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Note: Groom's Name: W. D. Lemons Or Leamons Groom's Birth Date:
Groom's Birthplace:
Groom's Age:
Bride's Name: Mattie Morgan Or Moorhead
Bride's Birth Date:
Bride's Birthplace:
Bride's Age:
Marriage Date: 03 Jan 1904
Marriage Place: Palestine, Anderson, Texas
Groom's Father's Name:
Groom's Mother's Name:
Bride's Father's Name:
Bride's Mother's Name:
Groom's Race:
Groom's Marital Status:
Groom's Previous Wife's Name:
Bride's Race:
Bride's Marital Status: Single
Bride's Previous Husband's Name:
Indexing Project (Batch) Number: M86999-5
System Origin: Texas-VR
Source Film Number: 0987146
Reference Number: 2:40CWK7C
Collection: Texas Marriages, 1837-19731900; Census Place: Van Buren, Union, Arkansas; Roll: T623 78; Page: 1B; Enumeration District: 131.
June 2, 1900.
Lemons WD Head WM Feb 1870 30 marr 3yrs Ark Unk Ala Farmer Can rd and wrt.
Martha E Wife WF Dec 1882 18 marr 3yrs Tx La Ala Can rd and wrt.
Walter Wallace Son WM Aug 1899 9/12 Ark Ark Tx Year: 1910; Census Place: Justice Precinct 7, Cass, Texas; Roll: T624_1537; Page: 12B; Enumeration District: 37; Image: 1170.
April 25, 1910.
Lemons William D Head MW 40 marr2 6yrs Ark US US Farmer Can rd and wrt.
Mattie A Wife FW 22 marr1 6yrs Ark US US Can rd and wrt. Wallace W Son MW 11 sing Ark Ark Ark Att sch Can rd and wrt. Willie M Dau FW 5 sing Tx Ark Ark John L Dau FW 3 sing Tx Ark Ark JD Son MW 2 sing Tx Ark Ark AC Son MW 6/12 Tx Ark Ark 1915 Kansas State Census. Microfilm reels K-1 – K-271. Kansas State Historical Society. Union Center, Elk County, WD, Mattie and all children, including Walter Wallace, in Kansas State census of 1915
1920;Census Place: Salmon, Anderson, Texas; Roll: T625_1772; Page: 3A; Enumeration District: 14; Image: 343.
Jan 26, 1920.
Leamons William D Head MW 50 marr Can read and write. Ark Iowa Ala Farmer
Mattie E Wife FW 52 marr Can read and write. Ark Miss Miss Wallace Son MW 20 sing Can read and write. Ark Ark Ark Hm frm
Johnnie L Dau FW 14 sing Can read and write. Ark Ark Ark Hm frm Att sch.
JD Son MW 12 sing Can read and write. Tex Ark Ark Hm frm Att sch.
Asa Son MW 10 sing Can read and write. Tex Ark Ark Att sch.
E.T. Son MW 9 sing Tex Ark Ark Att sch.
Gertrude Dau FW 5 sing Tex Ark Ark William H Son MW 4 sing Tex Ark Ark
Silvia Dau FW 2 sing Tex Ark Ark
A Morehead (Mattie's maiden name) family follows this one.
1930; Census Place: Precinct 5, Houston, Texas; Roll: 2358; Page: 5B; Enumeration District: 19; Image: 1104.0.
April 10, 1930.
Leamons William D Head Owns MW 60 mar at 27 Can rd and wrt. Ark Okla Ala Frmer
Mattie Wife FW 42 mar at 16 Can rd and wrt. Ark Miss Miss ET Son MW 18 sing Can rd and wrt. Ark Ark Ark Frm lbr
Gertrude Dau FW 16 sing A. sch. Can rd and wrt. Tx Ark Ark Howard Son MW 14 sing A. sch. Can rd and wrt. Ks Ark Ark Frm lbr
Sylvia Dau FW 12 sing A. sch. Can rd and wrt. Tx Ark Ark Audrey Dau FW 5 sing Tx Ark Ark
St. Louis, I. M. & S. Ry. Co. v. Leamons, 102 S.W. 363 (Ark., 1907)
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102 S.W. 363
ST. LOUIS, I. M. & S. RY. CO.
v.
LEAMONS.
Supreme Court of Arkansas. April 29, 1907.
Appeal from Circuit Court, Union County; Chas. W. Smith, Judge.
Action by W. D. Leamons against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
According to plaintiff's testimony, he bought a ticket from Palestine, Tex., to El Dorado, Ark., by the way of Gurdon, a junction, got to Gurdon early in the morning, and had to change cars there and wait until the train came from the north. The trains going to Texarkana and El Dorado head the same way at the depot for about half a mile. When a train came in from the north, he walked up to it, and was asked by a negro, who was assisting people on the train, as to his destination. After being told that it was El Dorado, he took plaintiff by the arm and assisted him on the train. Plaintiff took a seat, and, as the train was moving on, the man came in and asked if plaintiff was the gentleman he had told this was the El Dorado train. On being answered in the affirmative, he said that he had made a mistake; that the train went to Texarkana. Plaintiff then got up and walked to the steps of the vestibule, but found it closed, and turned to go back, when he met the negro coming in a trot, who came and opened the door and told him to make haste and get off. As he got off, he fell on some coal and cut his face, breaking his cheek bone, skinning and cutting his nose and bruising his shoulder. He was thrown by the motion of the cars, and the injury was caused by his falling on the coal.
On cross-examination the plaintiff testified that he knew the train was moving when he jumped and fell; that he saw the conductor, but did not speak to him nor ask him to stop the train; that he spoke to no one except the porter and requested no one to have the train stopped; that he did not know how far he had gone down the road when he jumped off; that he did not know that the porter gave the signal for the train to stop before he jumped; that he supposed the signal was given after he jumped; that there had been none given before he jumped off; that he could have heard it, if it had been given; that the train stopped immediately after he jumped and within 200 or 300 yards after the coach passed him. The testimony of several witnesses for the defendant indicated that the signal to stop had been given before the plaintiff jumped, and the engineer testified that, after applying the brakes, he looked out of the windows and saw the plaintiff jump; that the train was already slowing up and coming to a stop when he jumped. The jury by special verdict found that the defendant was negligent in urging plaintiff to take the leap and that it was the cause of plaintiff's taking the jump, and that plaintiff was not guilty of contributory negligence in jumping. There was a verdict for $2,500, from which plaintiff remitted $100. Other facts are shown in the opinion. Tom M. Mehaffy, for appellant. R. G. Harper and Thornton & Thornton, for appellee. HILL, C. J.
The reporter will state the facts of the case.
1. Suffice it to say that this was an action for personal injury received in getting off a moving train, where it is claimed that the passenger got off under the directions of the train porter, and in reliance of 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 St. Louis, I. M. & S. Ry. Co. v. Leamons, 102 S.W. 363 (Ark., 1907) under proper instructions. Railway v. Cantrell, 37 Ark. 519, 40 Am. Rep. 105; Railway v. Atkins, 46 Ark. 423; Railway v. Baker, 67 Ark. 531, 55 S. W. 941. 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 the 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. 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 Gurdon, and some expense at home. It seems reasonable that $100 should have covered such items. At least, the court cannot 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. As to the last element, of loss sustained by reason of decrease in earning capacity on account of the wound, the evidence is meager, yet it is sufficient for this element to be enumerated in the charge. The evidence 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 avocation?" 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 this 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 case is affirmed.
BATTLE and WOOD, JJ., dissent.
BATTLE, J. (dissenting).
The court instructed the jury in this case that, if they found for the plaintiff, they should assess his damages "at a sum that will in `their' St. Louis, I. M. & S. Ry. Co. v. Leamons, 102 S.W. 363 (Ark., 1907) judgment be a just and fair compensation for the mental and physical pain and suffering at the time of the injury and afterwards, including any mental anguish and mortification or any physical inconvenience he may suffer in the future by reason of the wounds received, as well as 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." So much of the instruction as is in these words, "as well as 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," should not have been given. There was no evidence upon which to base it. The only testimony on this point was that of the plaintiff. He testified that he was "examined by a physician and had been to some expense, but does not know how much he expended while under the care of a doctor; that he was under the care of a doctor at Gurdon, who dressed and sewed up his face, and that after he got to El Dorado he was at some expense there"; that his injury "affected his capacity to labor and perform his ordinary avocation a right smart; that he had not been able to work much since he was injured, not like he did before." There was no evidence of the amount of expenses he incurred on account of his injury, or of what he was able to earn before and since — of the extent it affected his earning capacity. Of a similar instruction this court said in Railroad Co. v. Barry, 58 Ark. 205, 23 S. W. 1099, 25 L. R. A. 386: "The fourth instruction, as to the measure of damages, given for the appellee, is erroneous, in this: that it told the jury they might consider as an element of the plaintiff's damages the past and prospective expenses of his sickness resulting from his injury, and allow such damages as in their judgment would be a fair and just compensation for the same, not exceeding the amount sued for. The only evidence in regard to the expenses of
plaintiff's sickness, caused by the injury, is his own, which is as follows: `I have paid the doctor all the money I had, after selling everything I had, and still owe him.' How much this was is not shown.
How then could the jury estimate it? They could not find the amount from the testimony, and there was therefore no evidence upon which to base this part of the instruction. It was calculated to mislead the jury, and make them think the damages were entirely at their discretion. How far it affected their finding we cannot tell." And this court, on account of this error, reversed the judgment in that case. This court has often held that it is error to give an instruction to a jury where there is no evidence upon which to base it. Johnson v. State, 36 Ark. 242; L. R. & F. S. Ry. Co. v. Trotter, 37 Ark. 593; Same v. Townsend, 41 Ark. 382; Burke v. Snell, 42 Ark. 57; Dickerson v. Johnson, 24 Ark. 251; Morton v. Scull, 23 Ark. 289; Owens v. Chandler, 16 Ark. 651. Under the Constitution and laws of this state the appellant was entitled to a trial of its cause before a jury upon proper instructions in writing. It is, however, not entitled to a new trial on account of harmless errors, but is if the error is prejudicial. The law guards a litigant's rights in this behalf with great care. Courts cannot follow the jury to their room, and ascertain to what extent they were governed by the error. Hence the law gives the litigant the right to a reversal and new trial on account of the error, unless it affirmatively appears that it was not prejudicial. Bizzell v. Booker, 16 Ark. 329;
Magness v. State, 67 Ark. 604, 50 S. W. 554, 59 S. W. 529; St. Louis & San Francisco R. Co. v. Crabtree, 69 Ark. 134, 62 S. W. 64; Arnold v. State, 71 Ark. 272, 74 S. W. 513; Mooris v. Nat. Bank, 104 U. S. 625, 630, 26 L. Ed. 870; Smith v. Shoemaker, 17 Wall. (U. S.) 639, 21 L. Ed. 717; Vicksburg & M. Railroad Co. v. O'Brien, 119 U. S. 99, 7 Sup. Ct. 118, 30 L. Ed. 299; Gilmer v. Higley, 110 U. S. 50, 3 Sup. Ct. 471, 28 L. Ed. 62; Deery v. Cray, 5 Wall. (U. S.) 807. 18 L. Ed. 653.
The court in this case seems to think that the verdict was reasonable and fair, and therefore should be affirmed. That is not the test. According to the test given the verdict of the jury and judgment of the court should be reversed. They were instructed to assess the St. Louis, I. M. & S. Ry. Co. v. Leamons, 102 S.W. 363 (Ark., 1907) appellee's damages at a sum that will in their judgment be a just and fair compensation for, among other things, Page 366 "the 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." There was no evidence upon that point. What were they to conclude? Necessarily that they could assess damages on account of such debts and loss of earning capacity without evidence. The damages suffered on account of loss of earning capacity may have extended through a lifetime. Who can tell how much the jury allowed for them? They were a great part of the damages suffered by him, and it is not reasonable to suppose that they, under the instructions of the court, did not enter largely into the verdict. How much we cannot tell. I think the judgment should be reversed and the cause remanded for a new trial. WOOD, J., concurs.
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