NEW ORLEANS & C. R. CO. v. SCHNEIDER, 60 F. 210

McCORMICK, Circuit Judge. The defendant in error was a passenger on one of the cars of plaintiff in error, and her arm was broken by coming in coni act with an iron post planted near tin; track. She sued the company, claiming damages tor this injury.

She alleged that she was seated by a window that was open when she entered, and took her seat in the car, and that afterwards she rested her arm upon the window sill; that the car turned, and (while running on a switch recently constructed for temporary use by the plaintiff in error) suddenly passed so close to an iron post standing near the track that the post violently struck her arm, and broke it between the elbow and the shoulder. The plaintiff in error excepted to the petition, in that it showed no cause of action. Tin; overruling of this exception is the first of the assigned errors.

The plaintiff in error, after the proof was closed, requested the trial judge to direct a verdict, for the company, and assigns as error his refusal to withdraw the case from the jury. To support this assignment all the evidence is brought up.

The party injured testifies that she did not have her arm out of the window before the accident, but had it resting on the sill of the windows The; surgeon who attended her testified “that, the arm showed no bruise at any other point than at the seat of the fracture, which was just halfway between the elbow7 and the shoulder; the fracture was a simple fracture, evidently from a direct blow just over the seat of the fracture.

Had the arm been projecting out of the window, and the post struck it, the injury would have been below the elbow, —would have been below7 where it was in this case, — and my impression, therefore, is that the arm was broken by a blow received just over the seat of the fracture, because there was no perceptible injury at any oilier place, and a very slight mark of injury over that.” One witness, who was in the car when the accident occurred, and seated on the other side of the car, just opposite to and facing the lady who was hurt, testifies that “her elbow wras resting on the sill of the oar window, and, as the car went on this temporary switch, ⅜ * the car jolted very much, ⅞ * * that caused the arm to he ibrown out of the car, and come in contact with the post.” One witness, in the car at the time, sitting on the same side with the parly injured, and next to her, sjbout one foot away, testifies that she put her elbow out of tbe window. “I saw by her position; I remember that hv her position her arm was out of the car, because I looked that way just about that time.” Being asked, “When you came onto that switch, did you notice where her arm was?” answered: “No, sir; never noticed it; only, after the accident, she pulled it in, and 1 remarked then I saw her elbow out of the window.” “Before the accident?” “Yes, sir.” “Now, do you remember whether at the time of the accident she was resting her elbow on the window sill or not, — could you say?” “I could not see then, because I was looking across the car.” In our view, the trial judge did not err in overruling the general exception to the petition, and in refusing to direct a verdict for the company.

The plaintiff in error requested the trial judge to charge the jury that “the defendant [below] was not required io barricade the windows of its cars, or to so construct them as to [prevent its passengers from putting their heads or arms out of the windows.” This charge as requested is not applicable to the whole proof in the case.

It should not have been given, but, attention having been, called by it to that feature of the case, the judge not improperly instructed the jury “that the defendant, in order to prevent its passengers from being injured, was bound to take those precautions, ,and those alone, .which reasonable diligence required. It is for the jury to say whether reasonable diligence required that barricades or guards should have been used by the defendant to prevent its passengers from putting their hands and arms out of the windows.” We do noi feel called on to approve or question the doctrine of the case of Summers v.

Railroad Co., 34 La. Ann. 189. On the authorities most favorable to the plaintiff in error, it was not error in this case to submit the question of negligence to the jury in the manner it was done by this charge. The other request refused assumed that the defendant had exposed her arm outside of the window, and was properly refused because that fact was not admitted or clearly established by the proof. On the contrary, there was a substantial conflict of testimony on that point.

If there was error in the charge given in place of that request refused, it was an error of which the plaintiff in error could not complain. That part of the general charge complained of presents no error for which the judgment should be reversed. In our opinion, the amount of the verdict is not such as to show that the jury were influenced by prejudice against the defendant. Within the limit just indicated, it was the province of the jury to assess the damages. The form of the verdict is not material.

The amount, found by them is hot uncertain, because they chose to put their verdict in a form that required a mathematical calculation to get the sum of their finding. The trial judge could have required them to make the calculation, but it was not necessary that he ’ should. When all the elements of a calculation so simple as the. one involved in this verdict are given, no uncertainty can lurk there. The judgment is not-for a greater amount than the jury found. If it is for^ slightly less, the plaintiff in error cannot be heard to complain. 'The judgment of the lower court is affirmed.