LOUISVILLE & N. R. Co. v. COLLINSWORTH. (Supreme Court of Florida, Division A., Jan. 20, 1903.) Appeal-Review. [33 So. Rep. 513.] The refusal of the trial court to instruct the jury to find a verdict for the defendant cannot be considered by this court in the absence of a full and complete statement of all the evidence in the bill of exceptions. Injury to Employee-Damages-Size of Plaintiff's Family.* In an action by an employee to recover damages for personal injuries, it is not competent for him to testify what family he has, since the damages allowed are for the injuries inflicted upon him, and not upon his family. Same-Same-Same-Admissibility in Evidence. In such an action, evidence of the size of the family of an employee, and its dependent condition, is calculated to unduly enhance the damages, and to influence the jury to give damages beyond what is a compensation for the injury received. Evidence-Exclusion. Where improper evidence has been admitted, the court should exclude it in express terms, and it is not enough to do so by implication. (Syllabus by the Court.) Error to circuit court, Jackson county; Evelyn C. Maxwell, Judge. Action by Eli Collinsworth against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed. W. A. Blount and Daniel Campbell, for plaintiff in error. D. L. McKinnon & Son, for defendant in error. SHACKLEFORD, J. An action was instituted by defendant in error in the circuit court against plaintiff in error, a railroad company, to recover damages for injuries received by defendant in error on account of the alleged negligence of an employee of the company. The declaration, as amended, alleges that on or about the 27th day of June, 1896, plaintiff was engaged in loading one of the cars of said company, which had been placed upon a side track at Westville for the purpose of being loaded with lumber for shipment, and that while plaintiff was in said car, so engaged in loading, the defendant carelessly and negligently ran its train, made up with an engine and cars, with great force, in, upon, and against said car in which plaintiff was at the time, and struck said car with such great force and violence as to cause the *See foot-note appended to Louisville & N. R. Co. v. Banks (Ala.), 2 R. R. R. 359, 25 Am. & Eng. R. Cas., N. S., 359; Youngblood v. South Carolina & G. R. Co. (S. Car.). 20 Am. & Eng. R. Cas., N. S., 622; Alabama Mineral R. Co. v. Jones (Ala.), 8 Am. & Eng. R. Cas., N. S., 383; Illinois C. R. Co. v. Davis (Tenn.), 18 Am. & Eng. R. Cas., N. S., 708; English v. Southern Pac. Co. (Utah), 4 Am. & Eng. R. Cas., N. S., 63; Louisville & N. R. Co. v. Taafe (Ky.), 15 Am. & Eng. R. Cas.. N. S., 693; Felton v. Spiro (C. C. A.), 10 Am. & Eng. R. Cas., N. S., 865. Louisville & N. R. Co. v. Collinsworth staves with which plaintiff was engaged in loading said car to be moved from their place and to strike plaintiff, and to throw or knock him to a great distance and to the other end of said car, by and from which plaintiff sustained great injuries, which are of a lasting and permanent nature; the damages being laid at $10,000. The pleas were, "Not guilty." and that the negligence of the plaintiff contributed to the injury complained of, by remaining in the car in which the staves were being loaded after being warned that a switch was to be made, and that he had better get out of the car. Trial was had, which resulted in plaintiff recovering judgment for $2,500, from which the company sued out a writ of error. There is no evidentiary bill of exceptions in the transcript, and counsel for plaintiff in error have expressly abandoned all of the errors except two. The first error assigned, which is argued, is as to the refusal of the trial court to instruct the jury to find a verdict for the defendant. In disposing of this, it is sufficient to say that this assignment cannot be considered in the absence of an evidentiary bill of exceptions, giving the entire testimony in the case. The second and only other error assigned which is argued is that the court erred in permitting the plaintiff to be asked, over the objection of defendant company, the following question: "What size family have you?" The answer of witness to this question was: "I have two grown daughters, married and off from home, and seven children at home now. I provide for them myself. These seven are under thirteen years of age, the youngest being one and a half years, and there is a difference of about a year and a half between each of them. In admitting this testimony the trial judge stated, in the presence of the jury, that it was admitted only for the purpose of supporting plaintiff's testimony as to the amount of farm products raised by him, as tending to show the value of his services; the plaintiff's testimony being that, as a result of his injuries, he was almost incapacitated for work. In passing upon this point, we may remark that the plaintiff was suing for injuries to himself, and that the damage to himself was the same, whether he had no family or a large family. The effect upon his power to labor and produce was in question, and not the application of the results of his labor. We are of the opinion that, in an action by an employee to recover damages for personal injuries, it is not competent for him to testify what family he has, since the damages allowed are for the injuries inflicted upon him, and not on his family, and that in allowing this question and answer the court erred. Louisville & Nashville R. R. Co. v. Binion, 107 Ala. 645, 18 South. 75; Louisville & Nashville R. R. Co. v. Gower, 85 Tenn. 465, 3 S. W. 824, 31 Am. & Eng. R. Cas. 168; Driess v. Friedrich, 57 Tex. 70; Texas Mex. Ry. Co. v. Douglass, 69 Tex. 694, 7 S. W. 77; Dayharsh v. Hannibal & St. J. R. Co., 103 Mo. 570, 15 S. W. 554, 23 Am. St. Rep. 900; Penn 8 RRR-2 Seaboard Air Line Ry. v. Walthour sylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; Pittsburg, Ft. Wayne & Chicago Ry. Co. v. Powers, 74 Ill. 341. As was aptly said in the case last cited: "Such evidence is well calculated to unduly enhance the damages, and to influence the jury to give damages beyond what is a compensation for the injury received. Appellants can in no case be required to support the family of one of their employees who may be injured even by the negligence of the servants of the company. Such a rule would be carrying the liability of such bodies beyond the liability of other persons, and would not accord with the analogies or principles of the law. And to permit such evidence would be virtually to impose that duty. upon the defendant. It is impossible for us to know what portion of the verdict in this case was allowed because appellee had a family." And as said in Texas Mex. Ry. Co. v. Douglass, supra, "Nothing is better calculated to excite the sympathy of a jury than the idea of a poor and dependent family, caused by the wrongful act or omission of another." It is contended, however, by counsel for defendant in error, that there was no error in admitting this testimony, for the reason that the court stated in the presence of the jury that it was admitted for a limited and specified purpose. We cannot assent to this. In our opinion, it was not the proper manner in which to prove the value of plaintiff's services. Where improper evidence has been admitted, the court should exclude it in express terms, and it is not enough to do so by implication. Pavey v. Burch, 3 Mo. 447, 26 Am. Dec. 682; Arthur v. Griswold, Executrix, 55 N. Y. 400; Scripps v. Reilly, 35 Mich. 371, 24 Am. Rep. 575; Remington v. Bailey, 13 Wis. 332; Henkle v. McClure, 32 Ohio St. 202; 3 Jones on Evidence, section 898. The judgment is reversed, and a new trial awarded, and it is so ordered, at the cost of the defendant in error. SEABOARD AIR LINE RY. v. WALTHOUR. (Supreme Court of Georgia, March 17, 1903.) Railroads Killing Stock-Evidence-Weight and Sufficiency.* *As to the credibility of railroad employees as witnesses, see Brunswick & W. R. Co. v. Wiggins (Ga.), 22 Am. & Eng. R. Cas., N. S., 588. Anderson v. Erie R. Co Thompson, 36 S. E. 945, 111 Ga. 731; Georgia & Alabama Ry. Co. v. Cook, 40 S. E. 718, 114 Ga. 760, 762. So it necessarily follows that where, as in the present case, a plaintiff relies for a recovery wholly upon the presumption of law arising in such cases, and this presumption is rebutted by uncontradicted evidence introduced by the defendant company, to the effect that its servants were without fault, a verdict in favor of the plaintiff cannot properly be allowed to stand. Central of Georgia Ry. Co. v. Wood, 30 S E. 933, 105 Ga. 499. Candler, J., dissenting. (Syllabus by the Court.) Error from Superior Court, Liberty County; P. E. Seabrook, Judge. Action by George Walthour against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant brings error. Reversed. Walter T. Johnson and Mackall & Anderson, for plaintiff in error. A. S. Way, for defendant in error. SIMMONS, C. J. Judgment reversed. CANDLER, J. (dissenting). In an action for damages against a railroad company for the killing of live stock, a presumption of negligence arises against the defendant upon proof that the stock was killed by the running of its "locomotives, or cars, or other machinery." Civ. Code 1895, 8 2321. The killing may be established by circumstantial evidence, the weight of such evidence being exclusively for the jury. Evidence offered in behalf of the railroad company that one of its trains ran over the plaintiff's horse after it had been killed does not prove that the horse was not killed by some one of its trains; nor does it rebut the presumption of negligence arising from the introduction of evidence, satisfactory to the jury, that the horse was so killed. LUMPKIN, P. J., absent on account of sickness. ANDERSON V. ERIE R Co. (Court of Errors and Appeals of New Jersey, March 2, 1903.) [54 Atl. Rep. 830.] Railroads Injury to Brakeman Negligence.* The plaintiff, while acting as a brakeman in the employment of the defendant, fell from the roof of a freight car, and was injured. The cause of his fall was that the grab iron on the roof pulled out the screw which held it, as he threw his weight upon it in descending, the defects being the insufficiency of the screw and the deterioration of the wood. The car belonged to the Chicago & Erie Railroad Company, and first appears in the evidence as arriving loaded at Point Jervis in a freight train which came from the west over the Delaware Division of As to the duty of railroad companies, as employers, to furnish safe foreign cars, see monograph appended to Douglass v. Ohio River R. Co. (W. Va.), 4 R. R. R. 430, 27 Am. & Eng. R. Cas., N. S., 430. Anderson v. Erie R. Co the defendant's railroad. Afterwards it was hauled by the defendant to Weehawken, where the accident happened: held: (1) It must be inferred against the plaintiff that the car was received by the defendant loaded for transportation by it as a common carrier. (2) The defects complained of were not such as, under the circumstances, the defendant was bound to guard against. (Syllabus by the Court.) Error to Supreme Court. Action by Milton Anderson against the Erie Railroad Company. Judgment for plaintiff. Defendant brings error. versed. Warren Dixon, for plaintiff in error. Corbin & Corbin, for defendant in error. Re DIXON, J. The plaintiff, a brakeman in the employ of the defendant, fell, and was injured while descending from a box car in the defendant's yard at Weehawken. The cause of his fall was that the fastening of the grab iron on top of the car gave way as he threw his weight upon it. The evidence tended to show two defects in the fastening-one, the use of a screw running less than an inch into the wooden roof, instead of a larger screw, or a bolt running entirely through the roof, and held by a nut underneath; the other, deterioration of the wood through which the screw ran, indicated by the fibers adhering to the thread of the screw after it was renched away. It was proved that the car did not belong to the defendant, but was the property of the Chicago & Erie Railway Company, an Indiana corporation owning and operating a railroad from Hammond, Ind., to Marion, Ohio; that at 12:10 a. m. on June 2, 1901, the car arrived loaded at Port Jervis, coming in a train of 60 freight cars from the west. over the Delaware Division on the defendant's road; that it was there inspected by the defendant's inspectors, found satisfactory, and made up by the defendant in another train, which left Port Jervis at 9:30 that evening, and reached the Weehawken yard at 10:55 the next morning. The accident happened about noon the same day. There is no direct testimony in the case as to where, or by whom, the car was loaded, but we think the only legitimate inference is that it came loaded into the possession of the defendant for transportation by it as a common carrier. The fact that it was the property of another owner rebuts any presumption which might arise from possession that it was used by the defendant in its own business, and this rebuttal is strengthened by the further fact that when it first appears in the defendant's possession it was fully loaded, and was afterwards handled by the defendant merely for transportation. The general principles of the law cast upon the plaintiff the burden of proving the duty of the defendant, and we think he sustained this burden only to the extent of such duty as rests upon a railroad company which receives a loaded car of another owner, to be |