delivered the opinion of the court.
Hоlloway, a locomotive engineer, was killed on the Louisville and Nashville Railroad while engaged in the performanсe of his duties. His administrator brought, for the benefit of his widow, an action under the Federal Employers’ Liability Act in a state court of Kentucky and recovered a verdict of $32,900. The judgment entered thereon was reversed by the Court of Appeals (163 Kentuсky, 125); and, at the second trial, a verdict was rendered for $25,000. Judgment was entered on this verdict, and was affirmed with ten per per сent, damage by the Court of Appeals (168 Kentucky, 262). The case comes here under § 237 of the Judicial Code. The errors assigned in this court and now insisted upon are these:
The first assignment: That the Court of Appeals erred in approving the giving of an instruction and the refusal of another
1
by which the trial judge had denied to the com
*527
pany the benefit of the rule declared in
Chesapeake & Ohio Ry. Co.
v.
Kelly,
The third assignment: That the Court of Appeals erred in refusing to reverse the judgment of the trial court on the ground that the damages were excessive, and in holding as part of the loss of benefits the widow might have received and which the jury was entitled to consider “riot only her support and maintenance of $50.00 a mоnth, but in addition thereto, one-half of the savings, which decedent might have accumulated if he had lived out his allotted span” оf life.
First:
The instruction given, though general, was correct. ■It declared that the plaintiff was entitled to recover “such an аmount in damages as will fairly and reasonably com-, pensate” the widow “for the loss of pecuniary benefits she might reasonably have received” but for her husband's death. This ruling did not imply that the verdict should be for the aggregate of the several benefits payable at
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different times, without making any allowance for the fact that the whole amount of the verdict would be рresently paid at one time. The instruction bore rather an impli’cation to the contrary; for the sum was expressly statеd to be that which would “compensate.” The language used was similar to that in which this court has since expressed, in
Chesapeake & Ohio Ry. Co.
v.
Kelly, supra,
p. 489, the measure of damages which should be applied.
1
The cоmpany had, of course, the right to require that this general instruction be supplemented by another calling attention to thе fact that, in estimating what amount would compensate the widow, future benefits must be considered' at their present value. But it did not ask for any such instruction. Instead it erroneously sought to subject the jury’s estimate to two rigid mathematical limitations: ' (1) that money would be worth to the widow six per. cent., the legal rate of interest; (2) that the period during which the future benefits would have continuеd was 28.62 years, — the life expectancy of the husband according to one of several well known actuarial tables. The company was not entitled to have the jury instructed as matter of law either that money was worth that rate, or that the deceased would not in any event have outlived his probable expectancy. See
Chesapeake & Ohio Ry. Co.
v.
Kelly, supra,
pp. 490-492. Nor need we dеtermine. whether the local rule of practice, that if instructions are offered upon any issue respecting which thе jury should be instructed and they ¿re incorrect in form or substance it is the duty of the trial court to prepare or direct the рreparation of a proper instruction upon the point in place of the defective one (see
Chesapeake & Ohio Ry. Co. v. De Atley,
Second:
The third assignment, in so far as it rebates to the refusal of the Court of Appeals to reverse the judgment "on the ground that thе damages are excessive,” is not reviewable here.
Southern Ry. Co.
v.
Bennett,
Affirmed.
Notes
The instruction given was: “The measure of recovery,, if you for the plaintiff, being such an amount in dаmages as will faifly *527 and reasonably compensate the widow of the said John G. Holloway, deceased, for the loss оf pecuniary benefits she might reasonably have received if the deceased had not been killed, not exceеding the amount claimed; to wit: $50,000.00.”
The instruction refused was: "The court instructs the jury that if they shall find for the plaintiff, their verdict cannot, in any еvent, exceed a sum which will yield, at interest at 6%, a sum which will represent the proven pecuniary benefits which Mrs. Holloway rеceived from her husband in his lifetime, and had reasonable expectation of receiving from him if he had not been killed. And thе Court further instructs the jury that the amount so awarded by them should be diminished by such amount as that, by using the interest and a part of the principal sum each year, the principal sum will have been exhausted at the expiration of decedent’s expeсtancy of 28.62 years.”
No other instruction on the measure of damages was given; and none was requested, except an instruction, not now insisted upon,, limiting the recovery specifically to $13,737.60.
“The damages should be equivalent to compensation for the-deprivation of the reasonable expectation of pecuniary benefits that would have resulted from the continued life of the deceased.”