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

151 S.W. 706, 105 Ark. 347, 1912 Ark. LEXIS 463

• Court: Supreme Court of Arkansas
• Decided: November 18, 1912
• Status: Published

Opinion

Wood, J.,

(after stating the facts). The appellant contends that the verdict was excessive. Jacks had an expectancy of forty-four years; his mother an expectancy of 17.41 years, and his father an expectancy of 14.09 years, as shown by the mortuary tables. Young Jacks was earning at the time of his death a salary of $55 per month, and was in line of promotion. He was industrious and intelligent. He contributed the whole of his earnings to his own and his father’s and mother’s support. He had stated that he would “stand by them (his father and mother) as long as he lived;” said they “could depend on him.” At the time of his death his yearly salary, less his expenses for food and clothing, would have been $540. During the expectancy of his mother this income would have amounted to $9,396. That amount reduced to its present value, according to the Carlisle tables, would be $5,365.11.

In Railway Co. v. Robbins, 57 Ark. 377, this court said: “The amount of the contributions, calculated upon the basis that they would continue without interruption for the term of his expectancy of life, should have been discounted on account of the contingencies to which they were subject.” But, while this is true, it is also true that the jury were warranted in taking into consideration the fact that Jacks was in line of promotion, as shown by the evidence, and the reasonable probability that he would have been promoted and his earning power thereby increased.

As was said by us in the recent case of St. Louis, I. M. & S. Ry. Co. v. Brogan, post p. 533, quoting from Railway Co. v. Sweet, 60 Ark. 550: “The jury doubtless weighed all the probabilities of loss from sickness and other various contingencies likely to arise during the course of a man’s life, and balanced these against the probabilities also of an increase of efficiency in money-making power.”

There is nothing in the amount of the verdict to indicate that the jury pursued any improper method in arriving at the same, and there is nothing in the record to warrant us in saying that they were actuated by passion, prejudice or sympathy. Their verdict was responsive to the evidence, and while the verdict, in the absence of pain and suffering, reached the limit perhaps of the amount that should have been allowed under the circumstances, yet we are of the opinion that Jacks’s father and mother were not more than fully compensated for his death. Jacks was a bright, healthy, industrious boy, of good habits and affectionate disposition toward his parents. The proof makes it reasonably certain that he would have continued to contribute his earnings to their support as long as they lived. With the disposition and ability that he possessed, according to the proof, it is reasonably certain that he would have contributed to them, had he lived, during the course of their lives as much as the jury awarded by their verdict.

Appellant contends that the court erred in admitting evidence of the father’s affliction (and inability to obtain work on that account) to go to the jury. We are of the opinion that this evidence was proper. It tended to show that young Jacks’s father was dependent. The court was careful to tell the jury that the affliction of the father was not an element of damages in the case, but was.only for the purpose of showing why his father was unemployed, and therefore needed his son’s assistance. The instruction given on the measure of damages excluded any affliction of the father as an element of damages. Testimony showing the pecuniary circumstances of the next of kin calling for help from those upon whom they are dependent is certainly relevant and proper to be considered. It is relevant to the issue as to whether or not by reason of the injury and death the next of kin have suffered any pecuniary loss. See Cooper v. Railway Co., 11 Am. St. Rep. 482, and cases there cited.

The instructions of the court on the issues of negligence, contributory negligence and assumed risk covered every phase of the evidence and were exceptionally free from error. The charge was in accord with the doctrine on these subjects often announced by this court, and it is unnecessary to discuss them here.

Of the instructions given appellant only criticises No. 7.

* This instruction was based upon the evidence, and was correct.

The court refused several prayers for instructions offered by appellant. † Two, three and ten of these were correct, but they were fully covered by instructions which the court gave. Instruction No. 7 was erroneous. It did not follow as a matter of law that, if Jacks assumed a dangerous and wholly unnecessary position, appellant was not liable; for, although the jury may have found that Jacks at the time of his death was in a dangerous and unnecessary position, it was still a question for them to determine as to whether or not in so doing he assumed the risk or was guilty of contributory negligence.

Finding no error, the judgment is affirmed.

“7. In passing upon the question of contributory negligence on the part of the deceased, and of assumed risk, you must take into consideration his age, experience, intelligence and means of knowledge; and, after considering these matters, if you believe from the evidence that the deceased, on account of his youth or inexperience, did not know or fully appreciate the dangers incident to the act or employment in which he was engaged at the time of the injury complained of, then you can not hold him guilty of contributory negligence, nor can he be held to have assumed the risk.”

Defendant’s requests for instructions Nos. 2, 3, 7 and 10 were as follows:

“2. The court instructs the jury that the burden of proof in this case is upon the plaintiff to establish each and every material allegation of his complaint, and if he fails to discharge this duty, then your verdict should be for the defendant.”

“3. It is alleged in the complaint that the servants of defendant negligently and carelessly, while operating an engine of cars without any kind of warning to plaintiff’s intestate of their approach, caused the said engine and cars to collide with the cars in which plaintiff’s intestate was at work, with such violence that he was thrown from his feet thereby receiving injuries from which he soon after died. Before the plaintiff can recover in this case, the burden is upon him to establish that plaintiff’s intestate was killed at the time and in the way and manner alleged in the complaint.”

“7. If you find from the evidence that the injury and death of plaintiff’s intestate was due to a dangerous position assumed by him, and which was wholly unnecessary in the discharge of his duties connected with his employment, then plaintiff can not recover, and your verdict should be for the defendant.”

“10. The court instructs the jury that the law does not presume negligence from the mere happening of the accident.”