[454]*454The opinion of the court was delivered by
Brewer, J.:
Upon a general statement of this case, the facts are as follows: One Wm. Haas was in the employ of the plaintiff in error as a yard switchman in the city of Emporia, in November, 1879, and on the 17th of that month was, while attempting to make a coupling of two freight cars, killed. His administrator brings this action against the company in behalf of the next of kin, and seeks to recover, claiming that the injury resulted from the negligence of the company. The case went to a jury, which returned special findings of fact, and a verdict in favor of the administrator of $10,000. The railroad company made a motion for judgment upon these findings, which was overruled. Thereupon it made a motion for a new trial, which was sustained; and now both parties bring error to this court, one filing a petition and the other a cross-petition in error. The railroad company claims that the court erred in refusing to give it a judgment upon the special findings of fact. The administrator claims that the court erred in sustaining the company’s motion for a new trial, and insists that judgment should have been entered in his favor for the amount of the verdict. So far as the error alleged by the railroad company is concerned, it is not one which is now properly reviewable. no revie win1'’ No judgment has been rendered against the company, and no final order made within the scope of that term as defined in the statute. The case is still pending in the district court. No judgment may ever be rendered against the company, and if not, it has no ground of complaint. It is well known that the old rule was, that no proceedings in .error would lie until after a final judgment. Our statute enlarges the matters which may be taken up for review, but nowhere does it, in terms at least, provide for the review of a ruling like that complained of in this case. A question very similar was before this court in the case of Burton v. Boyd, 7 Kas. 17, and was there determined adversely to the claim of plaintiff in error. It is true that the facts in [455]*455that case were not exactly parallel to those in the case before us, yet the proposition in the syllabus fits this case very closely; and resting upon that case as a mere authority, there is no such difference as would prevent the decision there from controlling here. Being a mere question of practice, a decision then made, although open to doubt, should be adhered to, unless plainly wrong, or unless gross injustice would result from adherence thereto. Permanency of forms and practice is a matter always worthy of regard. Until the legislature declares a change, that which has been decided as a rule of practice should very seldom be disturbed. The question is not simply what the present justices consider the true interpretation of the statute, but what has been the announced decision of this court. So far as that goes, and so far as it compels a decision of any question in any case, as a rule it ought to be adhered to. Stare decisis is a maxim which in matters of practice almost absolutely controls. Now that the order complained of is not a final order as defined by the statute, is not seriously questioned. It is not final, because as the record shows, each party has been remanded to a newi inquiry as to rights and liabilities. Counsel for plaintiff in error rest somewhat on the third subdivision of § 542 of the code, and insist that an order overruling a motion for judgment on special findings is “ an order that involves the merits of the action or some part thereof.” In the case of Stebbins v. Laird, 10 Kas. 229, an order granting leave to file an amended bill of particulars was sought to be reviewed by proceedings in error before the final disposition of the case. We held that such an order is not one involving the merits of the action; and while not attempting to define the exact scope of that subdivision, held that it could include only such orders as amount to an adjudication, a disposition of some part of the claim or defense. Now it is plausible to say that denying an application for judgment is an adjudication against the claim or defense, in whatever stage of the proceedings it is made; but such a ruling is not one based upon the testimony, but upon some technical advantage which the state of [456]*456the findings is supposed to give as against the general verdict, and it does not cut off the party from subsequently pursuing his rights of claim or defense. In this case the defendant is shut off from no defense which upon the merits of the case it may have. There has been no order or ruling which has deprived it of any real defense on the merits. The case goes on to another trial just as though none had been had. Every defense on the merits which the company had, it still has. The only effect of that ruling is to deprive it of an advantage which, despite the general verdict against it, it supposed it had, not by reason of the, testimony, but by reason of certain findings. At any rate, the ruling does not come so clearly within the scope of- such subdivision as to justify us in departing from the former decision of this court. Furthermore, it may be suggested whether the company has not waived its right to avail itself of the error in such ruling, if error there were, by thereafter making a motion for a new trial, and obtaining it. See further, Brown v. Kimble, 5 Kas. 80; Edinfield v. Barnhart, 5 Kas. 225, in which the court held that an order overruling a motion to dismiss an appeal is not one involving the merits of the action. Also, Dolbee v. Hoover, 8 Kas. 124.
The question presented on the cross-petition is, whether the court erred in granting a new trial, and this ruling the statute expressly provides may be reviewed by proceedings in error; but we have repeatedly held that where the ruling of the court below is in favor of a new trial, its proceedings will be scanned with less scrutiny, because both parties have on the second trial a full opportunity of presenting their claims to a new jury. (Field v. Kinnear, 5 Kas. 233, City of Ottawa v. Washabaugh, 11 Kas. 124.)
Now it is said by counsel for the administrator that the only ground upon which the court in fact granted a new trial is that of excessive damages. While it is probable that this is so, yet upon the face of the record the motion seems to have been sustained upon other grounds, and therefore such other matters are open for inquiry in this court. Returning, how[457]*457ever, to the mere matter of damages, the jury went to the full limit of the statute, and awarded $10,000. The trial court considered this excessive, and so excessive as to 2. Excessive 1 dfcTfor,%rop-~ warrant its interference. Can we in review say that such ruling was erroneous? We think not. Counsel for the administrator have filed an elaborate brief citing many cases in which large verdicts have been sustained for personal injuries. Their argument is practically this, that if for injuries not taking life large verdicts may be awarded and sustained, that when life is taken no verdict can be declared excessive which keeps within the limits of the statute. We cannot assent to this doctrine. Prior to these various statutes in the several states, it was the accepted law that no action would lie in case of death. To obviate this supposed defect in the common law, these several statutes, taking their origin in Lord Campbell’s act in England, were passed.
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[454]*454The opinion of the court was delivered by
Brewer, J.:
Upon a general statement of this case, the facts are as follows: One Wm. Haas was in the employ of the plaintiff in error as a yard switchman in the city of Emporia, in November, 1879, and on the 17th of that month was, while attempting to make a coupling of two freight cars, killed. His administrator brings this action against the company in behalf of the next of kin, and seeks to recover, claiming that the injury resulted from the negligence of the company. The case went to a jury, which returned special findings of fact, and a verdict in favor of the administrator of $10,000. The railroad company made a motion for judgment upon these findings, which was overruled. Thereupon it made a motion for a new trial, which was sustained; and now both parties bring error to this court, one filing a petition and the other a cross-petition in error. The railroad company claims that the court erred in refusing to give it a judgment upon the special findings of fact. The administrator claims that the court erred in sustaining the company’s motion for a new trial, and insists that judgment should have been entered in his favor for the amount of the verdict. So far as the error alleged by the railroad company is concerned, it is not one which is now properly reviewable. no revie win1'’ No judgment has been rendered against the company, and no final order made within the scope of that term as defined in the statute. The case is still pending in the district court. No judgment may ever be rendered against the company, and if not, it has no ground of complaint. It is well known that the old rule was, that no proceedings in .error would lie until after a final judgment. Our statute enlarges the matters which may be taken up for review, but nowhere does it, in terms at least, provide for the review of a ruling like that complained of in this case. A question very similar was before this court in the case of Burton v. Boyd, 7 Kas. 17, and was there determined adversely to the claim of plaintiff in error. It is true that the facts in [455]*455that case were not exactly parallel to those in the case before us, yet the proposition in the syllabus fits this case very closely; and resting upon that case as a mere authority, there is no such difference as would prevent the decision there from controlling here. Being a mere question of practice, a decision then made, although open to doubt, should be adhered to, unless plainly wrong, or unless gross injustice would result from adherence thereto. Permanency of forms and practice is a matter always worthy of regard. Until the legislature declares a change, that which has been decided as a rule of practice should very seldom be disturbed. The question is not simply what the present justices consider the true interpretation of the statute, but what has been the announced decision of this court. So far as that goes, and so far as it compels a decision of any question in any case, as a rule it ought to be adhered to. Stare decisis is a maxim which in matters of practice almost absolutely controls. Now that the order complained of is not a final order as defined by the statute, is not seriously questioned. It is not final, because as the record shows, each party has been remanded to a newi inquiry as to rights and liabilities. Counsel for plaintiff in error rest somewhat on the third subdivision of § 542 of the code, and insist that an order overruling a motion for judgment on special findings is “ an order that involves the merits of the action or some part thereof.” In the case of Stebbins v. Laird, 10 Kas. 229, an order granting leave to file an amended bill of particulars was sought to be reviewed by proceedings in error before the final disposition of the case. We held that such an order is not one involving the merits of the action; and while not attempting to define the exact scope of that subdivision, held that it could include only such orders as amount to an adjudication, a disposition of some part of the claim or defense. Now it is plausible to say that denying an application for judgment is an adjudication against the claim or defense, in whatever stage of the proceedings it is made; but such a ruling is not one based upon the testimony, but upon some technical advantage which the state of [456]*456the findings is supposed to give as against the general verdict, and it does not cut off the party from subsequently pursuing his rights of claim or defense. In this case the defendant is shut off from no defense which upon the merits of the case it may have. There has been no order or ruling which has deprived it of any real defense on the merits. The case goes on to another trial just as though none had been had. Every defense on the merits which the company had, it still has. The only effect of that ruling is to deprive it of an advantage which, despite the general verdict against it, it supposed it had, not by reason of the, testimony, but by reason of certain findings. At any rate, the ruling does not come so clearly within the scope of- such subdivision as to justify us in departing from the former decision of this court. Furthermore, it may be suggested whether the company has not waived its right to avail itself of the error in such ruling, if error there were, by thereafter making a motion for a new trial, and obtaining it. See further, Brown v. Kimble, 5 Kas. 80; Edinfield v. Barnhart, 5 Kas. 225, in which the court held that an order overruling a motion to dismiss an appeal is not one involving the merits of the action. Also, Dolbee v. Hoover, 8 Kas. 124.
The question presented on the cross-petition is, whether the court erred in granting a new trial, and this ruling the statute expressly provides may be reviewed by proceedings in error; but we have repeatedly held that where the ruling of the court below is in favor of a new trial, its proceedings will be scanned with less scrutiny, because both parties have on the second trial a full opportunity of presenting their claims to a new jury. (Field v. Kinnear, 5 Kas. 233, City of Ottawa v. Washabaugh, 11 Kas. 124.)
Now it is said by counsel for the administrator that the only ground upon which the court in fact granted a new trial is that of excessive damages. While it is probable that this is so, yet upon the face of the record the motion seems to have been sustained upon other grounds, and therefore such other matters are open for inquiry in this court. Returning, how[457]*457ever, to the mere matter of damages, the jury went to the full limit of the statute, and awarded $10,000. The trial court considered this excessive, and so excessive as to 2. Excessive 1 dfcTfor,%rop-~ warrant its interference. Can we in review say that such ruling was erroneous? We think not. Counsel for the administrator have filed an elaborate brief citing many cases in which large verdicts have been sustained for personal injuries. Their argument is practically this, that if for injuries not taking life large verdicts may be awarded and sustained, that when life is taken no verdict can be declared excessive which keeps within the limits of the statute. We cannot assent to this doctrine. Prior to these various statutes in the several states, it was the accepted law that no action would lie in case of death. To obviate this supposed defect in the common law, these several statutes, taking their origin in Lord Campbell’s act in England, were passed. They all aim to give compensation for the life taken away, and various attempts have been made to prescribe some exact rule for. computation of the value of the life taken. Several courts have laid down arbitrary rules, but in th¡e case of the K. P. Rly. Co. v. Cutter, 19 Kas. 83, following the case of Rld. Co. v. Barron, 5 Wall. 90, we held that no arbitrary rule can justly be laid down; that the elements which enter into the just estimate of a life are so varied that the matter must be left, under the direction of the court, to the sound discretion of the jury. The purpose of the statute is compensation, and that up to a certain point the value of the life taken should be paid by the wrong-doer to the parties interested in the life. The statute has put the limit at $10,000. We do not understand that that puts a maximum as the value of the most valuable life, with all other lives to be graduated downward therefrom; and yet we do not agree with counsel that because no man would give his life for $10,000, and that as life and money are not commensurate or convertible terms, no court can say, when a jury awards $10,000 for any life, that it is excessive. It is not the loss of the decedent, but the loss of the survivors which [458]*458is to be estimated. That involves not merely the probable accumulations of the deceased, but the probability of the benefit of such accumulations inuring to the survivors. Where one who was the head of a family with minor children is killed, there is a reasonable certainty that his earnings if he had survived would inure directly to the benefit of the widow and children. Where one dies without wife or child, with no one legally dependent upon him, and with only remote relatives as his next of kin, there is only a remote probability that his earnings, whatever they may be, would inure to such next of kin. The law of human experience is, that when a man has no one legally dependent upon him, his earnings, be they great or small, are appropriated to his own benefit or pleasure, so that his life, whatever may be his capacity for earning, has but little if any value to remote relations. Again, when the nearest of kin are not remote relatives, and yet are not in any way legally dependent, the benefit of such life to such next of kin will depend largely upon their needs as well as upon his earnings. Where the deceased, leaving no wife nor child, leaves as his next of kin father or mother, and such father or mother is in good pecuniary condition, it is fair to say that his life would if survived have been of comparatively little value to them. In other words, his earnings would be used for his own pleasure or profit, and not go to the increase of their present good financial condition. The law of human experience and probabilities controls as to these matters. If according to that law the life of the decedent, if continued in existence, would bring little gain to the next of kin, little compensation should be given for his loss. We cannot agree that the theory of the law is to punish for the mere negligent destruction of life; and the law of compensation means that no more should be given to the next of kin than they probably would receive from the decedent if his life had not been taken away. And as before indicated, many matters .must be considered in determining how much that life would probably be worth to such next of kin if it had not been taken away. In [459]*459the case before us the decedent left neither wife nor child; his mother was next of kin, and in determining what would be the probable value of that life to her, regard must be had to what he had done in the past toward her support and maintenance, and what, considering her means and his earnings, as well as his habits and disposition, he would be likely to do in the future. It is not fair to say that all his surplus earnings would go to her, because it is not the law of human experience. If she had means enough for her own support, the probabilities are that none of his earnings would go to her; that in one way or another he would consume them entirely. The statute does not contemplate a speculation on the probable earnings of the deceased; it simply aims to make good to the survivors that which they have probably lost by his death. Of course there is no absolute certainty in matters of this kind. The life taken away to-day by negligence of the defendant, may have been one which by the laws of nature would have passed away to-morrow if no outward accident had intervened, or perchance if it had escaped the negligence of the defendant to-day, it would have fallen a victim to the negligence of some other party to-morrow; so that the real value of the life is problematical and speculative to a certain extent. Of course there are tables of mortality, laws of average, which must be respected and have force in any question which in any degree involves a speculation on the future; but the laws of probability and average are not to be invoked simply by the plaintiff; they make with the defendant as well, and it is entitled to every solution of probabilities in its favor just as fully as the plaintiff is. It appears in this case that deceased was twenty-five years of age; that about ten years ago he was employed for something less than a year in the post office in Chicago; that at the close of such employment he went out to California, and remained there until 1876. It does not appear that during his employment in the post office in Chicago, or during his absence in California, that his labor was of any value to his mother; on the contrary, it appears that at one time she sent to him a [460]*460present of $30. In 1876 he returned home; at that time his representations to his mother were that he had accumulated $500 during his absence, but that he had been compelled to use such surplus during a- two-months sickness. He came home without anything, and the first year after his return he did nothing. The next two years he was employed at thegas works for three or four days a month, at $1.50 a day. This during the three years was all of his earnings in Chicago.' Aside from that, he collected rents due his mother for certain buildings owned by her, and also made such repairs in those buildings as from time to time their condition demanded. This for three years was the sum total of his labors in Chicago; and a young man who lives in a large city like. Chicago for three years, earning no more than he did, must be lacking in either capacity, desire, or need for work. In 1879 he came west, entered into the employ of the Santa Fé road, and remained in such employment for several weeks prior to his death, receiving wages at the rate of $1.90 per day. Was a life such as his had been, and from what it had been, what it promised to be, worth $10,000 to his mother? We are clearly of the opinion that it was not. We think that from the testimony evidently it had been worth nothing to his mother up to the date of his death. From the time that he started out to do for himself up to the day of his death, striking a balance between him and her, he was her debtor instead of she his. In other words, up to the time of his death, and from the time he started to do for himself, his life had been worth nothing to her. For years he boarded with her, receiving clothing from her, and at one time a present of $30. It does not appear that his earnings or his labor ever made good to her the value of her expenses in his behalf; so that, judging the future by the past, his life was one which would have been of but little value to her, and in such a question as this the past is the main light which illumines the future. The enigma of the future of a life is not to be solved by the mere matter of faith and hope, or even by the natural possibilities of accomplishment, but mainly and chiefly by the experiences of the past; [461]*461and what the life has already been. The law runs little along the lines of sympathy and affection; but rather along the lines of the actual and the probable. Tested by the past, the future of this young man’s life promised little to his mother.
Again, it appears from her testimony that she was the owner of four houses and twenty-one lots in the city of Chicago. The value of this property is not clearly disclosed, but the rent she received from the houses she leased was about $50 a month, and the taxes on the property she owned are at present $300 a year, and had been at one time shortly after the Chicago fire as high as $1,000 a year. Such a tax implies no small value to the property. It also further appears that neither she nor her unmarried daughter, who with the deceased comprised the entire family, was engaged in any labor or business, but lived off from the property they owned; and also that the sum total of the deceased’s property was about two months’ wages due from the defendant. It is evident, comparing her means and his needs and earnings, that little of such earnings would go to her. The pecuniary value of his life to her must have been slight. The district court properly held that an award of $10,000 is excessive. We not only think that its ruling is not apparently erroneous, but that it is evidently correct. Counsel in their brief ask this court to name the amount which would not be considered excessive, providing it arrives at the conclusion that the present award is excessive. Such is not the function of this court; the amount which ought to be given, if any should be given, is to be ascertained by a jury. The sole function of the court is to see that the jury in making such award are not influenced by sympathy, feeling or prejudice, and do not go beyond what is fair compensation. We do not know what action we should take if both parties to this proceeding stipulated that this court might upon the testimony as it stands in the record determine what judgment should be entered. In the absence of some such stipulation, we simply inquire whether the district court erred, and in this case we do not think that it did, and therefore affirm its rulings.
[462]*462Finally, in view of the manner in which this case comes before us, we do not feel warranted in attempting a review of other questions which in fact exist in the case. We do not think the practice of bringing a case to this court before final judgment is to be encouraged; and in view of the briefs of counsel, and the stress laid upon this particular question (the amount of damages), we think it right to leave the decision right here. Upon the question of liability, upon the facts of the case, we may add that the case of the same plaintiff in error against Plunkett, 25 Kas. 188, is very nearly in point, and to that case we refer for any discussion of the principles controlling the liability of the defendant.
The judgment will be affirmed, and each party will pay the costs of its own proceedings in error.