118 Va. 46 | Va. | 1915
delivered the opinion of the court.
This action was brought by the defendant in error, Asa P. Carnahan, against the plaintiff in error, the Chesapeake and Ohio Railway Company, to recover damages for personal injuries imputed to the negligence of the defendant. At the trial there was a verdict and judgment for the plaintiff for $25,000 damages, and to that judgment this writ of error was awarded.
The plaintiff was, and had been for some years prior to his injury, an employee' of the defendant as fireman on both freight and passenger trains, and on the date of his injury, March 7, 1913, was in the line of his duty on one of defend
After delaying plaintiff’s train, west bound, some six or seven minutes at the point where it had been stopped on signal, a signal was given it by Operator Beasley, from the tower or telegraph office, to proceed, meaning that the main track was clear, and the train proceeding ran into the east end of said “cut” of cars that had been left standing on the main track, as stated.
In the collision, the plaintiff was caught, from his knee of his right leg down, between the tank on the tender and the boiler head in the cab of his engine, and remained pinned in that position for forty-five or fifty minutes before he was extri
The declaration contains four counts. The first two counts charge that plaintiff and defendant were engaged in interstate commerce, thus alleging a cause of action under the employers’ liability act of Congress. One of these was based upon the alleged negligence of Operator Beasley, and the other upon the alleged negligence of the train crew of the train standing at Doswell under Conductor - Shisler’s charge. The other two counts were based upon the same grounds of negligence, save that they omitted any allegation as to the parties being engaged in interstate commerce, thus alleging a cause of action under the law of this State. There was a demurrer to the declaration upon the ground that it was improper to combine in one suit a cause of action under the employers’ liability act of Congress and the State law, which demurrer was overruled, and this ruling is made the basis of defendant’s first assignment of error, but in the oral argument of the case before this court the assignment was waived.
The case was tried by a jury of seven, in accordance with the provisions of section 3166 of the Code of 1904. It was regularly summoned under the State laws and consisted of nine veniremen, which, after the plaintiff and defendant had each stricken off one venireman, left the jury of seven, which tried the case. Before the jury, however, had been examined on their voir dire, and before any members of the panel had been stricken off by either party, the defendant challenged the array of jurors and moved the court to quash the venire farias, upon the ground that the jury was not summoned, selected, formed and constituted as required by article I of the amendments to the Constitution of the United States, which is as follows: “In suits at common law, where the value in eontro
The motion to quash the venire was overruled and this ruling is made the basis of the defendant’s second assignment of error here; the contention being that the rights asserted in this suit are Federal rights, created by the Congress of the United States, and can only be tried by the common law jury of twelve, required by the seventh amendment to the Constitution, supra,-since the jury referred to in this amendment is the common law jury of twelve.
This contention is without merit. Section 6 of the employers’ liability act, as amended by the act of April 10, 1910, expressly provides that the Federal courts shall have concurrent jurisdiction with the State courts of cases arising under the act, and -that no case brought in a State court shall be removed to a Federal court. How else is a State court to exercise its jurisdiction in such a case except according to the procedure provided for in its own statues? The statutes of this State mate no provision for a trial in civil cases by a jury of twelve, except for some special reason when a special jury may be summoned under section 3158 of the Code, and the allowance or refusal of a special jury is a matter resting in the sound discretion of the court. A. & D. R. Co. v. Peake, 87 Va. 130, 12 S. E. 348.
Upon reason and authority it is not essential to the enforcement of a right created by a Federal law that provisions of the Federal Constitution regarding the administration of the Federal law be followed. The enforcement of a Federal right as it seems to us from the authorities, does not differ from the enforcement of rights created by other sovereignties than the United States, in that it draws with it the necessity of enforcement in the manner prescribed by the Federal Constitution for the administration of justice.
The relation of the State courts to rights created by the Congress of the United States is very clearly explained in the Federalist, Ro. 82, page 608, as follows:. “I mean not, therefore, to contend that the United States in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the Federal courts, solely, if such a measure should be deemed expedient; but I hold that the State courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am of opinion that in every case in which they were not expressly excluded by the future actions of the national legislature, they will, of course, take cognizance of the cause to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, although the causes of dispute are relative to the laws of the most distant part of
In the second employers’ liability case—Mondou v. N. Y. N. H. & H. Ry. Co.—223 U. S. 1, 32 Supt. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, the court in reviewing the action of the State court of Connecticut in refusing to enforce the act because not in harmony with the policy of that State, said: “Because of some general observations in the opinion of the Supreme Court of Errors, and to the end that the remaining ground of decision advanced therein may be more accurately understood, we deem it well to observe that there is not here involved any' attempt by Congress to enlarge or regulate. the jurisdiction of State courts, or to control or affect their modes of procedure, but only a question of the duty of such a court, when its ordinary jurisdiction, as prescribed by local law, is appropriate to the occasion, and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the act of Congress, and susceptible of adjudication according to the prevailing rules of procedure. We say ‘when its ordinary jurisdiction, as prescribed by local laws, is appropriate to the occasion,’ because we are advised by the decisions of the Supreme Court of Errors that the superior courts of the State are courts of general jurisdiction, are empowered to take cognizance of actions to recover for personal injuries and for death, and are accustomed to exercise that jurisdiction, not only in cases where the right of action arose under the laws of that State, but also in cases where it arose in another State, under its laws, and in circumstances in which the laws of
The court in Chaflin v. Houseman, 93 U. S. (3 Otto.) 130, 137, 23 L. Ed. 833, 838, defines the relation of the State courts to Federal laws as follows: “It is true the sovereignties are distinct, and neither can interfere with the proper jurisdiction of the other, as was so clearly shown by Chief Justice Taney, in the case of Ableman v. Booth, 21 How. (62 U. S.) 506, 16 L. Ed. 169, and hence the State courts have no power to revise the action of the Federal courts, nor the Federal the State, except where the Federal Constitution or laws are involved. But this is no reason why the State courts should not be open for the prosecution of rights growing out of the laws of the Hnited States, to which their jurisdiction is competent, and not denied.”
In that case the opinion by Mr. Justice Bradley reviews and commends the views presented by Alexander Hamilton in Ho. 82 of the Federalist, supra, and this is said: “These views seem to have been shared by the first Congress in drawing up the judiciary act of September 24, 1789, 1 Stat. at L. 73, for, in distributing among the various courts created by that act, there is a constant exercise of the authority to include or exclude the State courts therefrom; and where no direction is given on the subject, it was assumed, in our early judicial history, that the State courts retained their usual jurisdiction concurrently with the Federal courts invested with jurisdiction in like eases.”
As' we read the Constitution of the Hnited States, in the
We deem it necessary to quote from only two of these cases.
In Walker v. Sauvinet, supra, the court speaking of an act of the State of Louisiana, permitting a judge to enter a judgment without a verdict in case a jury failed to agree, said: “This (seventh amendment), as has been many times decided, relates only to trials in the courts of the United States. Edwards v. Elliott, 21 Wall. (U. S.) 557, (22 L. Ed. 484). The States, so far as this amendment is concerned, are left to regulate trials in their own courts in their own way. A trial by jury in suits at common law pending in the State courts is
In Brown v. New Jersey, supra, there was called in question the constitutionality of the law of 3STew Jersey providing for a “struck” jury in felony cases, and the opinion by Mr. Justice Brewer, citing many authorities, said: “The first ten amendments to the Eederal Constitution contain no restrictions on the powers of the State, but were intended to operate solely on the Eederal Government. . . . The State has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualifications that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the Federal Constitution. The State is not tied down by any provision of the Federal Constitution to the practice and procedure which existed at the common law. Subject to the limitations hereinbefore named, it may avail itself of the wisdom gathered by the experience of the century to make such changes as may be necessary.”
It is inconceivable that the Supreme Court in the Second Employers’ Liability Cases, supra, in holding that the right of the State courts of general jurisdiction to enforce a right under this law created an implication of duty to enforce it, intended that this ruling should be restricted to courts of States providing a jury of twelve. Federal rights are recognized and enforced in the State courts, as are any other rights which are the basis of a litigation, whether arising out of State or foreign law. The Constitution of the United States contains no prohibition to the enforcement of those rights in the State courts, in accordance with their established mode of procedure, and the seventh amendment is a limitation on the administration of law in the Federal courts, not a limitation on the conduct of litigation, on whatever rights based, in the State courts.
The next assignment of error calls in question the correctness of the following instruction given for the plaintiff over the objection of the defendant: “The court instructs the jury that if they believe from a preponderance of the evidence that the defendant is liable to the plaintiff in this action, then, in assessing damages against the defendant, they may take into consideration the pain and suffering of the plaintiff, his mental anguish, the bodily injury sustained by him, his pecuniary loss, his loss of power and capacity for work and its effect upon his future, not, however, in excess of $35,000.00, as to them may seem just and fair.”
The objection to this instruction is first directed to the use of the words therein, “its effect upon Ms future,” the contention of the defendant being, in effect, that this language was entirely too broad and allowed the jury to take into considera
To sustain the first objection to the instruction, we would have to reach the conclusion that the jury could have not only taken into consideration matters which were not in evidence, but matters which they were expressly instructed not to consider. The record shows that the trial court was careful to exclude, upon defendant’s objection, all evidence of possibility or probability of plaintiff’s promotion, and of his possible or probable increased earnings, and it also appears in the record that the presiding judge “cautioned counsel when discussing the plaintiff’s damage that there was no evidence in the record of the plaintiff’s prospects of promotion, and orally instructed the jury that they should not take into consideration any probable promotion which might come to the plaintiff or any probable increase in the earning capacity of the plaintiff.”
It is true that this instruction was not in writing, but as there was no evidence in the record of matters remote or- speculative, no evidence of prospects of promotion or increased earnings, however broad the language of the instruction under consideration, this court cannot assume that the jury disregarded the instructions of the trial court and rested their verdict upon matters remote and speculative, and not upon a consideration of the evidence in the case. •
In R. & D. Ry. Co. v. Elliott, 149 U. S. 267, 13 Sup. Ct. 837, 37 L. Ed. 728, cited for the defendant in this case, it was
This court in Richmond & Danville R. Co. v. Norment, 84 Va. 167, 4 S. E. 211, 10 Am. St. Rep. 827, approved an instruction which told the jury they should take into consideration “proper compensation for his (plaintiff’s) being deprived by the said injuries from following such calling or business as he could have followed but for said injuries,” the opinion of the court saying that the instruction was plainly proper and upheld by reason and authority.,
Likewise the court, in Ches. & O. Ry. Co. v. Hoffman, 109 Va. 44, 63 S. E. 432, in an opinion by Keith, P., approved an instruction, “that the amount of damages should compensate the plaintiff for the loss of money which he would probably earn had not the injuries occurred;” provided, of course, that the injuries received were the result of. the negligence of the defendant company.
The instructions here complained of required the jury to take into consideration the pain and suffering of the plaintiff, his mental anguish, the bodily injury sustained by him, his pecuniary loss, his loss of power and capacity for work and its effects upon his future. We do not think that the instruction is susceptible of the construction contended for, that it .permitted the jury to take into consideration “possible future physical effects from the injury such as future suffering which in the absence of evidence as to the probability of such future suffering was improper.” It would be a constrained construction of the language of the instruction, “Its effects upon his
In Norfolk Southern R. Co. v. Tomlinson, 116 Va. 153, 81 S. E. 89, a case of a similar character to this, the court considered an instruction relating to the measure of damages which told, the jury that in assessing damages they might take into consideration “such damages as will naturally, reasonably and probably result to him (the plaintiff) in the future as consequences of his injuries,” without confining them to the evidence before them, and in the opinion by Buchanan, J., it was said: “It would have been better to have told the jury that future damages, like all other damages allowed, must he ascertained from the evidence before them, but when the instruction as a whole is considered, we do not think that the jury could have thought they had the right to fix the future damages hy mere conjecture instead of by the evidence before them.”
So, in the case here, the instruction under consideration, when considered as a whole, especially when considered along with all the other instructions given in the case, the jury could not have, as it seems to us, thought they had the right to fix the future damages of the plaintiff by mere conjecture instead of by the evidence before them. See, also Richmond P. & P. Co. v. Robinson, 100 Va. 394, 41 S. E. 719; Norfolk Ry. Co. v. Spratley, 103 Va. 379, 49 S. E. 502; Daingerfield v. Thompson, 33 Gratt. (74 Va.) 136, 36 Am. Rep. 783.
With respect to the other objection to the instruction, viz: that it mentions the sum of $35,000.00 whereby the jury were misled, we deem it only necessary to say that it is not to be
There was no error in refusing defendant’s instructions “C” and “D,” telling the jury that they should not take into consideration “chances of increased earnings by reason of promotion” and “prospects of increased earnings if he had not been hurt.” We find no evidence in the record that would have justified the giving of those instructions, and where such is the case it is too well settled to require citation of authority that if there is no evidence on the subject matter of an instruction it should not be given; nor was there given an instruction for the plaintiff broad enough to permit the jury to consider these elements of damage, as counsel for defendant contends. Not only so, but the court, during the argument of the case for the plaintiff, cautioned counsel that there was no evidence in the record of the plaintiff’s prospects of promotion and orally instructed the jury that they should not take into consideration any probable promotion which might have come to the plaintiff or any probable increase in the earning capacity of the plaintiff. In these circumstances the defendant could not possibly have been prejudiced by the refusal of its instructions “O” and “D.”
The remaining assignment of error is to the refusal of the court to set aside the verdict and award the defendant a new trial, because contrary to the law and the evidence, and because ■of excessive damages assessed to the plaintiff.
The plaintiff was at the time of his injury thirty-two years old, was in the best of health, a man of unusual physique, who could stand the severest sort of labor and perform the arduous duties of a fireman on an engine as well, and above the average man of his age. He had been in the employ of the defendant as a fireman six and one-half years, both in freight and passen
In view of those facts, this court does not consider that it would be justified in disturbing the verdict of the jury on the ground that the damages assessed to the plaintiff are excessive. See Southern Ry. Co. v. Smith, 107 Va. 553, 59 S. E. 372, and authorities cited; Washington-Virginia Ry. Co. v. Bouknight, 113 Va. 696, 75 S. E. 1032, Ann. Cas. 1913 E. 546, 647; N. Ry. & L. Co. v. Spratley, 103 Va. 379, 49 S. E. 502; C. & O. Ry. Co. v. Swartz, 115 Va. 723, 80 S. E. 568.
Upon the whole case, we are of opinion that there is no error in the judgment of the circuit court, and, therefore, it is affirmed.
A firmed.