158 P. 183 | Cal. | 1916
Lead Opinion
Action to recover damages for the alleged negligent killing of plaintiff's intestate. The defendants are *728 railway corporations, the one owning and the other operating under lease a line of steam railway running through the city of Bakersfield. A train of said line ran into a buggy which the decedent, Samuel Dickinson, was driving, and Dickinson was instantly killed.
Judgment went in favor of the plaintiff for $10,230. From this judgment, and from an order denying their motion for a new trial, the defendants appeal.
There is no room to doubt that the evidence warranted the jury in finding that there had been negligence in the operation of the train. The appellants contend, however, that the decedent was himself guilty of contributory negligence, and that for this reason their motion for a nonsuit should have been granted.
Chester Avenue, the street upon which Samuel Dickinson was driving, runs north and south in the city of Bakersfield. It is intersected at right angles by Thirty-third Street. The railway track runs in an easterly and westerly direction and crosses Chester Avenue at Thirty-third Street. The trains coming over the track toward Bakersfield approach from the west. At Chester Avenue there are three tracks; a main line and two sidings. The main line is the most southerly, and it was upon this track that the train which struck Dickinson was running. Dickinson was coming along Chester Avenue from the north. The accident occurred in the daytime. The appellants rely upon the rule, well established by many decisions of this court, that the track of a steam railway is in itself "a sign of danger, and one intending to cross must avail himself of every opportunity to look and listen for approaching trains." (Herbert v.Southern Pacific Co.,
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One of the grounds upon which reversal is sought is that the damages awarded are excessive. In addition to the recovery sought on account of the death of Samuel Dickinson, the plaintiff alleged in his complaint that he had suffered a loss of $230 through destruction of the horse, the harness, and the buggy. The verdict was for $10,230. Plainly, ten thousand dollars of this sum was awarded for the death of plaintiff's intestate.
It appeared in the evidence that at the time of the accident Samuel Dickinson was of the age of seventy-eight years and nine months. He was survived by a wife, two sons, two daughters, and eight grandchildren. One of the grandchildren was living with Samuel Dickinson and his wife. *730 Dickinson's occupation was that of a farmer. The only evidence of his earnings in that calling was that of the plaintiff, his son, who testified that the income of the decedent from his farm was one thousand dollars a year, and that the rental value of a place like that which he occupied would be about three hundred dollars a year. This left a return, from his labor and personal efforts, of seven hundred dollars per year, but this, as the witness testified, did not take into account any deduction for living expenses. The widow testified that her husband had been in good health and able to do a good day's work, that her life with him was pleasant, his habits good, and his companionship pleasant and agreeable.
There was no evidence offered to show the expectancy of life of a man of Dickinson's age. The courts may, however, take judicial notice of the mortality tables in common use. (Gordon v. Tweedy,
This being the showing, the award of ten thousand dollars was palpably in excess of any sum which the jury was authorized to find as the damage resulting to the heirs of Samuel Dickinson by reason of his death.
The action is based on section
In such cases the jury may consider the relations which existed between the heirs and the deceased during the lifetime of the latter (Beeson v. Green Mountain etc. Min. Co.,
It is not possible to measure in exact terms of money the loss which a surviving husband, wife, or child may have sustained through being deprived of the comfort and society of the deceased spouse or parent. For this reason, some play is allowed to the discretion of the jury by the provision of section
Here, as we have seen, the deceased had a probable expectancy of less than five years of life. His earnings, assuming that they would all have been applied for the benefit of his family, would have amounted to less than three thousand five hundred dollars, during the probable remaining span of his years. The verdict for ten thousand dollars, can, therefore, be sustained only upon the theory that his life, apart from any contributions he might make from his earnings, had apecuniary value of more than six thousand five hundred dollars to his widow and heirs. There is no evidence to justify such a conclusion. Eliminating, as we must, any consideration of the grief and mental suffering occasioned to the survivors by the death, it is impossible to conceive how the loss of the comfort, society, and protection of the deceased could have had a money value of anything like the amount awarded by the jury. Verdicts have frequently been set aside where the disproportion between the loss proven and the amount awarded was not so great as that which appears here. (Atlanta W. P. R. R. Co. v.Newton,
We do not think it necessary to discuss any of the other questions argued in the briefs.
The judgment and the order denying a new trial are reversed.
Concurrence Opinion
Hearing in Bank denied. *733