while engaged in turning the switch in the discharge of his duties appellee was subjected to such a severe strain as to cause the rupture of a stomach ulcer, which up to that time he did not know existed. This necessitated a serious surgical operation from which appellee contends, and his proof tends to establish, he has never fully recovered. According to appellee's evidence the slots on the switch stand into which the lever fitted were worn back about one-half inch, the bridle rods connecting the bottom of the switch to the rails to be moved when turning it were held in place with brace plates that were tight on both ends, and the pointed rail did not fit against the other rail as it should, and as a result of these conditions the switch was unusually hard to turn, so much so that on a previous occasion about a week before the injury appellee was unable to turn the switch lever with his hands and arms and was compelled to throw the weight of his body against it from his hip in order to permit the movement of cars onto the interchange track, which alleged condition he testified was then reported to the section foreman who was charged with the duty of maintaining the switch and track. Moreover, there was other evidence that the condition had existed a sufficient length of time that appellant should have known thereof by the exercise of reasonable care. In our opinion this evidence is sufficient to establish negligence in the maintenance of the switch and the case was therefore properly submitted to the jury.
(Hn 2) However, it is further argued in this connection that it was only the duty of appellant to exercise reasonable care to keep and maintain the switch in a reasonably safe condition for use by a normal man, and that the proof is insufficient to show the probability of injury to a normal man in turning the switch. We are of the opinion that the proof was sufficient to make a jury issue of the question. The appellant obtained an instruction which told the jury that it was not liable if the switch was in a reasonably safe condition for use by trainmen generally who were charged with the duty of throwing the same and if the plaintiff's injuries were due to his weakened condition because of the stomach ulcer. It was fitting and proper that the jury should be so charged, as this was a matter solely for determination by the jury.
It is next contended that one of appellee's instructions is erroneous because it authorized a recovery of such damages as the jury "may believe from the evidence" he has sustained. The specific complaint is that the instruction should have said "may believe from a preponderance of the evidence." (Hn 3) The rule on the burden of proof is that a party must establish the requisite facts by a preponderance of the evidence. "Preponderance" means superiority in weight, 49 C.J. 1331. (Hn 4) The jury cannot believe anything from the evidence unless it is proven by the greater weight of the evidence. When facts are established by a preponderance of the evidence, then the jury may believe those facts from the evidence, and it is wholly unnecessary for an instruction to contain the word "preponderance" in such instances as are illustrated by the foregoing. See Gregory v. Williams, 203 Miss. 455, 467-468, 35 So.2d 448, 451, and the authorities therein cited. There is nothing misleading in this instruction and the jury in this case could not possibly have misunderstood that the evidence should preponderate in favor of appellee, for not only did appellee obtain four other instructions which used the word "preponderance" but he also obtained an instruction defining it, and appellant itself obtained an instruction that the burden of proof is upon the plaintiff to make out his case against the defendant by a preponderance of the evidence and if the jury was not satisfied from the evidence that the plaintiff has done this, then it is the sworn duty of the jury under their oaths to return a verdict for the defendant, and further that if the jury believe that the evidence in the case is evenly balanced it is their sworn duty to find for the defendant. We, therefore, find no merit in this contention.
Complaint is next made against some of the instructions for appellee in authorizing a recovery "not to exceed the amount of $55,450.00, the amount sued for". Appellant relies upon some of the Mississippi authorities which have condemned the practice of using such expressions in plaintiff's instructions and wherein excessive verdicts have been set aside because of such use. We think it proper that we here sound a note of warning to the bar of the state that verdicts obtained by this practice may be vitiated. The last case in which this question was raised in this court is General Geophysical Co. v. Brown, 205 Miss. 189, 38 So.2d 703, 706, where we affirmed a verdict for plaintiff notwithstanding the use of a similar phrase, because we there found that the damages awarded were not excessive and the instruction, as in the case at bar, authorized a verdict only "in an amount reasonable to compensate him". Again we repeat that in the practice in this state the use of such expressions endangers a verdict and may result in its reversal. The case at bar, however, is brought under the Federal Employers' Liability Act, and it is (Hn 5) the rule in such cases that all matters of substantive right, as distinguished from mere matters of procedure, are determined by the applicable principles of the common law as interpreted and applied in federal courts. New Orleans Northeastern R. Co. v. Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167. See also the case of Brown v. Western Railway of Alabama, 70 S.Ct. 105.
Turning then to the federal decisions we find that in at least two cases the Supreme Court of the United States has refused to condemn a similar instruction. (Hn 6) The identical point was raised in Norfolk Western R. Co. v. Earnest, 229 U.S. 114, 33 S.Ct. 654, 656, 57 L.Ed. 1096, and it was held that "the words now criticised could only have been understood as marking a limit beyond which the jury could not go." And in Chesapeake Ohio R. Co. v. Carnahan, 241 U.S. 241, 36 S.Ct. 594, 595, 60 L.Ed. 979, it is said: "It is also objected that the instruction `allowed the jury to indulge in speculation and conjecture; invited their attention to the sum of $35,000, and allowed the jury to give such sum as damages as to them might "seem just and fair" without stating that the damages could be only such as were proved by the evidence to have proximately resulted from the negligent act complained of.' The objection is untenable. As we have seen, the court explicitly enjoined upon the jury that there must be a proximate and causal relation between the damages and the negligence of the company, and the reference to the sum of $35,000 was a limitation of the amount stated in the declaration. There could have been no misunderstanding of the purpose of the instruction." In view of these decisions, and the further fact that we have concluded that the verdict is not so excessive as to require a reversal, we find no merit in appellant's criticism of the instructions under consideration.
(Hn 7) Appellant assigns error in admitting the testimony of appellee's witness, Owens, who examined the switch long after the accident and testified as to the defects which he found therein. Appellee was present with Owens at the time of his inspection and testified that the switch was then in the same condition as it was at the time of the injury. This makes Owens' testimony competent and we find no error in its admission.
Appellant also contends that the trial court erred in permitting appellee to testify in rebuttal regarding certain statements which he says were made to him after the accident by appellant's witnesses Jones and Morgan. (Hn 8) Proper predicate was laid for the reception of this testimony in the cross-examination of Jones and Morgan. We do not see how the evidence could have been offered by appellee until after appellant had rested its case. The evidence was certainly admissible for the purpose of seeking to discredit Jones and Morgan. Furthermore, (Hn 9) trial courts are vested with wide discretion in the admission of rebuttal evidence and their actions will not be held erroneous to the extent of requiring a reversal unless the discretion was exercised to the prejudice of the opposite party. Indeed this court has held that where the question is doubtful as to (Hn 10) whether the proffered rebuttal testimony is proper the doubt should be resolved in favor of its reception provided "(1) its reception will not consume so much additional time as to give an undue weight in practical probative force to the evidence so received in rebuttal, and (2) the opposite party would be substantially as well prepared to meet it by surrebuttal as if testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebuttal." Roney v. State, 167 Miss. 827, 150 So. 774, 776.
Error is also assigned in the granting of an instruction to appellee which recites: (Hn 11) "The court instructs the jury for the plaintiff in this case that if you believe from a preponderance of the evidence that the defendant was negligent in failing to use reasonable care to maintain the switch at Demopolis, Alabama, in a safe condition," etc. Technically this instruction is erroneous in that it failed to contain the word "reasonably" before the word "safe". If this were the only instruction defining appellant's duty we would feel impelled to reverse the judgment of the trial court, but we find from the record that the appellee obtained three other instructions which correctly defined appellant's duty and that appellant obtained six instructions which correctly defined it, one of which told the jury, in part: "The court charges the jury that the defendant did not owe the plaintiff the duty to furnish him an absolutely safe switch with which to work, but only owed him the duty to exercise reasonable care to furnish a reasonably safe switch such as was and is used on standard railroads and to keep same in a reasonably safe condition." Appellant obtained eighteen instructions which fully covered every conceivable principle of law applicable to this case, and when we consider all the instructions as a whole, as we must presume the jury likewise did, we cannot say that the technical error in appellee's above quoted instruction was such as to mislead or misinform the jury as to appellant's duty, and we therefore find that the error is harmless and is not sufficient to require a reversal.
There are several other assignments respecting the granting or refusal of instructions, and we have carefully examined all of these and find that they are without merit because the given instructions for appellee stated correct principles of law, and the refused instructions for appellant were incorrect and were properly refused, and, furthermore, the principles sought to be stated therein were correctly stated in other instructions which were granted to appellant. It would unduly extend this opinion to treat each of the instructions separately.
It is finally contended by appellant that the trial court erred in overruling its motion for a new trial. One point is that the verdict is so large as to shock the conscience and evince passion and prejudice on the part of the jury, and the other is that the verdict is contrary to the overwhelming weight of the evidence on the question of liability.
As to the amount of the verdict, it is not so large as to shock the conscience of any member of this court. Appellee sued for two injuries, both of which were serious and both of which required surgical operations. For both injuries we do not feel that a verdict for four times the amount awarded would have been excessive. The jury was clearly charged that they could not award any damages whatsoever for the second injury and they could not have misunderstood their duty to confine the damages to the first injury. (Hn 12) Appellee established a case as to his first injury by competent medical testimony which sufficiently supports the verdict. (Hn 13) The fixing of an amount to be awarded as damages in a personal injury case is peculiarly within the province of the jury, and with its decision this court connot interfere unless the verdict is not supported by competent and credible evidence and unless it is so large as to manifest bias, prejudice and passion on the part of the jury, and, as sometimes said, to shock the conscience. This is not a case where we feel that we should encroach upon the province of the jury, and we do not feel that the verdict is beyond the bounds of reason, particularly when consideration is given to the decreased purchasing power of the dollar.
Finally, we are unable to say that the verdict is contrary to the overwhelming weight of the evidence on the question of liability. (Hn 14) Appellee testified as to specific defects in the switch, and was corroborated by his witness, Owens, an experienced trackman. Another of his witnesses, a trainman, testified that the switch was hard to throw. As against this the appellant offered several trainmen who testified that they had never noticed or encountered any difficulty in throwing the switch; it did not offer any trackman to show how the switch was installed and maintained. As is the case in almost all such suits the evidence was conflicting. The jury had the benefit of observing the demeanor of all the witnesses, and it was its sworn duty to weigh and consider all the evidence and to determine its preponderance and arrive at a just and righteous verdict. We cannot say that the verdict which it returned was contrary to the overwhelming weight of the evidence, and consequently the judgment will be affirmed.
Affirmed.