
    No. 265.
    J. Bailey Peyton vs. Texas and Pacific Railway Company.
    It is negligence on the part of a railroad company, in miming* accommodation trains through a c-ity to a fair grounds in the suburbs, where large numbers of people congregate around the station, to nse an inferior locomotive, run by a fireman instead of a skilled engineer, and to run its trains at a dangerous speed in approaching the station.
    It is not contributory negligence in a person to risk 1ns life or place himself in a position of great danger, in an effort to save the life of another or to rescue another from a sudden peril or great bodily harm.
    “ The law has so great a regard for human life that it will not impute negligence to an effort to proserve it, unless mado under such circumstances as to constitute rashness in the judgment of prudent persons.”
    The allowance of excessive damages by juries for personal injuries must be discountenanced.
    
      APPEAL from the First District Court, Parish of Caddo. moles, J.
    , M. 8. Jones, M. O. fflstner and Hell and Randolph for Plaintiff and Appellee:
    1. The law lias so great a regard for human life that it will not impute negligence to an effort to preserve it, if the effort'is made with a reasonable regal’d for the rescuer's own safety. Eckert vs. Dong’ Island R. Co.. 3 Am. 721; Donahue vs. Wabash and St. L. Pac. R. Oí)., 53 Ann. 594; Beach on Contributory Nogligonce, p. 45, sec. 35; Thompson on Negligence, vol. 2, p. 1174, Sec. 21; Pierce on Railroads, p. 328 ; Rorer on Railroads, p. 3Ü29.
    2. Where negligence on the part of defendant is shown, the negligence of the person in danger cannot bo imputed to tlio rescuer. ¡See authorities above.
    3. when wilful negligence on the pari of defendant is established, the quostion of contributory negligence cannot arise?. Tlie defendant is liable absolutely. Rorer on Railroads, p. 872; 17 Am. 12; 13attisliill vs. Humphreys 38 N. W., 581-586; Barksdull vs. N. O. N. O. & O. Iiy. Co., 23 Ann. 180-382; Paren vs. Kellers & Oo.,v39 Ann. 3031.
    4. Where the verdict of the jury is not manifestly erroneous, it will not be disturbed. Iu the assessment of damages the parties are entitled to the judgment of the jury, and not of the court. Thompson on Negligence, Vol. 2. p. 12(56 : 37 Ann. 92, 94, 219, 226, 230 ; 37 Aim. 655.
    5. Courts will not sot aside verdict on the ground that damages are excessive or inadequate unless it is apparent that the jury acted under some bias, prejudice, or improper influence ; mere difference of judgment is not sufficient.
    (5. Where the verdict is expressly approved by the trial judge, it carries great weight an should not bo disturbed. 39 Ann. 929.
    
      Wise de-Hem don for Defendant and Appellant.
   The opinion of the court was delivered by

Poché, J.

Plaintiff claims damages in the sum of $40,000 for personal injuries inflicted on him by one of the defendant’s trains, through the alleged carelessness and fault of the railroad employes.

The defense is a general denial, coupled with the plea of contributory negligence.

Defendant appeals from a verdict and judgment- in the sum of $25,000.

The evidence is conflicting on all the pertinent and material facts involved in the controversy.

After a thorough study of the record we find, from the preponderance of the testimony, the following substantial facts as bearing- on the issues of negligence on the part of the company, and of contributory negligence on the part of plaintiff:

The accident occurred in November, 1888, at or near the Fair Grounds situated on the outskirts of the City of Shreveport, while a fair was being lield there. During the week of the fair, the company ran accommodation trains from its depot in. the city to tlie grounds and back on a schedule of fifteen minutes each way.

While plaintiff and a large number of other visitors at the fair were standing on a temporary platform erected near the grounds, awaiting an outgoing train on which they intended to return to the city, he noticed on the track, and in dangerous proximity to the approaching train, a. person, who was a friend of liis, and who was in an inebriate condition, standing with his back to the train, and apparently unconscious of threatened peril. He at once resolved to save his friend, and running to him he succeeded in pushing him off the track, but was himself struck by the pilot beam of the locomotive to which the train was attached; and received injuries from which he suffered great pains, was disabled for several months, and from which ho was not yet relieved at tlie time the case was tried below, at the end of the past month.

We are satisfied from the preponderance of the testimony, which is very conflicting on this point, that in approaching that platform, full of people of all ages, which was the regular fair grounds station for the defendant’s accommodation trains, situated at the intersection of a public thoroughfare, the train was driven with unusual speed and at a dangerous, rate, without which the accident would not have occurred. It is also in proof that the locomotive used on the occasion was a switch engine, not such as should be used to carry great numbers of passengers, and that it was in the charge of a fireman, not a regular or competent engineer, who was at that moment performing tlie tlie functions of the regular engineer, the latter having absented himself in order to go to his evening' meal.

All these circumstances combine together to make a clear case of negligence against the company.

Tlie question of contributory negligence must now be met.

The argument on that point is that plaintiff brought on the accident himself by his reckless attempt to jump on a railroad track immediately in front of an approaching train, at a close and dangerous distance from it.

Plaintiff testifies, and lie is corroborated by several unimpeaclied eyewitness, that without his, or other prompt assistance, the intoxicated man on the track would have been run over and probably killed.

Plaintiff, who was a strong and vigorous man of more than ordinary strength, states that from tlie appearance of tilings, lie believed that lie could save the man and avoid injury liimself.

Similar positions and circumstances have several times been presented to judicial investigation, as involving tlie question of negligence, and have been variously construed. But the opinion which commends itself to our approbation, as resting on sound principles of humanity, is to the eifect that they do not constitute, contributory negligence on the part of the person who is injured in the attempt. Text writers on railroad law and kindred subjects have formulated the rule thus :

“When one risks his life or places himself in a position of great-danger, in an effort to save the life of another, or to protect another who is exposed to a sudden peril, or in danger of great bodily harm, it is held that such exposure and risk for such a purpose is not negligent. 'Phe law lias so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons.”

The principle was culled from a well considered opinion of the Court of Appeals of New York in the ease of Eckert vs. Long Island R. R. Co., reported in 43 N. Y. 503; Beach on Contributory Negligence, p. 45; Thompson on Negligence, vol. 2, p. 1174; Pierce on Railroads, p. 328; Rorer on Railroads, p. 1209.

The ruling has received subsequent judicial sanction, and appreciating it as rational and as tending to foster a proper spirit of generous impulses towards persons who are in danger, we add our indorsement to that of other courts of last resort in other States of the American Union.

The evidence is satisfactory on the point that the attempt of plaintiff to save the life of a human being, or at least to rescue him from imminent peril, can not he characterized as rash or reckless in the judgment of prudent men, and that his venture would have been successful and harmless if the train had not approached the station with reprehensible speed.

We now approach tlie question of the quantum of damages which plaintiff should recover in the ease. In view of the finding of the jury, which met with the approval of the district judge in his refusal of a new trial, the solution of that question, to our satisfaction, under our desire and our duty to do even-handed justice to both litigants, has not been free of difficulty, and lienee it has cost us much thought and study.

As we have had occasion to say in several cases: “ While we do not pretend to lay down any exact arithmetical rule of proportion in the estimate of damages, yet they must hear some kind of reasonable relation to each other in different cases — with the reserve, however, that damages should always he substantial!” Towns vs. R. R., 37 Ann. 636.

A review of our reports in similar eases points to only two occasions on which this court has allowed damages in excess of $10,0(10 for personal injuries, and these were for very grievous a'nd permanent results: Barksdale’s case, 23 Ann. 180; Chapin’s case, 17 Ann. 19.

Among other cases we find an allowance of $7000 for an accident resulting in the death of the head of a large family, to whom he was the only support; another allowance of $5000 for the death of a man similarly situated, and, in another case, a judgment of $3000 for a like result. Curley’s case, 40 Ann. 810; Feran vs. Sellers, 39 Ann. 1011; Clairain vs. Telegraph Co., 40 Ann. 178.

And in as far as our observation lias gone, we find that tlie courts of other States of the Union have not reached as high figures as this court lias allowed.

Substantial damages must be awarded in proper cases, but by all means speculative litigation must be discouraged and possibly checked.

Now, in tlie present case, we have no hesitation in saying that tho verdict is largely excessive, and beyond,all measure and all precedents.

That tho plaintiff was seriously injured, that he suffered great pain; was exposed to loss of time, loss of business and to large expenses for medical assistance caimot be denied, and evidence to that effect is uncontradicted; but it is equally true that lie lias rapidly improved under medical treatment; that for months he has-been able to walk, go about and attend to business, without the use of crutches, and without the need of assistance; and above all that he is yet alive, fully able to earn bis livelihood and well disposed to enjoy life.

His most serious injury, and tlie most irritating cause of liis sufferings is the inflammation in bis hip-joint. But competent physicians, some of whom have rendered him professional services, and others, who have critically examined him, all testify that with proper treatment, prudent care and attention he can be radically cured.

Great reliance is placed by bis counsel, as a fruitful source of damages, on the fact that he is how afflicted with Hernia, characterized by symptoms of threatening strangulation, which they confidently attribute to the railroad accident. Plaintiff himself testifies that it is a result of the blow which he then and there received. But of course his testimony is not that of an expert, and none of tlie physicians who were examined testify directly in the same sense. One of them says: It (Hernia) is frequently the result of direct violence, but I can’t say as to this.” True plaintiff says that one of the physicians who attended to him at his home for several days saw Ills hernia and pronounced it very serious mid perhaps dangerous. But this is merely hearsay, and a strange co-incidence must be noted in this connection: the failure of plaintiff to take the testimony of' that physician and of another physician of his neighborhood, who rendered the first medical aid which he received after the accident.

Nothing in the nature of this case or in the surrounding circumstances can legally screen this party from the effect of the rule which jurisprudence applies to litigants who fail to produce important testimony easily within their reach, and presumably under their control. Ketchum vs. R. R., 38 Ann. 779; Day vs. R. R., 35 Ann. 694.

We arc constrained to notice another circumstance which goes a great way to negative the assertion that hernia was one of the results of the accident. Nearly three weeks after he had been injured, plaintiff was placed, on the recommendation of bis home physicians, under the treatment of Dr. M. M. Bannerman, of Grand Cane, La., as a surgeon of superior ability, who then took him and had him under his charge for more than a month, including three weeks during which he was under the doctor’s own roof, receiving his daily and almost constant attentions of the most intimate character. And yet in his testimony Dr. Banner-man does not make a single reference to hernia in connection with his patient. Par from it, his testimony contains the following very significant statement: “ Plaintiff, during my treatment, complained of no other injury resulting from the railroad accident, except that in his hip-joint.”

It is in proof, and plaintiff himself testifies that many years ago he was ruptured on the right side, and it is shown that he is now ruptured on both sides, but tbe evidence entirely fails to trace tlie second rupture to the railroad accident.

That element of damages must therefore be eliminated from the case.

And we therefore conclude that an allowance of $5000 is amply sufficient to compensate plaintiff for all the pains that he has suffered, the loss of business and of time that he has incurred, to meet the expenses of past medical attendance, and to secure the future treatment and attention needed to fully restore him from the effects of the injuries which, he received. To allow more, would be enriching one litigant at the expense of the other.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended bj reducing tlie amount of damages to be recovered by plaintiff from twenty-five to five thousand dollars, and that, as thus amended, said judgment he affirmed, and that costs of appeal be taxed to plaintiff.  