Honea v. St. Louis, Iron Mountain & Southern Railway Co.

151 S.W. 119, 245 Mo. 621, 1912 Mo. LEXIS 260

• Court: Supreme Court of Missouri
• Decided: November 14, 1912
• Status: Published

Opinions

LAMM, J.

— Suing in the Butler Circuit Court for the alleged wrongful death of her husband, John Honea, plaintiff had judgment for $10,000' on a jury’s verdict. From an order granting a new trial on defendant’s motion, she appealed.

The specific allegations of negligence put to the jury will be set forth in the words of the pleader in connection with a discussion of plaintiff’s instruction number one. For the present, as a foreword, a mere outline of the petition will do, viz.:

On the theory that Honea was a section man about his master’s business on a hand car in charge of defendant’s foreman and was run down and killed by a passenger train, the petition, in one specification, counted on the negligence of the operatives of the train and asked recovery under the humanity doctrine. This specification was not supported by proof and, hence, was not put to the jury. There was another which may be summed up in the charge of the petition, thus: The train was on time and it was the duty of the section foreman to clear the track by causing and permitting section men to take the hand car from it in time to avoid a collision, but the foreman, failing to observe the time of the train and its approach, negligently required and caused Honea to remain on the hand ear and tract too long to prevent a collision, whereby he was killed.

Defendant answered as follows: It admitted its incorporation; it denied generally other allegations; and then set up two defenses — assumption of risks, and contributory negligence.

It may be as well said at this point as at any other, that defendant, as to testimony, stood mute at the trial, making no effort to put in proof on its defenses or to cut down the damages.

In brief the case on the facts as developed by plaintiff is this:

Honea was an experienced section man in defendant’s employ in Wayne county, say, thirty-five years of age, and earning at the time a dollar and a quarter a day. He was under a foreman named Joe Daniels-who, in turn, was in charge of the hand car presently mentioned. Defendant ran a regular south-bound passenger train, known as the “Mexican Special,” on Tuesdays and Fridays of each week. Its name and days returning north are blind. Its time at Piedmont en route to the south is some after one ojclock p. m., but the exact schedule time is not disclosed. A bit after one o’clock of a winter’s afternoon in 1908, John Honea and a fellow workman named Pearson were ordered on a hand car by Daniels, their foreman, in the railroad yards at Piedmont, and they, including the foreman (and with him in charge), started south on the car on an inspection trip over the section. Besides the three men, the hand car was equipped with some iron and steel tools — a jack, lining bars, claw bar, shovels, spike mauls and tamping bars — and the trip was partly because a place in the track needed fixing. At about two miles south of Piedmont the hand car was overhauled by said “Mexican Special” running fifty or sixty miles an hour and Honea was killed. In that region defendant’s road runs on sharp curves in the hills, amid trees and through cuts and the look ahead or back is not far. Under the proof the train was on time. The men on the hand car faced south away from the train — Honea working its rear and the foreman and Pearson its front lever. In running round a very sharp curve Pearson got a premonition from what he thought was the echo of a whistle that a train was coming behind them. At the same instant the foreman and Pearson, turned their heads and discovered the “Mexican Special” two telegraph poles, say, 360 feet, bearing down on them from their rear. At that time the hand car was rolling about six or eight miles an hour. We have only a confused account, giving a somewhat blurred picture, of the scene, for the drama was played out in a moment. To use the vernacular of P'earson, he “hollered:” “The car will kill us, Joe. My goodness!” The foreman “hollered:” “She’s got us, boys!” Thereat the foreman “jumped” on the brake and witness saw Honea jump off at the rear, and the hand car then either rolled or slid seven or eight feet, when the foreman and Pearson jumped off before it came to a dead stop. We gather that the first impulse of the foreman was to run, but, changing his mind in a flash and in great excitement he and Pearson grabbed the handles of the hand car and got one end of it from the track, when the locomotive was on them striking it-a slanting blow and tumbled it and the two men, or at least one of them, down the dump. The foreman was present at the trial as defendant’s witness, but, as said, did not testify for defendant and was not called to testify for plaintiff, so that the case stands on material points on the testimony of P'earson and he got (what we take as) merely a glimpse of Honea. As said, he saw him jump off the car after the brake was set, he remembers seeing him about the center of the track, apparently with his right side somewhat towards the train, stooped over and in the act, as witness thought, of taking a step towards the car as if to take hold of it, hut the car.had rolled on and the next he saw of Honea, a moment afterwards, his lifeless body lay at the foot of the dump and sixty feet south of where he was struck. This bit of the record tells at one stroke enough of the story on that head: “Q. What was the last you saw him doing? A. When he stepped down off the car, was the last thing I saw him doing; and I realized the danger that I was in and I stuck my head down to keep from realizing how close I was to my death. I was in a stooping position and couldn’t see what, anybody else was doing. Q. Did you see him stoop to get hold? A. Yes, sir; he stepped off straight back (indicates); the last time I saw him he was going like this (indicates); and I was in a stooping position, and in a strain and in a hurry, and that was the condition I was in. Q. Was he stooping over towards the car? A. Yes, sir-, the last time I saw Honea that was where he was at, in the center of the track. ’ ’

Defendant had a rule to the effect that the section foreman should clear the track of hand cars ten minutes before train time. The instructions to the section men were to assist in taking hand cars from the track in emergencies. The uncontradicted testimony clearly shows that it was made the duty of the foreman to enforce that rule. To that end he was furnished with a time card and with a watch inspected-by defendant’s inspector. The section men had no such watches or time cards. On this occasion Pearson had ho watch at all, and Honea’s was described by the witness this way: “Well, he had a little old — one of these dollar clock watches. It is called a watch. There is no allowance to be made on it.”

Speaking of. the duty of the foreman, the rule, the time card, the watch, Pearson testified further as follows: “Q. Whose duty was it to keep track.of the schedule of these trains, and have the hand car put in the clear for them? A. Our section foreman’s duty, because he was the man they gave the time card to, kept the time card in his pocket; and also they required him to have a, timepiece — a watch, you know. Q. And keep it in good repair? A. Yes, sir, for I have seen him go to the watch man in the jewelry store, and have his watch examined. Q. And did he have such a timepiece on that day? A. Yes, sir, he did. Q. That watch inspector was the inspector of this company, wasn’t he? A. Yes, sir. . . . By the Court: The question is: do you know what the rule was ? A. Yes, sir. Q. Now, tell the jury. A. Supposed to be in the clear as much as ten minutes. Q. Whose duty was it to get you in the clear? A. Our foreman’s. Q. Did the foreman do it in that case? A. No, sir.”

Referring to the necessity of getting the hand car and tools out of the way of the train the witness testified: “Q. Why were you getting this car off? A. In order to save the car; and also save having that there collision, them track tools — my intention was— on that sharp curve, there had been wrecks on that same curve, a little trouble, some; and my intention was to put them in the clear if I could.”

Further as to the duty of getting hand cars out of the way of trains, the witness made answer to questions as follows: “Q. I’ll ask you if it was a part of your duties as section man, when a train was approaching, to get your hand car off? A. Yes, sir. Q. That is the only way you had of getting the car off— was lifting it off ? A. Yes, sir, drag it off; any way to get it off. Q. Those were your instructions from the company? A. From the foreman.”

Further along appears this: “Q. On whom did you and Honea rely to keep you posted on these trains, when they were due, and when to get in the clear for them? A. Well, on the foreman, I did. Q. And Honea did, too; didn’t he? A. Yes, sir. By Judge Green: How do yon know lie did? A. Well, I know about one collision. We had been in a pretty tolerable close place before; and we kept pulling until he demanded us to take the car off; that’s what I am going by. And we got in the clear that load of poles. Q'. Was this that same foreman? A. Yes, sir.”

The court sustained the motion for a new trial on the ground of error in plaintiff’s instruction number one — of which presently.

It is argued at our bar in support of the order granting a new trial that there can be no recovery because of* two bars put up by the law, to-wit: contributory negligence and assumption of risks. On this record and on those contentions we make the following observations:

Honea was in the line of his duty as a servant of defendant and was killed while about his master’s business and not his own and in the unsafe field provided by the master for him to labor in. The master key unlocking the heart of the matter is that, without a particle of fault on his own part, he lost his life because the master negligently undertook to run a train and hand car on the same track, at the same time, in the same direction, at a speed as sure to result in the train’s overtaking* the hand ear (if not taken off) as that ebb tide follows flood tide or day follows night -in nature. There could be no two ways about it that the thing that happened was bound to happen, namely, that the hand car would be caught. There are three things said by the answer to stand between the master and liability, viz.: assumption of risks, the contributory negligence of Honea and the general denial. The general denial is brushed away by the proof. No contributory negligence was shown. This, because: It is no overstatement to say there was no evidence of any probative force tending to show it in Pearson’s narrative. The fact is that Honea and the hand car were under the supervision of the section foreman, who, pro hac vice, was the master’s alter ego. The fact is that when the alarm was given, the hand car, which conld not run away from danger, was slowed down, so that Honea jumped off at the rear. That he did jump off and was seen, in the mere flash of time that followed between his getting off and his death, partly turned, partly stooping, may be, and partly taking a step towards the hand car that had moved on (if that be so), is to be utterly repudiated as evidence tending to show the contributory negligence of Honea.. A man, in almost the twinking of an eye, brought face to face with deadly peril, menacing, imminent arid about to fall, is not (by just men) after the event to have his acts weighted as by the scales of a goldsmith, or ■viewed through a microscope, or dissected as by a surgeon’s knife, or analyzed by metaphysical splitting of hairs as by the subtle rules of a logician, or tested, as chemists do matter, by acid. The rule to go by in that plight is: Put yourself in his place. To my mind, in getting at defendant’s liability, it matters not a whit whether Honea had, at the instant, an impulse to follow the hand car like a soldier to aid his comrades in removing it from the track to save the lives of the people on the train, or whether he was momentarily confused by excitement and had no definite object at all, or had not yet g'ot his balance after leaving the moving hand car. A court of justice, moving on common sense lines, is not to quibble or niggle about his conduct and with speculative daintiness measure it by two or three pulse beats and construe it sourly and narrowly in order to relieve a defendant who negligently brought a situation about that would try the soul of any man.’ Nor is it worth while to speculate on whether Honea, hard beset by death, by great good luck (utterly forgetting the welfare of the train and its passengers) could have gathered his wits and muscles in the nick of time and jumped sideways out of danger. May A wrongfully put B in sudden peril of his life and then say to B’s widow: Madam, your husband was a slow coach? He was fat-witted or panicy? He lacked a chilled-steel nerve? His judgment was not cool and steady enough? Nor do I care for the fortuitous circumstance that Honea’s comrades were not killed. That some are saved, as though brands plucked from the burning, in such a flurry and riot of danger, is no evidence that the one not saved died as the fool dies, to-wit, by acts sounding to folly and negligence. As we have said on facts somewhat similar:

“We may not be allowed to review this transaction from the standpoint of the way it looks to us, glancing back. We Imow — he did not know. It must be judged of by the way it would look to a reasonable man before the jump. Being suddenly called upon to consider a question of life and death in the face of a danger imperiously menacing him, he acted on appearances under a natural and allowable impulse of self-preservation and the law will not concern itself over-closely in scrutinizing and gauging his judgment, because men facing confusing perils sprung on them quickly are not called on to act with coolness and precision. The impelling question is whether appellant’s own skirts are clear of blame for the fire, rather than whether respondent acted with good judgment in escaping its flames, and, in our view, the contributory negligence of respondent may be considered out of the case under the facts presented for adjudication.” [Root v. Railroad, 195 Mo. l. c. 357.]

So we say here — under the facts, there was no contributory negligence on Honea’s part. The dominating fact here is the negligence of defendant and that alone. Boyd v. Railroad, 236 Mo. 54, is in point, arguendo.

Nor is the doctrine of assumption of risks in the case. Deceased could make no valid contract (and the law implies none) to assume the risk of his master’s negligence. Running hand cars and trains on the same track, at the same time and at the same point is not an ordinary risk incident to railroading. -A risk raised by such combination of things (when the master is in charge of the hand car) is one springing from the master’s want of care. Here there was a rule. Bnt rule or no rule, no master could run hand' cars and trains that way without violating a duty to its servants. As put in Charlton v. Railroad, 200 Mo. l. c. 433: “So, too, in the assumption of risks by a servant it is well to consider a certain assumption by the master, and that is, that the master impliedly contracts with the servant that he will exercise ordinary care to protect such servant from injury by providing a reasonably safe place for him to work. ‘When these two assumptions are considered as proceeding hand in hand, it will be perceived that the risks assumed by the servant are those risks alone which remain after the master has exercised ordinary care.” In Curtis v. McNair, 173 Mo. 270, the right doctrine is expounded in the light of our repeated adjudications. [Q. v.]

At this point it is a little worth while to see what obstacles were planted in the way of the widow’s suit for her to overleap. Although the questions of contributory negligence and assumption of risks had not a foot to stand on, and were wholly beside the case made, yet her case was made to run the gauntlet of them both in a set of argumentative instructions. Not only so, but although plaintiff abandoned the averment of her petition based on the negligence of the train crew, put in no proof thereon and did not in her instructions seek recovery under the humanity doctrine, yet by inadvertence those abandoned theories (with others not within the pleadings at all) were also formally instructed on, thereby confusing and littering up the minds of the jury with extraneous issues and notions to the detriment and hazard of her meritorious case — witness six instructions given for defendant, to-wit:

“4. The jury are instructed that when John Honea accepted employment as a section laborer on defendant’s line of railroad it was a part of his duty to go to'and from his work upon a hand car, and that in so riding on said hand car, he assumed and took upon himself all of the risks incident to such employment' among which was the risk of being overtaken by trains, on defendant’s road. It was not the duty of defendant’s section foreman to warn said Honea of the approach of such train, and you cannot find a verdict for the plaintiff in this case on account of the failure of defendant’s section foreman to notify Honea of the approach of the train which struck deceased.

“5. The court further instructs the jury that defendant’s employees in charge of the train had the right to presume that Honea and the other section employees would look out for themselves and keep out of danger. It was not negligence on the part of said train employees to run the train at a high rate of speed, and you cannot find a verdict for plaintiff on account of the manner in which the passenger train was handled by defendant’s employees.

“6. The court further instructs the jury that it was not an act of negligence on the part of defendant’s employees to run its passenger train over the portion of the road on which the hand car was being operated, and the plaintiff cannot complain of the character of the road at that place, nor of the conduct of the employees in the management of the passenger train, as defendant’s employees had the right to run the train at such a rate of speed as they deemed proper, due regard being had to the safety of the passengers on said train. And you cannot find a verdict for plaintiff, unless you find from the evidence that defendant’s employees in charge of the engine saw the deceased John Honea on the track in the act of removing the hand car in time to have prevented injury to him and that they failed to exercise due care to. avoid striking him after discovering his peril and danger.

“And yon are further instructed that said train employees were not required to stop the train, after discovering the peril of said Honea, if the attempt to stop the train would have been attended with danger to the passengers riding thereon.

“7. The court further instructs the jury that, if you find from the evidence that other section employees on the hand car got off the track in safety and that John Honea by the exercise of due care and caution for his own safety could also have gotten off the hand ear, or did get off the hand car in time to avoid being struck by the train and that he was thereafter struck in consequence of his remaining on the track, then in that event the plaintiff is not entitled to recover in this case.

“8. The court instructs the jury that, if you find from the evidence that the death of John Honea was the result of an accident in consequence of his being struck by a train, if you find that his death was caused in part by the negligence of the train employees as well as partly by his own negligence or want of care, then and in that event the plaintiff is not entitled to recover.

“9. The court further instructs the jury that although you may believe from the evidence that the foreman, Daniels, required plaintiff’s husband to ride upon the hand car while said hand car was being moved upon defendant’s track; yet that fact of itself does not entitle plaintiff to recover, for it was the duty of plaintiff’s husband to keep a watch for his own safety; and if you find that by listening he could have heard the train, or by looking he could have seen it; or if you find that he did see it, and got off of the hand ear in time to save himself and was struck by the train in consequence of his remaining on the track, then your verdict must be for defendant.”

We shall not stop to analyze those instructions one by one. In his zeal learned counsel, by inadvertence, led the court into error. They could not well be more evenly misleading*, more evenly argumentative and mischievous than they are, taken as a series or one at a time. One excuse for reproducing them is that they may serve as models of how not to instruct a jury in a case with facts like the one at bar. Every one of them was an arrow aimed at the right of the case, under the facts of this record and on the theory on which plaintiff sought her recovery, viz., the negligence of the foreman. The master himself in the person of Daniels had charge of that hand car and of Honea. The question was: ' How did he acquit him.self ? It was error to give any of them and if plaintiff had lost her case the verdict must have been set aside mstanter.

’Thus undeservedly afflicted with troubles and tribulations, plaintiff “plucked the flower, safety, from the nettle, danger,” and then — lost it. This, it is said, on one of her own instructions. So, her case (we borrow Moore’s figure),

“That stood the storms when waves were rough,

Yet in a sunny hour fell off

Like ships that have gone down at sea

When heaven was all tranquillity. ”

(Nota bene, by way of a sidestep: There be those who say that poetry has no place at all in jurisprudence or legal exposition. Quoad hoc, it may be said: The French have a saw: He who excuses himself accuses himself. Not caring to fall foul of that adage, we enter no excuse, but point to the venerable dictum of the Mentor and Master, Sir Edward Coke (Go. Litt. 264): “The opinions of philosophers, physicians and poets are to be received and alleged in causes.” Quod erat demonstrandum.)

It is of judicial interest to see how that thing happened. It is argued that one of her instructions did not follow her petition in essential matter. Let us look to that:

The petition.

“. . . . that the said passenger train, which collided with John Honea and the hand car as aforesaid, was on time, and that it was the duty of Honea’s foreman to have caused and permitted John Honea and his associates to take the hand car and leave the track before said train had time to collide with either of them, but that the defendant’s foreman, in said passenger train and the other section men with the hand car, carelessly and negligently failed to observe the time of said passenger train and the approaching thereof, and carelessly and negligently required, caused, and permitted the said John Honea to remain upon said hand car and railroad track too long to prevent collision with said passenger train, and as a result of said carelessness and negligence upon tbe part of the defendant’s foreman in charge of John Honea, coupled with the carelessness and negligence of the officers, agents, servants and employee's of defendant in charge of defendant’s passenger train and engine which struck and collided with John Honea and the hand car used by him, caused the death of tho said John Honea,

The instruction.

“The court instructs the jury that if you believe and find from the evidence in this cause that it was the duty of defendant’s foreman to have caused and permitted John Honea and his associates in the employ of the defendant to take the hand car and leave the track before train number eleven could collide with the hand car and section men, but .that the 'defendant’s foreman, in charge of Honea and other section men, with the hand car, carelessly and negligently caused and permitted John Honea to remain upon the hand car and railroad track too long to prevent collision with said passenger train and as a result of said carelessness and negligence upon the part of defendant’s foreman, in charge of Honea, defendant’s passenger train or engine thereof struck and killed Honea, about January 28, 1908, in Wayne county, Missouri, and that the defendant’s railroad runs through Butler county, Missouri; and that plaintiff was Honea’s lawful wife at the time of his death and that he was killed without any negligence on his part, then your verdict will be for the plaintiff, Mary Honea.”

The vice of the instruction is said to he in omitting all reference to the allegation in the petition that the foreman “carelessly and negligently failed to observe the time of said passenger train and the approaching thereof.” On that omission we make some observations, viz.: That allegation is carried over in substance and necessarily implied in the allegation that followed, to-wit, that the section foreman carelessly and negligently caused and permitted Honea to remain upon the hand car and track too long to prevent a collision. In legal effect the one includes the other in reasonably fair construction. The latter allegation is covered by the instruction and, it seems to me, in final analysis, it is the real, the ultimate ground of negligence complained of and put to the jury. In the proof of the charge made in the petition and thus incorporated in the instruction, the rule of defendant (testified to without objection) requiring the track to be cleared of hand cars ten minutes before the time of the passenger train, the fact that the train was on time, that the section foreman had a time card and watch regulated by defendant, that part of his duty was to make the clearance and that he failed to do so — we say the proof on one and all of those things is after all but evidence tending to prove the ultimate and justiciable fact that defendant, through its section foreman, negligently caused Honea to remain on the hand car and track and come to his death thereby. The unfortunate word “permitted” is used loosely in both petition and instruction, but it did no harm, because it was coupled by the conjunctive conjunction ‘ ‘ and’’ with the word ££caused. ’’ The jury had to find both and that was well enough. We look on the word “ caused” as the master-word. That word carried the jury back to the whole body of the proof. Unless defendant through its foreman caused deceased to remain too long in peril, plaintiff ought to be cast — otherwise, then otherwise.

But it is argued that the jury would conclude from the instruction that the failure of the section foreman, after the approach of the train was discovered, to stop the hand oar and get it and his men out of the way of the train was within the purview of the language; that there was no such ground of recovery possible under the facts, and therefore the verdict of the jury must be referred to that erroneous theory. But are the men in the box not men of sense? Why speculate on whether they adopted such narrow and unlikely theory when under the evidence there was a plain, broad highway leading in another and a right direction, to-wit, in the foreman negligently performing his duty to inspect Ms watch and his time card and clear the track according to rule? That was the obvious, open and sensible view for the jury to' take of what “caused” the accident. If defendant wanted the jury fenced off from taking some other fanciful view, why did it not ask an instruction of its own on that point? If we were once to adopt the rule of reversing cases where a word or a phrase, standing alone, admits of a double meaning, one of which is mischievous and the other is not, we would affirm but few judgments. Men, under oath in a box, taking a sober and vital part in the administration of justice, are presumed by the law to be reasoning men, apt in solving the problems of life by the aid of reason, i. e., everyday sense. There ought to be no presumption indulged that unless fenced in by the court at every single step they will leave the obvious path pointed out by the proof, and within the fair meaning of the instructions, and wander off into a side path outside the proof.

Moreover, conceding the instruction was somewhat inartificially drawn, yet with the broad current of the case running in favor of plaintiff, with defendant putting in no proof at all, explaimng nothing, denying no evidence, can, we say that the “substantial rights of the adverse party were affected,” or that the “merits of the action were materially affected?” The statutes hold out a steady lamp' to guide appellate courts in administering justice in that particular. We read our duty in the light of those statutes, viz.:

Sec. 1850, R. S. 1900, reads:

“The court shall, in every stage of the action, disregard any error or defect in the pleadings, or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”

Sec. 2082, R. S. 1909-, reads:

“The supreme Court, or Courts of Appeals shall not reverse the judgment of any court, unless it shall believe that error was 'committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action.”

The verdict of the jury was so manifestly right and was won by plaintiff so hobbled and handicapped by erroneous instructions given for defendant, that it ought to take more error than can be found in- her instruction to upset her verdict.

It is argued the verdict is excessive, and that, as the point was made in the motion for a new trial, the order granting one may stand on that foot, although the court did not put its action upon that ground. If this suit were under the penal statute, which it is not, then this contention would seek the statute, providing (R. S. 1909', Sec. 5425) that railroad corporations causing injury to other - persons from which death ensues, “shall forfeit and pay as a penalty, for every such person, employee or passenger so dying, the sum of not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury, which may be sued for and recovered,” etc.

We think, on further deliberation, the case was not brought or tried under the penal statute, but under sections 5426 and 5427 that are not penal. It is sufficient to hold in this case that if there were circumstances of mitigation or aggravation, the jury had the facts and all of them defendant cared to elicit; for defendant, as said, laid its hand on its mouth and put in no proof whatever. Some weight must be given that fact. The jury being entitled to deal with the statute as having compensatory features, this particular jury had all the facts this particular defendant thought necessary to submit to them on that phase of the ease. It had also, on that theory, all the instructions defendant asked, and plaintiff’s instruction on that score is well enough.

It seems clear on principle that the order granting a new trial can not stand on the proposition that the verdict was excessive. Concede decedent was of humble rank, was employed humbly on a humble wage. The proof goes to that extent and means he was a poor man in pocket. "Whether he had a family is left dark. Now, are we told as a matter of law that the mere humbleness of the dead man cuts down the value of his life to his widow below $10',0001 However humble, may we not presume, in the absence of testimony to the contrary, as here, that he came up to full measure in every quality of worth — worth as a man, worth as a father (if he was one) and worth as a husband? I think so, and take leave to say that I feel a certain .pride (if a judge may have pride) in holding, under recognized legal precepts, that odious things are never presumed without proof.' So, shall we assume that his present earning capacity (if that is to be taken as the guide) would always remain at $1.25 per day? Moreover, is the law so deadly cold as to gauge the value of a life alone by the dollars and cents the dead man was earning? That is one standard, but that it is the only one known to the law I can not agree to. Be that as it may this defendant, who did not care to even try to whittle away decedent’s value to his wife by evidence before the jury, ought not to be heard to do so by presumption or argument on appeal. It, silent, below, left the jury to fix the value of the man’s life on the proof adduced and the instructions given and should abide the event.

We do not mean to say that the jury’s award of damages is beyond the power of the court to correct if it should appear that the discretion given the jury under this statute has been abused. The discretion given the jury in such case is like the discretion given the trial court in other matters it is a sound discretion and when so exercised is not subject to review in the appellate court, but when it appears to have been abused the court will give relief.

In view of the premises, the order granting a new trial was erroneous. It should be reversed with directions to reinstate the verdict of the widow, as of its •original date, and to enter judgment thereon. It is so ordered.

Valliant, G. J., and Kennish and Brown, JJ., ■concur; Graves, J., dissents in an opinion filed, in which Woodson and Ferriss, JJ., concur.