185 Ky. 169 | Ky. Ct. App. | 1919
Opinion of the Court by
Affirming.
Florence Becker was killed when on February 12, 1917, after dark, tbe street car in which, she was a passenger, was struck by a locomotive of the Southern Railway in Kentucky, being operated upon the tracks of the Kentucky & Indiana Terminal Railroad Company, at the street crossing at Twenty-ninth street and Broadway in the city of Louisville, Kentucky. In this suit her administrator recovered of Southern Railway Company and Kentucky & Indiana Terminal Railroad Company jointly sixteen thousand ($16,000.00) dollars for the negligent destruction of her life; the street railway company having been exonerated of blame by the jury, of which no complaint is made. This appeal is prosecuted by the two railroad companies from the judgment against them and the grounds urged for reversal are (1) that the verdict is excessive, (2) that it is not sustained by sufficient evidence, and (3) misconduct of plaintiff’s counsel in argument to the jury.
As the two latter grounds are urged only in support of the first, it being admitted there was sufficient evidence to warrant a verdict for plaintiff, we will first dispose of the second and third grounds:
1. Sufficiency of the evidence to support the verdict:
The terminal railroad company owned the tracks and at this street crossing maintained gates and a watchman to operate them from a nearby tower. The gates were not
“But counsel for appellant further insists that appellant was not entitled to recover compensation for any permanent reduction in her power to earn money, as there was no evidence of her earning capacity. In Fisher v. Jansen, 128 Ill. 549, 21 N. E. 598, the rule is thus stated: ‘A party personally injured from negligence may recover of the defendant damages for his inability to labor or transact business in the future, without any evidence of his success in business prior to his injury, or the extent of his earnings. Direct proof of any specific pecuniary loss is not indispensable to a recovery.’ In Mason v. Paducah St. Ry. Company, 110 Ky. 680, 23 Ky. Law Rep. 46, 62 S. W. 496, this court said: ‘The court also allowed for loss of capacity to perform the kind of labor for which he was fitted. This was error. It is not for the court or jury to undertake to determine the kind of labor for which he was or might become fitted.’ In South Covington & Cincinnati Ry. Co. v. Bolt, 59 S. W. 26, 22 Ky. Law Rep. 906, this court laid down the following rule: ‘Under the laws of this state she was entitled to earn wages, and, if she was deprived of her ability to .do so by the negligence of the appellant, she is entitled to recover a fair equivalent in money. . . . Our opinion is that, if a married woman is injured by the negligent act of another, she is entitled to maintain an action for damages, and the same criterion of damages exists as to her as to a man or a single woman. ’ Furthermore, in the case of a permanent injury to an infant, his recovery for permanent reduction in power to earn money, in a suit by his next friend, is limited to the time after he arrives at his majority. It is manifest, therefore, that it would be impossible to furnish any direct evidence of his earning capacity at that time. If, then, such evidence were a prerequisite to a recovery, there could be no recovery, for any statement as to the future earning capacity of an infant would 'be mere speculation, and not evidence. Of course, evidence of earning capacity is always proper, but we do not think the failure to offer such evidence is fatal to a recovery. Appellee showed that prior to the accident she was in good health, and had done the cook*173 ing, washing, ironing and general housework for a large family. After that time she was. unahle to perform any of those duties. It would have been difficult either to allege or prove the value of such services in dollars and cents. She had the right, however, to earn money. Her power to do so was impaired. To what extent was a question for the jury, to be determined by the application of their common knowledge and experience to all the facts and circumstances of the case.”
To the same effect are City of Louisville v. Tompkins, 122 S. W. 176; C. & O. Ry. Co. v. Banks’ Admr., supra.
2. The argument of plaintiff’s counsel to the jury of which complaint is made is: “This lady (referring to decedent) had an expectancy of about thirty-one years. Suppose she could earn ten dollars a week. That would be five hundred and twenty dollars a year. Multiply that by thirty-one and it makes a little over sixteen thousand dollars as the loss of her estate by reason of her death.’.’ It is true, of course, counsel must confine their arguments to the jury to the evidence, but this does not mean that they may not make calculations and deductions to illustrate the result of an application of the facts as proven to the court’s instructions and the law of the case, and thus to assist the jury in making a verdict, for such is the province and should be the purpose of every argument to a jury. Hence this argument was unwarranted only if it contained statement of fact unwarranted by the testimony, since courts cannot, of course, reverse a judgment because of an unsound conclusion of an advocate. The complained of argument contains no unwarranted statement of fact unless it may be found in “suppose she could earn ten dollars a week,” but this is clearly not a statement of fact and is on its face at most merely a suggestion of counsel addressed to the “common knowledge or experience” .of the jury, upon which alone, as we have heretofore seen, they had to rely for a basis for a verdict, since they could not well make a verdict except by some process of calculation based upon some earning capacity by the .week, month, or year, of which there was no direct though ample circumstantial evidence. The statement was the same in effect as if counsel had said: “If from your common knowledge and experience, as applied to '.the proven facts and circumstances, you determine upon ten dollars a week as the
3. The one question really involved upon this appeal is whether or not under all the facts and circumstances a verdict of sixteen thousand dollars addresses itself to the mind of the court at first blush as being so flagrantly against the evidence as to have been induced by passion or prejudice, and this it does not do because the negligent act, for which appellants confess liability, that destroyed the earning capacity of decedent was of such a character as proved conclusively a wanton disregard of human life. If, as the engineer on the locomotive testified, the headlights upon his engine were burning and he gave the customary signals of its approach to the street crossing, then the watchman in the tower was guilty of the grossest neglect in failing to notice the approach of the train and to lower the safety gates at the street crossing at this hour, just after dark, when street cars, loaded with passengers, were passing, or if, upon the other hand, vthe watchman was on the lookout as he testified and did
Wherefore, the judgment is affirmed.