Anderson, J.,
delivered the opinion of the court.
This suit was brought in the circuit court of Harrison county by appellees, mother and father and brothers of Jas. F. Garnett, deceased (who died leaving neither wife, children, nor descendants of children), against appellant, Louisville & Nashville Railroad Company, for damages resulting from the alleged wrongful death of said decedent caused by appellant. Appellees recovered judgment in the sum of twenty thousand dollars from which judgment appellant prosecutes this appeal.
Appellant at the time and in the manner provided by the federal statutes on the subject sought to remove the cause to the federal district court for the southern district of this state, in which district Harrison county is situated. Tlie petition for removal was accompanied by a bond which was approved by the court. The application for removal was based on the ground of diversity of citizenship of the parties in connection with the fact that the amount in dispute, exclusive of interest and costs, exceeded the sum of three thousand dollars. The trial court refused to malee the order of removal, which action is assigned as error. Appellant’s petition for. removal alleged, in addition to the existence of the jurisdictional amount and other formal requisites, that appellant was a Kentucky corporation and a resident and citizen of that state, while the appellees Avere residents and citizens of the state of Alabama.
Appellant contends that in vieAV of the fact that the federal district courts are given jurisdiction of a cause of this character by virtue of section 24 of the Judicial Code (II. S. Comp. St., section 091), it folloAvs that it was re
movable by the defendant from the state court to the proper federal district court under section 28 of the Judicial Code (section 1010). The applicable statutes governing the question are sections 24, 28, and 51 of the Judicial Code. By section 24 the district courts of the United States are given jurisdiction of all causes of a civil nature at law and equity where the matter in controversy exceeds three thousand dollars and is between citizens of different-states. Section 28 provides, among other things, that such suits shall be removable into the district court o'f the United States for the proper district by the defendant or defendants who are nonresidents of the state where the suit is brought. Section 51 (section 1033) provides that no suit shall be brought against any person by original process in any other district than that whereof he is an inhabitant, except where the jurisdiction is founded on diverse citizenship, in which event suit may be brought only in the district of the residence of the plaintiff or defendant. ■
It is argued with great force that section 51 of the Judicial Code is a venue statute and not a statute conferring jurisdiction; that section 24 of said Code confers jurisdiction of causes of this character on the federal district courts, and that by virtue of section 28' of said Code appellant was entitled to, remove this cause to the proper federal district court because said section expressly gives the defendant or defendants who are nonresidents of the state where the suit is brought the right to such a removal. •
On the other hand, appellees contend that under section 51 the federal district court for the southern district of this state,. wherein Harrison county is situated, had no original jurisdiction of this cause because neither the plaintiffs nor the defendant were residents of said district, and therefore the cause was not removable to that court from a state court of that district; that no cause of this character can be removed from a state court to a federal court, unless it could have been brought originally in the federal court to which it is sought to be removed.
We merely state the contentions of the respective parties with reference to this question. The same question was before this court in
Stewart
v.
Cybur Lumber Co.,
111 Miss. 844, 72 So. 276. The court held in that case contrary to the contention of appellant. We are unwilling to overrule that case, especially since it finds support in
Ex parte Wisner, 203
U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264.
The action of the trial court in refusing to direct a verdict in appellant’s favor'is assigned as error. A determination of this question requires a consideration of the case made on behalf of the appellees. The deceased was killed by being run down and struck by one of appellant’s trains, in the corporate limits of the city of Biloxi near appellant’s depot. It occurred in the nighttime. The train was running at a speed of from fifteen to twenty miles an hour. The deceased was walking between appellant’s main line and its passing track along a much frequented path. When the
engine
pulling this train on the main line got within about twenty feet of the deceased, he suddenly stepped nearer the main line track within the danger zone of the approaching engine, but not between the rails, and was struck either by the pilot beam or the cylinder 'of the engine and killed. The evidence shows without conflict that immediately before the deceased stepped within the .sweep of the engine he was walking in a place of safety, and that after he moved into a position of danger it was utterly beyond the power of the engineer to stop the train in time to avoid striking deceased. It is argued on behalf of appellant that the deceased’s death was caused alone by his own fault; that the speed of the train had no proximate causal connection with his death; that if the train had not exceeded the speed limit, still the deceased would have been killed because it would have been impossible to stop it within twenty feet. It should be borne in mind that the deceased was not run over by the engine; that he was not between the rails, but on the outside near the ends of the cross-ties; and that he was killed as the result of being struck by the pilot beam or cylinder of the engine. Can it
be said with certainty that it the train had not exceeded the speed limit the deceased Avould not have been killed? We think not. If it had been moving- at a speed not exceeding six miles an hour when deceased was struck by the engine, certainly the blow would have peen with very much less force than it Avas AAdrile running at a speed of from fifteen to tAventy-five miles an hour; it might have done him little if any, harm. A train running not more than six miles an hour is running very slowly. We think this was a question for the jury.' It was a question about Avhich reasonable minds might differ, therefore the trial court committed no error in refusing to direct a verdict for appellant.
The action of the court in granting the folloAving instruction for appellees is assigned as error:
“The court instructs the jury for the plaintiffs that, if you find for the plaintiffs, the measure of their damages is the present value of the. life expectancy of the deceased. The amount, if you find for the plaintiffs; should be fair and reasonable as the evidence may show, if any, to compensate them for the death of said deceased Garnett, not to exceed the sum of sixty thousand dollars.”
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Anderson, J.,
delivered the opinion of the court.
This suit was brought in the circuit court of Harrison county by appellees, mother and father and brothers of Jas. F. Garnett, deceased (who died leaving neither wife, children, nor descendants of children), against appellant, Louisville & Nashville Railroad Company, for damages resulting from the alleged wrongful death of said decedent caused by appellant. Appellees recovered judgment in the sum of twenty thousand dollars from which judgment appellant prosecutes this appeal.
Appellant at the time and in the manner provided by the federal statutes on the subject sought to remove the cause to the federal district court for the southern district of this state, in which district Harrison county is situated. Tlie petition for removal was accompanied by a bond which was approved by the court. The application for removal was based on the ground of diversity of citizenship of the parties in connection with the fact that the amount in dispute, exclusive of interest and costs, exceeded the sum of three thousand dollars. The trial court refused to malee the order of removal, which action is assigned as error. Appellant’s petition for. removal alleged, in addition to the existence of the jurisdictional amount and other formal requisites, that appellant was a Kentucky corporation and a resident and citizen of that state, while the appellees Avere residents and citizens of the state of Alabama.
Appellant contends that in vieAV of the fact that the federal district courts are given jurisdiction of a cause of this character by virtue of section 24 of the Judicial Code (II. S. Comp. St., section 091), it folloAvs that it was re
movable by the defendant from the state court to the proper federal district court under section 28 of the Judicial Code (section 1010). The applicable statutes governing the question are sections 24, 28, and 51 of the Judicial Code. By section 24 the district courts of the United States are given jurisdiction of all causes of a civil nature at law and equity where the matter in controversy exceeds three thousand dollars and is between citizens of different-states. Section 28 provides, among other things, that such suits shall be removable into the district court o'f the United States for the proper district by the defendant or defendants who are nonresidents of the state where the suit is brought. Section 51 (section 1033) provides that no suit shall be brought against any person by original process in any other district than that whereof he is an inhabitant, except where the jurisdiction is founded on diverse citizenship, in which event suit may be brought only in the district of the residence of the plaintiff or defendant. ■
It is argued with great force that section 51 of the Judicial Code is a venue statute and not a statute conferring jurisdiction; that section 24 of said Code confers jurisdiction of causes of this character on the federal district courts, and that by virtue of section 28' of said Code appellant was entitled to, remove this cause to the proper federal district court because said section expressly gives the defendant or defendants who are nonresidents of the state where the suit is brought the right to such a removal. •
On the other hand, appellees contend that under section 51 the federal district court for the southern district of this state,. wherein Harrison county is situated, had no original jurisdiction of this cause because neither the plaintiffs nor the defendant were residents of said district, and therefore the cause was not removable to that court from a state court of that district; that no cause of this character can be removed from a state court to a federal court, unless it could have been brought originally in the federal court to which it is sought to be removed.
We merely state the contentions of the respective parties with reference to this question. The same question was before this court in
Stewart
v.
Cybur Lumber Co.,
111 Miss. 844, 72 So. 276. The court held in that case contrary to the contention of appellant. We are unwilling to overrule that case, especially since it finds support in
Ex parte Wisner, 203
U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264.
The action of the trial court in refusing to direct a verdict in appellant’s favor'is assigned as error. A determination of this question requires a consideration of the case made on behalf of the appellees. The deceased was killed by being run down and struck by one of appellant’s trains, in the corporate limits of the city of Biloxi near appellant’s depot. It occurred in the nighttime. The train was running at a speed of from fifteen to twenty miles an hour. The deceased was walking between appellant’s main line and its passing track along a much frequented path. When the
engine
pulling this train on the main line got within about twenty feet of the deceased, he suddenly stepped nearer the main line track within the danger zone of the approaching engine, but not between the rails, and was struck either by the pilot beam or the cylinder 'of the engine and killed. The evidence shows without conflict that immediately before the deceased stepped within the .sweep of the engine he was walking in a place of safety, and that after he moved into a position of danger it was utterly beyond the power of the engineer to stop the train in time to avoid striking deceased. It is argued on behalf of appellant that the deceased’s death was caused alone by his own fault; that the speed of the train had no proximate causal connection with his death; that if the train had not exceeded the speed limit, still the deceased would have been killed because it would have been impossible to stop it within twenty feet. It should be borne in mind that the deceased was not run over by the engine; that he was not between the rails, but on the outside near the ends of the cross-ties; and that he was killed as the result of being struck by the pilot beam or cylinder of the engine. Can it
be said with certainty that it the train had not exceeded the speed limit the deceased Avould not have been killed? We think not. If it had been moving- at a speed not exceeding six miles an hour when deceased was struck by the engine, certainly the blow would have peen with very much less force than it Avas AAdrile running at a speed of from fifteen to tAventy-five miles an hour; it might have done him little if any, harm. A train running not more than six miles an hour is running very slowly. We think this was a question for the jury.' It was a question about Avhich reasonable minds might differ, therefore the trial court committed no error in refusing to direct a verdict for appellant.
The action of the court in granting the folloAving instruction for appellees is assigned as error:
“The court instructs the jury for the plaintiffs that, if you find for the plaintiffs, the measure of their damages is the present value of the. life expectancy of the deceased. The amount, if you find for the plaintiffs; should be fair and reasonable as the evidence may show, if any, to compensate them for the death of said deceased Garnett, not to exceed the sum of sixty thousand dollars.”
This instruction is criticized on more than one ground, but Ave only deem it necessary to notice one, and that is that it authorized the jury to return a verdict for the present cash value of the amount deceased would have earned during his life expectancy without making any deduction for his living expenses. The present cash value of the annual income of a person during his life expectancy is the discount value at six per cent, per annum, the prevailing noncontract rate of interest, on each installment of such annual income for the period it has to run. His living expenses are not taken into account in arriving at the result. It is argued that measuring deceased’s life expectancy in the manner authorized by said instruction made him more valuable to his family dead than alive, and that is true. This question was considered and passed upon in
New Deemer Mfg. Co.
v. Alexander, 122 Miss. 859,
85 So. 104, and
Hines
v.
Green,
125 Miss. 476, 87 So. 649. It Avas held in those eases that the present cash value of Avhat one Avonld earn during his life expectancy must be diminished to the extent of \Adiat he would have spent in his OAvn mainténance and svfpport had he lived. In the latter case the court in its opinion set out specifically how, under the facts of that case, the measure of damages based on the deceased’s earning capacity and life expectancy should bey arrived at, using this language:
The expectancy of the deceased Avas tAventy-nine and sixty-tAvo hundredths years, and he was a healthy man both in mind and body, and Avas earning five dollars per day. This would amount to one thousand eight hundred and tAventy-five dollars per year. The evidence does not contain any calculation of the expectancy, nor are any tables introduced by Avhich computation may be made according to any standard, recognized mortality tables. But, finding the present value by dividing the total expectancy, if earned, by one plus six per cent., the legal rate of interest, for the average number of years of the expectancy, Avhich in the absence of other proof we will apply in this case, Ave find that the gross net value is approximately twenty-four thousand dollars,
from which must be deducted the expenses that would havwbeen incurred by the deceased on his own account in liviny and supportiny himself dur iny the period of his expectancy,
which would doubtless have amounted to at least fifty dollars per month, and Ave think that the highest verdict that could be upheld on the elements of damage involved in the trial wbuld be sixteen thousand dollars.” (Italics ours.)
We do not understand that this question was passed on in
Miss. Oil Co.
v.
Smith,
95 Miss. 528, 48 So. 735, and
Cumberland Tel. Co.
v.
Anderson,
89 Miss. 732, 41 So. 263. The mind of the court Avas not directed to the question in either of those cases.
If the deceased had lived, the appellees could not have received from him by Avay of donation more of his annual income than was left after paying his own living expenses.
The measure of recovery is the net present cash value of what the deceased would have earned during his life expectancy, and not th& gross amount, which tins instruction authorized the jury to find.
The trial court therefore' erred in giving the instruction in question. Was it such an error as was harmful to the appellant? In order to properly answer this question, it is necessary to state: It was shown that the deceased was twontv-two years of age in March .before his deafly in April, and that his life expectancy was forty-one and eighty-five hundredths years; he was earning a salary of one thousand three hundred dollars a year, and had a half interest in some business, the profit from which was not shown. That the deceased was wounded and died under such circumstances as that he suffered no physical and mental pain. He had neither wife nor children, and lived away from his family, who resided in the state of Alabama, while the deceased resided in this state. The fault of the appellant was (taking appellee’s evidence to be true) exceeding the speed limit, and failing to ring the bell of the engine for the public crossing,'at or near which the deceased was struck. Notwithstanding appellant was derelict in those respects, the deceased, unless he was blind and deaf (and there is no evidence to show that he was either), is bound to have heard the approach of the on-coming train going at a speed of from fifteen to twenty-five miles per hour, and to have seen the headlight of the engine blazing down the track at his side and ahead of him. While thus situated and only about twenty feet ahead of the engine, for some mysterious reason he suddenly moved into the sweep of the engine and was struck down and killed. Under the evidence in this case the verdict is large. The jury in comparing the negligence of the appellant with that of deceased were, under the facts, authorized to charge the deceased, to say the least of it, with very much the larger part of the wrong which caused his death. In the giving of the instruction in question appellant, under the facts of this case, was denied a substantial right.
We find no reversible error arising on the trial of the question of liability.
Reversed and remanded for a new trial on the question of damages alone.
Reversed and remanded.
Holden, J., dissents.