(after stating the facts). 1. It is earnestly insisted by counsel for defendant that there is not sufficient evidence to support the verdict. The duty of the carrier to a drunk passenger and its liability for the neglect of it is stated by Mr. Hutchinson as follows:
“And this rule is true whether the attendant danger arises from the natural infirmity of the person or was self-imposed. Thus, if a person on a train is so intoxicated as to render him unconscious of danger and unable to appreciate his position, surroundings and perils and his duty to avoid them, or he does not possess the power of locomotion, and is put off the train by a conductor on account of his misconduct, and the place where he is put off and left is dangerous to one in his condition, and these facts are known to the conductor, he would be guilty of recklessness and wanton negligence, rendering the company in whose employment he is liable for damages resulting from his negligence, although the person ejected and injured might have been legally ejected in a proper manner and at a proper place.” 2 Hutch. Carr., § 1083, p. 1260.
“Upon like principles, the law would not justify a conductor in putting off a passenger at a time and place and under conditions and circumstances which would expose him unnecessarily to great peril of life or bodily harm, and, this, too, whether the danger arose from the natural infirmity of the person or was self-imposed. If the conductor did not know of the infirmity of the person and the peril attending the ejection, there would be no liability arising from the exercise of the right and performance of the duty. It is the fact of notice or knowledge of the danger on the part of the conductor under such .circumstances that constitutes the act culpable or wilful wrong. If the deceased was intoxicated to the degree that he was unconscious of danger, could not grasp his position and surroundings, "and his duty to avoid danger from passing trains, or did not possess the power of locomotion, and the place where he was put off and left was dangerous to one in his condition, and these facts were known to the conductor, the conductor would be guilty of such negligence as to render the defendant liable for damages resulting from such misconduct. * * * Mere intoxication, which did not take away consciousness and the power to consider and understand the danger to which he was exposed, nor deprive him of physical capacity to take care of himself and to avoid danger, would not relieve him from the responsibility of exercising due care, after he was put off the train; and, if he was killed in consequence of such neglect of duty on his part, the plaintiff cannot recover. The killing under these circumstances would be the result of his own negligence, which proximately contributed to it.” Johnson v. Louisville, etc., Rd. Co. (Ala.), 53 Am. St. Rep. 39.
In the case of Black v. New York, New Haven & Hartford Railway Company, 193 Mass. 448, 9 Am. & Eng. Ann. Cas. 485, the court held:
“Where the plaintiff’s negligence or wrongdoing has placed his person or property in a dangerous situation, which is beyond his immediate control, and the defendant, having full knowledge of the dangerous situation and full opportunity, by the exercise of reasonable care, to ávoid any injury, nevertheless causes an injury, he is liable for the injury, as the plaintiff’s former negligence is only remotely connected with the accident, while the defendant’s conduct is the sole, direct and proximate cause of it.” The reason of the rule is that the law subordinates personal rights to the preservation of life. The rule is firmly established, but the application of it sometimes gives rise to difficult questions. In the case at bar the defendant’s theory of the case was that plaintiff was injured while trying to board its southbound tram when in motion; but the jury might have found that the plaintiff was shoved from one of the defendant’s passenger trains by its employees, and was left lying close to the trade -in an unconscious condition; that, with knowledge of his helpless condition and of the further fact that it was dark, and that there was no one there to render him assistance, they left him near the track exposed to the dangers of a train which would necessarily pass in a short time, and that, as a result thereof, the plaintiff was injured. Hence we conclude that there was sufficient evidence to support the verdict of the jury.
2. The claim agent of the defendant testified that on the 21st day of October, 1907, the, plaintiff gave a statement of the facts and circumstances of his injury. The said -statement was in writing and signed by the plaintiff. Plaintiff admitted his signature to the statement, but denied having said any of the matters contained in it. Defendant offered to introduce the statement in evidence, and assigns as error the action of the court in excluding it. The court should have admitted the statement in evidence. The rule in St. Louis, Iron Mountain & Southern Ry. Co. v. Faisst, 68 Ark. 592, invoked by counsel for plaintiff, is not applicable ; for plaintiff sustained two relations to this suit. He was both plaintiff and witness. As said in the case of Collins v. Mack, 31 Ark., at p. 694, “the acts and declarations of a party to a suit, when they afford any presumption against him, may be proved by the opposing party.” It is a well recognized rule of evidence that any statements which may have been made by a -party to a suit against his interest, touching material facts, are competent as original testimony. Black v. Epstein, 120 S. W. (Mo.) 755; Louisville & N. R. Co. v. Joshlin, 110 S. W. (Ky.) 382.
3. Counsel for defendant also insist that the court erred in giving instruction No. 7 at the instance of the plaintiff. The instruction is to some extent ambiguous and misleading in this that it might be inferred from it that the jury should render a verdict for any amount they deemed right for the pain and suffering, regardless of the evidence. But the defect could have been cured by a specific objection. For that reason we would not reverse the case for this alleged error; but, inasmuch as the case must be reversed for the error already indicated, we deem it proper to caution the court in regard to the form of the instruction.
While, as we have said, it is difficult to fix a measure of damages for pain and suffering, for the reason that none would be an acceptable inducement to suffer it, yet, in determining the amount of compensation for it, the jury must be governed by the evidence in the case. See Aluminum Company of North America v. Ramsey, 89 Ark. 522; Ward v. Blackwood, 48 Ark. 396; Railway Company v. Dobbins, 60 Ark. 485; St. Louis, I. M. & So. Ry. Co. v. Cantrell, 37 Ark. 522; Barlow v. Lowder, 35 Ark. 496.
For the error in excluding the written statement of plaintiff from the jury the judgment will be reversed, and the cause remanded for a new trial.