(after stating the facts). (1) It is strongly insisted by counsel for the defendant company that the evidence was not sufficient to warrant the verdict. The law applicable to oases of this kind is clearly stated in the Am. & Eng. Ene. of Law (2 ed.), volume 8, p. 363, as follows: “It is the duty of every railroad company •properly to construct and maintain crossings over all public highways on the line of its road in such manner that' the same shall be safe and convenient to travelers, so far as it can do so without interfering with the safe operation of the road. ’ ’
On the same page the author states: “The duty of the railroad to construct and maintain crossings over public highways is a matter usually regulated by statutory enactment. And a failure to regard such statutory requirements will render the railroad company liable for •all injuries from such neglect of duty.” See, also, Acts of Arkansas, 1905, page 116.
On page 366 of the volume of the Encyclopedia of Law, above cited, the author said: “An embankment constructed as a necessary approach to a railroad track is in legal contemplation a part of the crossing, and should comply with the provisions regulating crossings in general. ’ ’
Again, at page 374, it is said: ‘ “ The duty of the railroad company to repair 'and restore a, highway is a continuing one, and commensurate with the increasing necessity of the public, and so, where the enlargement of a city or increased travel upon streets has rendered the crossing as originally restored inconvenient or dangerous, it is the duty of the 'company to adapt it to the public needs.”
To the same effect, see Whitby v. Baltimore, C. & A. Ry. Co. (Md.), 54 Atl. 674; Elliott on Railroads, volume 3, § § 1115, 1176.
Under the principles of law above announced, which are in accord with the decisions of the courts of last resort of most of the States, we think there was sufficient evidence to warrant the verdict. Of course, the testimony of the defendant tended to show that the crossing was properly constructed, and that it was not defective, but the testimony introduced by the plaintiff'was in direct conflict with the testimony of the defendant. According to the testimony of the plaintiff’s witnesses, the crossing was in a defective condition. They stated that there were no inside planks to the crossing, and that the ties were exposed to view by reason ¡of no dirt or stone Laving been placed there to bring the ¡crossing up to a proper level. They said that on the south ¡side of the crossing, the plank which had been put on the outside of the rail had come up to the top of the rail by reason of dirt having worked under it, and that one of the ends of this plank was not nailed down. They further said that a little beyond the plank, or about two feet from the rail, there was a sheer drop variously estimated by the witnesses from ten to fourteen inches. The plaintiff testified that he did not know ■of this defective ¡condition of the crossing, and that when his front wheels fell into the depression, he was thrown from the ¡spring seat in the wagon with great violence against the ¡dashboard, ¡and that when he raised himself, the rear wheels of the wagon fell into the depression, and he was thrown back on to the rooks with which his wagon was loaded.
(2) If the condition of the ¡crossing was as described by the plaintiff and his witnesses, the jury was warranted in finding that the defective condition ¡of the ¡crossing had existed for such a length ¡of time that the defendant was ¡aware of it. Besides, ¡one of the witnesses- for the plaintiff testified that he had been crossing there twice a week for several weeks about that time, and that the defective condition ¡of the crossing existed for some time prior to the •accident. Under these circumstances, the jury was warranted in finding that the defendant was guilty of negligence, ¡and that the plaintiff was free from ¡contributory negligence.
It is next insisted by counsel for the defendant that the ¡court erred in -giving instruction numbered 1, which is ¡as follows:
“If you find from the evidence that the plaintiff was injured while ¡attempting to pass with his wagon at a -public crossing placed by def endant over its railway, and that the crossing was in a defective ¡condition at the time by reason of the negligence of the ¡defendant, and that the injury to plaintiff, if any, was caused by ¡such defective crossing, ¡and that the plaintiff exercised ordinary ¡care and prudence in attempting to cross over the crossing, then you will find for the plaintiff. ’ ’
(3) No specific objection was made to this instruction. It was the duty of the railroad company to use ordinary care to keep the crossing in a reasonably safe condition for persons traveling over it, and it is the contention of counsel for the defendant that the instruction under consideration ignored this rule of law. The instruction is not aptly drawn, but we do not think it is open to the objection now made to it. When the court used the language “that the crossing was in a defective condition at the time by reason of the negligence of the defendant,” it evidently meant that the negligence of the defendant consisted in failing to use ordinary care to keep the crossing in a reasonably safe condition for travel. In instructions given at the request of the defendant, the court told the jury that the railroad company does not insure the safety of persons crossing over its tracks at a public 'Crossing, but the law only required it to use ordinary care to keep the crossing on the public highway over its tracks in a reasonably safe condition for travelers having occasion to use it.. If counsel for the defendant thought the instruction susceptible to the meaning now contended for, they should have made a specific objection to it, and, no doubt, the court would have changed the language used in it to meet the objections. Not having done so, they are not in an attitude to complain. The instructions given at the request of the defendant are not contradictory to the instruction complained of, but are explanatory of it. Therefore, we do not think the court erred in giving the instruction complained of.
It is also contended by counsel for the defendant that there is no testimony to warrant the finding of the jury that the plaintiff was permanently injured, and that on this account, 'the court erred in instructing the jury on permanent injuries. We do not agree with them in this •contention. The plaintiff was injured on the 9th day of April, 1914, and the trial of the case was had on the 13th day of October, 1914. At the time the plaintiff was injured he was fifty-five years old, and never had any serious sickness. He then weighed about 140 pounds, and his weight at the time of the trial was 122 pounds. He was ruptured 'and severely injured-in his back. Plaintiff stated that since the accident, any noise or excitement bothers him, and that he is not able to sleep well; that before the accident he was able to do a great deal of both mental and physical labor; that he had been foreman of a construction gang, and that since his injury, it is difficult for him to read or to make figures; that he seems to see two objects; that his back still hurts him; that he has frequent headaches; and that he has suffered continuously with his back since the injury occurred.
A physician who examined him testified that he had a double inguinal hernia, and that from the history of the case, he was of the opinion that it was caused by the injury; that the hernia is a permanent injury unless the plaintiff has an operation performed, some of which are successful, and some of which are not; that in the great majority of cases an operation is successful, and the patient is practically well of the rupture in six months if he takes care of himself and avoids any heavy lifting or strains, which would have a tendency to bring it back.
The physician also stated, with reference to his injury in the back, the following: “His back injury, based on the number of oases I have seen, treated and observed, and from what I have read on. the subject, it is my experience, if a man hurts his back badly once, he complains with it the rest of his life, when he does hard work, or there is a change in the weather. While he might get better under proper treatment, still he may suffer the rest of his life. As to the neurasthenic condition he has, the nervous trouble, I do not think any one ever dies from that. It is a functional trouble, and the majority of them get well under proper care and treatment. Sometimes a recovery takes place in six months. Some recover in a few months, some in six months and others it takes years. There i s no way of telling how long it would take in any individual ease. Each case is a case of itself. Some oases, if treated properly, will get well rapidly, while in some -oases the patient will linger for months, and -some never get well.”
The physician stated that the plaintiff was suffering from traumatic neurasthenia and nervous 'condition caused by the shock or fright.
(4) Evidence adduced by the -defendant tended to show that the injuries of the plaintiff were not permanent -but the jury were the judges of the weight of the -evidence and the -credibility to be given to the witnesses; and we think the testimony -adduced by the plaintiff was sufficient to warrant the court in giving the instruction -on permanent injuries. The physician -specifically stated that, in his opinion, the injury to his back was permanent and that his rupture w-as permanent unless he'was operated upon,, and that -an operation was not successful in -all -oases.
Finally it is insisted 'by -counsel for the defendant that the damages awarded by the jury were excessive. The jury returned a verdict for the plaintiff for $5,000. Under the facts and -circumstances adduced in evidence we -can not say that that amount was excessive. The physician who testified in favor of the plaintiff said that an operation for hernia would -cost from two hundred and fifty to five hundred dollars -and that -one -couldn’t do much work for six months thereafter; th-at, as to his neurasthenic -condition, he might get well in about six months, or it might take years, and that -some never get well; that the probable expense of treatment for his nervous trouble would be from $25 to $50 a week, depending upon the place he went to for treatment; that it was necessary for him to have complete rest to cure his trouble ; that the older a person is the worse the trouble is and the longer it will take for the patient to recover; that the plaintiff’s headache, backache and eye trouble are all symptoms of -his nervous troubles; that he should be taken to -a sanitarium and should stay there at least six months, and th-at it might require years to cure him.
The plaintiff testified that he has not been able to do any work sinoe the injury and that he was capable of earning, as foreman of a construction gang, an occupation which he was well qualified to fill, the sum of $100 per month; that he was a farmer and owned >& farm, and that his services as manager of the farm were worth $50 per month. Taking into consideration the time lost between the date of the injury and the time of the trial, and six months, the least possible time within which the physician gave him to recover, it would require at least $600 to compensate him for his services. The jury might have found that it would cost him $2,000 for a surgical operation and expenses at the sanitarium, even if he should be cured. This would leave him less than $2,500 for his pain and suffering which he 'had endured and was likely to endure in the future and for permanent injuries which the jury might have found under the testimony he had received. Under these circumstances it can not be said that the verdict was excessive.
We have carefully examined the record and find no prejudicial error in it. Therefore the judgment will he affirmed.