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Kline v. Santa Barbara Consol. Ry. Co to make her permanently lame, and to render her to some extent unable to care for herself—a disability continuing up to the time of the trial, and, according to the testimony of her surgeon, likely to be permanent. This would probably impose upon her the necessity of hiring the services of some one to do for her what she could no longer do for herself, and this was an element of damage which she had a right to ask the jury to consider. The value of a person's time is the equivalent of his power to earn money, in a gainful occupation, when he is so engaged, and ordinarily means nothing more. But it is not doing violence to language to say that the ability of a person to care for himself, and the practice of doing so, instead of hiring the services of others, gives a value to his time, even if he is earning nothing, and, if so, the deprivation of such ability by the wrongful act of another imposes upon the wrongdoer the obligation to compensate him for the value of the time he can no longer employ in his own service. Construed in this light the instruction was not erroneous, though it might have been more clearly expressed. The decision in Storrs v. L. A. Traction Co., 134 Cal. 91, 66 Pac. 72, is not authority for or against the point here decided. The instruction sustained in that case was different from that here in question, but it does not follow that this instruction is therefore wrong. Whether this element of damage was sufficiently pleaded, in view of the special demurrer of defendant, may admit of doubt. But if so, the error in admitting evidence as to the extent and permanence of the injuries sustained by the plaintiff cannot have operated as a surprise to the defendant, for it appears that she had submitted before the trial to a physical examination by surgeons selected by the defendant for the purpose of ascertaining what her injuries were, and whether they had been properly treated. The error, if any, was therefore harmless.

The court did err in refusing to strike out the opinion of the witness Lutgen that the car was moving at "an unpardonable high rate of speed," but this error could have had no prejudicial effect in view of the conceded fact that the car escaped all control and descended the grade at a dangerous rate of speed, which the combined efforts of motorman and conductor were insufficient to arrest or moderate.

Numerous exceptions were taken by defendant to the admission of evidence, and refusals to strike out evidence of the suffering endured by the plaintiff in consequence of her injuries. A bystander testified that immediately after the accident she was unable to stand and suffered intensely. Her daughter testified that, when she was brought home, she was unable to walk, and was suffering intensely, and that she continued for days to suffer, could not be moved, etc. A trained nurse in charge of the case testified to the same thing, and the attending surgeon testified that her sufferings were severe. The objections to this line of testimony are that nonexpert witnesses were allowed to give their opinions as to her inability to stand and walk, and as to her suffering, and that it was error to permit them to testify to anything

Kline v. Santa Barbara Consol. Ry. Co . beyond her acts and exclamations indicative of present pain. The witness who testified she could not stand was one of those who assisted in lifting her from the ground and placing her on the car after the accident. Her daughter saw her carried by four men from the car to her house. The trained nurse and the surgeon had nursed and attended her during the progress of her partial recovery. All of the evidence on the part of the defendant, as well as that of the plaintiff, was to the effect that the injury to plaintiff consisted, in addition to superficial bruises, of a fracture of the neck of the femur. In view of this undisputed evidence as to the nature of the principal injury to plaintiff, the evidence that she could not stand or walk after the accident must have been harmless, for a court ought to take judicial notice of the fact that a woman with a broken thighbone will scarcely be able to walk or stand alone. As to the suffering, that also would necessarily follow from such an injury. But the evidence was not incompetent. It does not require an expert to tell whether a person suffers. The appearance of a person who suffers severely is sufficient to manifest his condition to anyone of ordinary intelligence and experience. These witnesses had all observed her, and heard her groans and complaints, and were competent to give an opinion as to her suffering.

There was a conflict of evidence as to whether plaintiff sustained an impacted or unimpacted fracture of the neck of the femur. The surgeon who attended her testified that it was impacted, and it appeared that he had treated her according to that diagnosis. The surgeons who examined her for defendant testified that the fracture was unimpacted, and for the purpose of showing that the treatment she had received aggravated her injury one of these surgeons was asked two hypothetical questions, to each of which the court sustained objections. These objections, in my opinion, should have been overruled, but here again the error was harmless, for, by a mere change in the form of his questions, the defendant's counsel brought out fully the opinion of the witness as to the nature of the injury, the error in treating it, and the injurious results of the treatment.

Appellant, not claiming that plaintiff's instruction No. 7 above quoted is erroneous in any particular except that which has been already considered, makes the point that instructions were given at its request which conflict with No. 7 in other material particulars. If this was so, it would not be a reason for setting aside the verdict, but there is no conflict. Defendant's instructions merely stated, rather too favorably to it, certain qualifications of the rule announced in No. 7.

We have here considered all the points to which our attention has been directed in the petition for a rehearing, and do not deem it necessary to notice particularly other points made prior to the hearing in the district court of appeal.

We think the record presents no material error, and the judgment is therefore affirmed.

We concur: MCFARLAND, J.; LORIGAN, J.; Shaw, J.; Sloss, J.; HENSHAW, J.

SALLEY V. SEABOARD AIR LINE RY.
(Supreme Court of South Carolina, Feb. 27, 1907.)

(56 S. E. Rep. 782.] . Carriers—Delay in Shipment-Connecting Carriers.*-A railway company accepting a bill of lading marked, “Prompt shipment required,” assumes responsibility for delay of connecting carrier.

Same-Recovery of Penalty.-Under the act providing a penalty for failure to deliver freight in a certain number of hours, when notified that prompt shipment is required, Sunday is not to be included in the days for which the penalty is allowed, as freight trains are prohibited by law from running on Sunday.

Appeal from Common Pleas Circuit Court of Richland County ; Klugh, Judge.

Action by J. I. Salley against the Seaboard Air Line Railway. From a judgment affirming a judgment of a magistrate, defendant appeals. Modified. Wm. H. Lyles and E. L. Craig, for appellant. De Pass & De Pass and Jas. H. Fowles, for respondent.

Woods, J. This action was brought in the court of Magistrate Moorman to recover $50 alleged to be due as damages and statutory penalty for delay in transportation of fertilizers shipped over defendant's railroad from Columbia, S. C., by Southern Oil Company to the defendant at Woodford, S. C., on March 24, 1906, and not delivered until April 5, 1906. The answer was a general denial. The judgment for $40 penalty and $2 damages was affirmed by the circuit court. The statute under which the penalty was claimed provides: “Be it enacted by the General Assembly of the state of South Carolina, that from and after May 15th, 1904, all railroad companies doing business in this state shall transport to its destination all freight received by them for transportation within this state within a reasonable time after receipt thereof, not exceeding the following times after midnight of the day of receipt thereof, to wit: Between points not over one hundred miles apart, seventy-two hours; between points over one hundred and not over two hundred miles apart, ninty-six hours, and between points over two hundred miles apart, one hundred and twenty hours. The nearest route by railroad shall be taken in each case as the distance between the points : Provided, that notice be given to the receiving company that prompt shipment of such freight is required, and when requested, such company shall insert in the bill of lading the words, 'prompt shipment required,' which shall be conclusive evidence of such notice, and each such company shall extend such

*See footnote appended to Chesapeake & 0. Ry. Co. v. Stock (Va.), 22 R. R. R. 31, 45 Am. & Eng. R. Cas., N. S., 31.

sto a pening for us, in addithich shajfor good

Salley v. Seaboard Air Line Ry notice to its connecting line or be liable for the consequences of its failure to do so. That any such company failing to comply with the provisions of this act, except for good and sufficient cause, the burden of proof of which shall be on the company so failing, shall be subject, in addition to the liabilities and remedies now existing for unreasonable delay in the transportation of freight, to a penalty of five dollars per day for every day of delay in excess of the time hereinbefore limited, to be recovered by any consignee, who may be injured in any way by such delay, or by the owner or the holder of the bill of lading, in any court of competent jurisdiction. * * *"

1. The bill of lading issued by defendant on March 24, 1906, contained the words, "Prompt shipment required," and the plaintiff testified the fertilizer was not delivered untill April 5, 1906. The defendant undertook to show "good and sufficient cause" for the delay by evidence that the delay occurred on the Southern Railway Company's tracks after the bill of lading had been issued. With full knowledge of the facts, the defendant chose to issue its bill of lading before the actual receipt of the goods, and it must be held to have voluntarily assumed responsibility for them; the railroad company which had actual custody being as between the defendant and the consignee nothing more than the agent of the defendant. Whether the congestion of cars on the track of the Southern Railway Company and the alleged necessity of transferring the fertilizers to another car were “good and sufficient cause" for the delay was a question of fact decided by the magistrate and the circuit judge and hence not subject to review by this court.

2. The bill of lading was issued on Saturday, and the defendant contended the magistrate should have at least omitted Sunday in his computation of the 72 hours allowed for the shipment to reach its destination, and should have allowed judgment for seven days' penalty instead of eight days'. It is true the statute does not expressly provide Sundav shall be excluded in the computation of the 72 hours, but its exclusion is strongly implied. The general rule laid down in this country is that, where an act is required to be done in a certain number of days exceeding a week, Sunday is not excluded in the computation; but, if the number of days is less than seven, Sunday is not counted. State v. Michel, 78 Am. St. Rep. note 379; 28 Am. & Eng. Ency. 223. It has been held, however, that Sunday must always be counted when the time is prescribed by statute. In this case the time prescribed relates to the conveyance and delivery of freight, and, except for special trains not necessary to mention here, the running of freight trains on Sunday is prohibited. Again, it is significant the statute requires the time to be measured by hours instead of by days, and it seems fair to interpret the meaning to be working hours, hours in which railroad companies may operate their trains and deliver freight. The Sunday after the shipment should have been counted in as a part of the 72 hours, and therefore the penalty for one day should be deducted from the judgment. This conclusion, it may

25 R RR-4

Missouri, etc., Ry. Co. v. Smith be well to say, has no application to the provisions of the Code of Civil Procedure of 1902 as to the time therein allowed for serving papers, etc., for the obvious reason that the provision of section 407, "if the last day be Sunday it shall be excluded," clearly implies, if Sunday is not the last day, it shall be included in the computation.

3. Without going into any close analysis of the evidence, it

plaintiff in the usual course of business which the defendant had every reason to have in contemplation when the bill of lading was issued; and it is not necessary to refer the finding of $2 damages to any special items not to be anticipated by the defendant.

The judgment of this court is that the judgment of the circuit court be affirmed, with the reduction of $5, the overcharge in the amount found as penalty.

MISSOURI, K. & T. Ry. Co. v. Smith.
(Circuit Court of Appeals, Eighth Circuit, March 25, 1907.)

(152 Fed. Rep. 608.] Appeal–Record-Motion for New Trial_Court Rules.—Wher: rulings and instructions objected to, with exceptions thereto, were particularly set out and asserted to be erroneous in the assignmenis of error contained in appellant's brief, as required by Court of Appeals Rule 10, par. 3 (Ind. T. Ann. St. 1899, p. 937), and at the time the motion for a new trial was presented and ruled on, rule 3, declaring that exceptions shown in the record would be considered on appeal, irrespective of whether the ruling or action of the court was specifically set out in the motion for a new trial, if it was properly set out in the assignment of error, appellant was entitled to a consideration of such rulings, notwithstanding the subsequent amendment of ruis 3, requiring the objections to be specifically set out in a motion for a new trial.

Carriers-Passengers—Ejection.*- In the absence of a regulator; statute, when a passenger refuses or fails to produce evidence of his right to transportation or pay the lawful fare after demand and being accorded a reasonable time for compliance, he forfeits his rights as a passenger, and subjects himself to ejection from the train.

Some—Tender of Fare by Third Person.*_Tender of fare by a third person, with the passenger's consent, is effective, or otherwise, to prevent a rightful ejection in the same manner as if the tender had been made by the passenger himself.

Same-Recanting-Tendering Compliance.*_Where a passenger willfully refused to establish his right to transportation or pay far-, his rejection from the train was not rendered wrongful because of a

*See foot-notes appended to Missouri, etc., Ry. Co. v. Smith (Ind. Terr. App.), 21 R. R. R. 688, 44 Am. & Eng. R. Cas., N. S., 688.

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