86 Neb. 33 | Neb. | 1910
This action was brought by William L. Crabtree, administrator of the estate of Bessie M. Stevens, deceased, to recover^ damages suffered by the next of kin by reason,
The jury returned a general verdict for the plaintiff in the sum of $1,900. They also returned six special findings, which the defendant claims are inconsistent with the general, verdict, and which Ave will consider later.
1. The first point discussed in defendant’s brief is that the court erred in overruling a motion to direct the jury to return a verdict for the defendant for the reason that the plaintiff had failed to make out or prove any cause of action. It is argued that, by the undisputed evidence, the deceased was guilty of contributory negligence to such extent as to bar a recovery; that she Avas a bright girl who knew the dangers incident to crossing the railroad tracks and was familiar with the locality; that it Avas her duty to look and listen, and that she carelessly Avalked immediately in the Avav of a backing engine after it Avas too late to stop it. It is also said that the defendant was not guilty of any negligence; that according to defendant’s Avitnesses the bell Avas kept constantly ringing, and that the fireman, seeing her standing in a place of safety, had a right to- presume she would avoid the danger. This motion Avas made at the close of plaintiff’s evidence, and reneAved at the close of all the evidence. When first made, the motion was properly overruled. The evidence of plaintiff’s witnesses, if believed, clearly disclosed negligence on the part of the defendant in backing an engine at a. rate of from 12 to 14 miles an hour over a street
2. It is next argued that the court erred in permitting the plaintiff to prove, over the objections of the defendant, the financial condition of plaintiff’s father, and the fact that he had a family consisting of a wife and children, citing the cases of Chicago, R. I. & P. R. Co. v. Hambel, 2 Neb. (Unof.) 607, Chicago, St. P., M. & O. R. Co. v. Lagerkrans, 65 Neb. 566, and Chicago, R. I. & P. R. Co. v. Holmes, 68 Neb. 826. The doctrine of these cases, we think, is inapplicable here. In the Hambel case the railway company sought to show that the value of the estate of the deceased was $50,000. The offer was rejected by the trial court for the reason that it afforded no information as to the pecuniary loss which would result from the death. The Lagerkrans case was an action in behalf of a widow who had married again. The Holmes case was an
In Johnson v. Missouri P. R. Co., 18 Neb. 690, this court said in an opinion by Reese, J.: “But, it is said' that the word ‘pecuniary’ as used in our statute is not construed in a strict sense. The damages are largely prospective, and their determination committed to the discretion of
3. It is next contended that the court erred in refusing to give to the jury instruction No. 8, requested by the defendant. This instruction informed the jury that the testimony of a witness who testified that he did not hear the engine whistle or the bell ring is not entitled to the same weight as one who testified positively that the bell was ringing or the whistle sounded, and that such negative testimony is entitled to but little weight. This court has repeatedly held that instructions which direct the jury as to the weight to be given to testimony of one witness or set of witnesses as distinct from another infringe upon the province of the jury and are erroneous. Wilson v. Gamble, 50 Neb. 426. The writer is not much in sympathy with this viev of the law, but it is too firmly established in this state to warrant a change by mere judicial act.
4. The next complaint is in regard to the giving of instruction 13. This complaint we think is more technical than sound. The petition alleged that it was the duty of the persons running engines over the track, when approaching the crossing, to keep a lookout for persons at the crossing, and to sound the whistle or ring the bell at a sufficient distance to warn any person approaching, and also that it was the duty of the company to keep and maintain a watchman at the crossing to warn persons of the approach of switch engines. It is also alleged that the engine, “without warning of any kind”, ran over the crossing and caused the death of the child. The jury -were instructed that if they found those in control of the engine “did not exercise a lookout ordinarily consistent with their duties in the practical operation of the train, or
5. It is contended that the district court erred in not sustaining defendant’s motion for judgment on the special findings of the jury non obstcmte veredicto. It' is insisted that the general verdict is inconsistent Avith the special findings, and that, since the special findings control, the court should have rendered judgment in its favor on the facts found. The jury found, in substance, that Bessie M. Stevens at the time of the accident Avas of sufficient age, intelligence and experience to know and realize the danger iisually attendant upon crossing railroad tracks; that when she stepped upon the main-line track and before attempting to cross the track next east, if she had looked to the north, there was nothing which would prevent her seeing and knoAving of the approach of the engine in time to have averted the accident; that she knew that engines and cars frequently moved along the tracks in both directions across Ohio street; that she did not look to the north before attempting to cross over the roundhouse track; and
It is next contended that the verdict is excessive. The jury found specially that the father might reasonably have expected to receive from the deceased after she arrived at her majority, had she lived, the sum of $1,900. As has beeu said, it is exceedingly difficult to estimate Avith any degree of precision the amount of damages Avhich Avould accrue to the next of kin by the killing of a minor child. The matter, by the very nature of things, must be left largely to the discretion and good judgment of the jury, taking into consideration all the surrounding circumstances tending to throAV any light upon the amount which _ the father might reasonably be expected to receive from the deceased. If the sum awarded as damages is not clearly excessive and unreasonable, a revieAving court Avill not interfere Avith the verdict.' We are of the opinion that the amount of recovery in this case would not justify the court in setting aside the Aerdict for that reason alone, or even in requiring a remittitur.
6. Misconduct on the part of the counsel for the plaintiff is complained of, in this, that at the close of the argu
Upon the Avhole record, Ave find no prejudicial error, and the judgment of the district court must'be
Affirmed.