i. This was an action for personal injury received in getting off a moving train, where the evidence tended to show that the passenger got off under the directions of the train porter, and in reliance on his superior knowledge of the safety of the act. The question of negligence and contributory negligence was properly submitted to the jury. It has frequently been held by this court that in cases like this the question is one to be determined by the jury under proper instructions. St. Louis, I. M. & S. Ry. v. Cantrell, 37 Ark. 519; Little Rock & Ft. Smith Ry. Co. v. Atkins, 46 Ark. 423; St. Louis, I. M. & S. Ry Co. v. Baker, 67 Ark. 531. There were special findings of the jury which settled the question of negligence and contributory negligence, and there was evidence sustaining those findings.
2. The second instruction, which is a general statement that “carriers of passengers by steam are held to the highest degree of care, and are responsible for the1 smallest negligence to such passengers,” is criticised as being inapplicable to the facts. The court -is unable to see where a general statement of this kind could be misleading to a jury, and it is not thought that under the instructions as a whole the jury could have taken this one as referring to the conduct of the porter of the train, and that he was held to the highest degree of care in advising appellant to jump, and that any slight negligence on his part would be sufficient upon which to base .a cause of action, as the court in other instructions made clear the predicate for the cause of action.
3. Other criticisms of the instructions have been considered ; but the instructions as a whole fairly present the law. Among the elements of recovery the jury are told that they might consider “any debts he may have incurred or paid out by attempting a cure, as well as any losses he may have sustained by reason of a loss of his earning capacity on account of said wound.” The evidence showed that appellee was under the care of a doctor- at Gurdon who dressed his face and sewed it up, and after he got home he was at some expense there; but the amount of his expenses at either place is not shown. A verdict was rendered in favor of plaintiff for $2,500 as damages. After the verdict, appellee remitted $100 on, account of the failure of the proof to show the amount'of these items. It was error to enumerate the items of expense as something recoverable unless there was evidence thereof. But the evidence here shows that there was necessarily, some expense 'incurred in dressing appellee’s face and sewing it up .at Gurdón, and some expense at home. It seems reasonable that $100 should have covered such items. At least, the court can no.t say that the circuit court erred in allowing the judgment to. stand after the .$100 was deducted therefrom on .the theory that it would correct the error in allowing the question to go to the jury without the. evidence being.explicit as to the amount of. such expenses. ‘ ' '1
As to 'the last element, of loss' sustained by reason of decrease in earning' capacity on account of the wound, the' evidence is meagre, yet it is sufficient for this element to be enumerated m the charge. The eyid'ence shows' a serious injury to- appellee’s face, that'the bone was driven in against the ear, which caused partial deafness. He was asked, “What effect, if any, has that had upon your • capacity to labor and perform your ordinary Vocation?” He .answered, “I suppose, a right smart; I have not been able to do work since like I did before.” There is nothing to show what he' did before nor his earnings, but, taking the evidence as a whole and his physical condition, there was enough for the‘jury to'consider a decrease in his earning capacity from the time of the' accident to the time of the verdict. The verdict is moderate in view of the seriousness of the injury and the great pain attending it for so long a period.
4. The instruction is also criticised as containing an element for mental pain and anguish. The evidence shows a very-serious injury, great pain, and for many days the fear of death was upon appellee by reason of his injuries; and he was still suffering pain some two years thereafter. It is not clear from the record whether he was permanently disfigured in his face. Certainly, he was disfigured for a time. There was no error in including the element of mental pain in the charge.
On-the whole cause, the court is unable to find any reversible error, and the cáse is affirmed.