123 S.E. 473 | N.C. | 1924
The intestate, an engineer in employment of defendant company, and engaged at the time in interstate commerce, was fatally injured and shortly thereafter died from an explosion of his engine near Youngsville, N.C. on 26 November, 1921, the negligence imputed being a defective engine and appliances, as well as defective tender and water tank and improper and inadequate water supply, etc. There was denial of liability by defendant company, plea of contributory negligence, assumption of risk, etc. On issues submitted, the jury rendered the following verdict: *77
1. Was the plaintiff's intestate, Herbert W. Gerow, injured and killed by the negligence of the defendant, as alleged in the complaint? Ans. Yes.
2. Did a violation of a Federal statute enacted for the safety of employees contribute to the injury and death of the plaintiff's intestate, Herbert W. Gerow? Ans. No.
3. Did the plaintiff's intestate, Herbert W. Gerow, by his own negligence, contribute to his injury and death, as alleged in the defendant's answer? Ans. Yes.
4. Did the plaintiff's intestate, Herbert W. Gerow, assume the risk of injury and death, as alleged in the defendant's answer? Ans. No.
5. What amount of damages, if any, is the plaintiff entitled to recover of the defendant? Ans. $25,000.
Judgment on the verdict for plaintiff, and defendant excepted and appealed.
Defendant objects to the validity of the recovery had against it, first, because the verdict on the second issue having been found in the company's favor, the defendant is thereby exonerated or, in any event, there is such inconsistency in the verdict that no judgment thereon can be properly entered, but we do not so interpret the record. It is the accepted principle with us that a verdict when ambiguous may at times be construed and allowed significance by reference to the pleadings, the evidence and the charge of the court, Donnell v. Greensboro,
"As a basis on which to enable the jury to make their estimate, you should consider the age of the deceased, his prospects in life, his character and his industry and skill, and the ability he had to make money, and the business in which he was employed, the end being to enable the jury to find the net income which might be reasonably expected in arriving at the present net pecuniary worth of the deceased to his family." In this instruction the court, in substance, and almost in terms, lays down the rule of assessing the damages as it prevails under *79
our State law — the present net pecuniary value of the deceased's life; but under the Federal statute, as construed by the established decisions interpreting the same and controlling on the facts of the record, the rule is different and is restricted to the pecuniary benefits to the designated persons to be reasonably expected from the continued life of the deceased. Chesapeake and Ohio R. R. Co. v. Kelly, Admr.,
For the errors indicated, we are of opinion that there should be a new trial of the cause; and it is so ordered.
New trial. *80