[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 704
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 705
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 706 Affirming.
This is an action to recover damages for personal injuries resulting ultimately in the death of plaintiff's intestate, Henry C. Jolly, an engine hostler, who was scalded by escaping steam released as the result of collision between two locomotives. Two grounds of action were asserted, one for the death and the other for the conscious suffering of the injured man. The action was predicated upon the Employers' Liability Act of Congress of April 22, 1908 (45 USCA, secs. 51-58), as amended April 5, 1910 (45 USCA, sec. 59). The amendment provided for the survival of the cause of action of the injured employee, when death from the injury was not instantaneous. The plaintiff recovered a verdict upon each cause of action, and the trial court refused a request of the railroad company for a new trial. It appeals, insisting (1) that the case did not come within the purview of the Federal Employers' Liability Act because the intestate was not engaged in interstate commerce *Page 707 at the time of his injury; (2) that the decedent was guilty of contributory negligence as a matter of law, and that the trial court should have so advised the jury; (3) that the damages allowed are palpably excessive; (4) that the court abused its discretion permitting the case to be reopened for the introduction of further evidence after an argument had been addressed to the jury; and (5) that the instructions were erroneous in directing the jury to apportion its verdict among the several dependents according to their respective pecuniary losses and in defining contributory negligence under the federal act. These contentions will be considered and determined in the order stated.
1. There was evidence tending to show that Jolly and his helper had taken a passenger train to Cincinnati, Ohio, and had returned to the roundhouse in Covington, Ky., for further orders; that the assistant foreman at the roundhouse had received an order to provide an engine for a 1:45 a. m. extra job; that the assistant foreman had been told by the foreman to use engine No. 923 then at the water tank for that purpose; that the assistant foreman had ordered Jolly to prepare engine No. 923 for that service; that Jolly proceeded without his helper to move the engine from the water tank to the coal bins for the purpose of coaling it, after which it was to be placed by him on the ready track for the train crew to take charge of for pulling the extra cut of cars; that before reaching the coal bin the accident occurred in which the engine was disabled, and Jolly injured. The locomotive was under a full head of steam when taken by Jolly, and a single coaling would have served for several hours. There was evidence also tending to show that only interstate transfer cars were handled in this yard between the hours of 12:00 a. m. and 6:00 a. m. and that train crews were not called during that period for local work, but only for interstate work; that the "1:45 extra job" to which engine No. 923 had been assigned was a string of cars to be delivered in Cincinnati, Ohio, to connecting carriers and was so delivered shortly after the accident. The question is whether Jolly's work in moving and preparing the engine as ordered was employment in interstate commerce, even though the interstate cars had not yet been connected to the engine. The test of employment in interstate commerce is whether the employee at the time of the injury is engaged in interstate transportation, or in work so closely related to it *Page 708
as to be practically a part of it. Each case must be determined on its own peculiar facts, and no formula can be found "invariable by circumstances or free from confusion by them in application." Industrial Accident Com. v. Davis, Agent,
Illuminating instances found in the reported cases illustrate the application of the principle. In Pedersen *Page 709
v. Delaware, L. W. R. Co.,
In Walsh v. New York, N.H. H. R. Co.,
In Philadelphia, B. W. R. Co. v. Smith,
In Chicago, B. Q. R. Co. v. Harrington,
"The question remains whether he was performing an act so directly and immediately connected with his previous act of placing the interstate car in the 'F. D. yard' as to be a part of it or a necessary incident thereto. (Citing cases.) And this depends upon whether the series of acts *Page 713 that he had last performed was properly to be regarded as a succession of separate tasks or as a single and indivisible task. It turns upon no interpretation of the act of Congress, but involves simply an appreciation of the testimony and admissible inferences therefrom in order to determine whether there was a question to be submitted to the jury as to the fact of employment in interstate commerce. The state courts held there was no such question, and we cannot say that in so concluding they committed manifest error. It results that, in the proper exercise of the jurisdiction of this court in cases of this character, the decision ought not to be disturbed."
The circumstance that the engine might be intercepted before reaching the interstate cars, or that the train crew on inspection might reject it or require further preparation, or that the actual preparation of the engine required several acts in addition to coaling, does not alter its character as an instrument of the interstate commerce to which it had been definitely assigned. Such duties constituted an indivisible task, although to be performed in a series, and all related immediately to the movement of the interstate cars for which ultimate purpose the engine was moving when the accident happened. This view is fully fortified by the authorities already cited. The fact that an interstate trip had just been completed by Jolly and his helper, and the further fact that engine No. 923 had been recently in the roundhouse for repairs, which had been finished, were alike insignificant in fixing the character of Jolly's work at the time of the injury. Both incidents were closed (Ill. Cent. R. Co. v. Behrens,
We think the evidence justified the court in finding that the work in which Jolly was engaged when hurt was essentially a part of the interstate commerce which the carrier was conducting. An opposite conclusion is wholly insupportable. Appellant did not ask to have the question submitted to the jury, but demanded a peremptory instruction in its favor upon the ground that there was no tendency of the testimony to show that the injured man was engaged in interstate commerce. Clearly no error was committed by the court in refusing that request. Louisville N. R. Co. v. Parker's Adm'r,
2. It is next urged that Jolly was guilty of contributory negligence, and that the trial court should have declared the legal effect of that fact in the instructions to the jury. Louisville N. R. Co. v. Heinig's Adm'x,
The question of contributory negligence was submitted to the jury by instructions presently to be discussed when we come to consider the complaints of appellant upon that score. It is sufficient to say that the evidence adduced upon that subject was so conflicting in character and effect as to justify the court in leaving it to the jury.
3. It is insisted that excessive damages were allowed by the jury. Henry C. Jolly was an engine hostler employed by the carrier in Covington, Ky. He was 31 years of age and was survived by his wife, Mamie F. Jolly, who was 26 years of age, and by three children, James Lee, age 8 years, Hazel Elizabeth, age 6 years, and Raymond Edward, age 5 months. Jolly was severely scalded by escaping steam caused by the breaking of a pipe in his engine cab when another locomotive collided with the one Jolly was operating. He survived four days and suffered intensely as a result of the injuries. His wife and children were wholly dependent upon him for support. He had earned in his employment with the railroad company, during the year 1927, the sum of $2,518.27. The jury by its verdict assessed the damages for conscious pain and suffering at $5,000, and, for the death of Jolly, at $28,000, apportioned as follows: To the widow $10,000, to the oldest child $4,000, to the second child $6,000, and to the youngest child $8,000. Jolly had worked for the railroad company several years, and his net savings from his earnings amounted to about $2,600, which he had invested in a home for himself and family. He was a sober, saving, industrious man, devoted to his family, and in the enjoyment of good health. It is not contended that the amount allowed the widow was excessive as to her, or that the pecuniary benefits reasonably to be expected by her from a continuation of the life of her husband, reduced to their present value, were not *Page 717
fairly worth that amount of money. Nor is it contended that the amounts allowed the children were excessive as to either of them. The insistence is that the aggregate of the allowances was too great. Plainly, when the correct measure of damages has been submitted to the jury, and it has made an award within the evidence which is not excessive as to either of the beneficiaries or as a whole, the matter is concluded by the verdict. If the aggregate of the damage found is within the reasonable range of the purpose and power of the employee to provide pecuniary benefits for his dependents, it cannot be said to be excessive. There is no mathematical rule for the measurement of damages, but the matter must be left to the jury to fix the amounts authorized by the evidence in the light of the decisions of the Supreme Court delimiting and defining the elements that may enter into it. And under the inflexible rule adopted and applied by this court the verdict of a properly instructed jury will not be interfered with unless it strikes the judicial mind at first blush as being so grossly excessive as to manifest passion and prejudice on the part of the jury where only deliberation and judgment should prevail. Louisville N. R. Co. v. Holloway,
"Where death is instantaneous, the beneficiaries can recover their pecuniary loss and nothing more; but the relationship between them and the deceased *Page 718 is a proper circumstance for consideration in computing the same. The elements which make up the total damage resulting to a minor child from a parent's death may be materially different from those demanding examination where the beneficiary is a spouse or collateral dependent relative; but in every instance the award must be based upon money values, the amount of which can be ascertained only upon a view of the peculiar facts presented. (Citing cases.) In the present case there was testimony concerning the personal qualities of the deceased and the interest which he took in his family. It was proper, therefore, to charge that the jury might take into consideration the care, attention, instruction, training, advice, and guidance which the evidence showed he reasonably might have expected to give his children during their minority, and to include the pecuniary value thereof in the damages assessed."
In the Moser case the court said:
"Chesapeake Ohio R. Co. v. Kelly's Admx.,
241 U.S. 485 ,491 ,36 S. Ct. 630 ,60 L. Ed. 1117 (L. R. A. 1917F 367), and Chesapeake Ohio R. Co. v. Gainey, Admr.,241 U.S. 494 ,36 S. Ct. 633 ,60 L. Ed. 1124 , announce the applicable rule. In the first, we distinctly stated that: 'In computing the damages recoverable for the deprivation of future benefits, the principle of limiting the recovery to compensation requires that adequate allowance be made, according to circumstances, for the earning power of money; in short, that when future payments or other pecuniary benefits are to be anticipated, the verdict should be made up on the basis of their present value only.' The interpretation approved by us has become an integral part of the statute."
The jury in this case was instructed in accordance with the federal statute, as interpreted by the Supreme Court, and no further instruction was requested by the railroad. The probable expectancy of the decedent, his age, health, earning capacity, the earning power of money, and the rate of interest realized on prudent investments, are all matters of evidence and were properly before the jury, affording a basis for the estimation of damages to each of the dependents. But these evidentiary elements were not conclusive upon the jury, *Page 719
and its finding could not be subjected to rigid mathematical limitations. Southern Ry., Carolina Division, v. Bennett,
It should be noted that the damages allowed for conscious pain and suffering endured by the injured man as a result of his injury does not enter into the problem. Such damages are entirely separate and distinct from the loss of pecuniary benefits sustained by the dependent wife and children. St. Louis, etc., R. Co. v. Craft,
"It continues, as before, to provide for two distinct rights of action: one in the injured person for his personal loss and suffering where the injuries are not immediately fatal, and the other in his personal representative for the pecuniary loss sustained by designated relatives where the injuries immediately or ultimately result in death. Without abrogating or curtailing either right, the new section provides in exact words that the right given to the injured person 'shall survive' to his personal representatives 'for the benefit of' the same relatives in whose behalf the other right is given. Brought into the act, by way of amendment, this provision expresses the deliberate will of Congress. Its terms are direct, evidently carefully chosen, and should be given effect accordingly. It does not mean that the injured person's right shall survive to his personal representative and yet be unenforceable by the latter, or that the survival shall be for the benefit of the designated relatives, and yet be of no avail to them. On the contrary, it *Page 721 means that the right existing in the injured person at his death — a right covering his loss and suffering while he lived, but taking no account of his premature death or of what he would have earned or accomplished in the natural span of life — shall survive to his personal representative to the end that it may be enforced and the proceeds paid to the relatives indicated. And when this provision and sec. 1 are read together the conclusion is unavoidable that the personal representative is to recover on behalf of the designated beneficiaries, not only such damages as will compensate them for their own pecuniary loss, but also such damages as will be reasonablly compensatory for the loss and suffering of the injured person while he lived. Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other. One is for the wrong to the injured person, and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries, and is confined to their pecuniary loss through his death. One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong, but a single recovery for a double wrong." Cf. Garrett v. Louisville N. R. Co.,
235 U.S. 308 ,35 S. Ct. 32 ,59 L.Ed. 242.
It is manifest from the nature of such damage that it does not enter into the calculation of the amount of compensation to be awarded the dependents for their distinct loss of pecuniary benefits which is the basis of their rights under the original act.
Tested by the measure of damages defined by the Supreme Court for the guidance of courts and juries, and by the evidence upon which the damages must be ascertained and assessed, the verdict in this case is not excessive as to either beneficiary or as a whole.
4. Criticism is leveled at the action of the trial court in reopening the case for the admission of some additional testimony after an argument for appellant had been addressed to the jury. It then developed that plaintiff, through some oversight, had failed to offer evidence as to the exact amount of Jolly's wages for any period preceding his injury. There was testimony to the effect that he was employed by the railroad company in a gainful *Page 722
pursuit, and that he had in addition to maintaining himself and his family, saved from his earnings a sum sufficient to acquire a home valued at $4,200. It had been entirely paid for from Jolly's savings, except an item of $1,500, which had been borrowed and secured by a lien on the property. It was manifestly important, however, that his customary compensation for his labor should be definitely known. Plaintiff first entered a motion to set aside the swearing of the jury and to continue the case, but that motion was denied. She then requested permission to call a witness on the point, which request was granted over appellant's objection. The additional evidence showed nothing except the actual wages paid to Jolly by his employer during the year 1927. It varied through the months from $165.50, the lowest, to $251.21, the highest for one month, and aggregated $2,518.27 for the year. The monthly average for the year was $209.85. The incident caused no material delay, and the facts brought into the record were known in advance to the defendant. It constituted no surprise and possibly prevented the necessity of another trial of the case. The defendant did not offer countervailing evidence, or ask for time to do so, and refused an opportunity offered by the court to reargue the case to the jury. The whole matter of reopening a case for further testimony rests in the discretion of the trial court. That discretion is a judicial, not an arbitrary one (Sun Ins. Office v. Stegar,
The action taken by the trial court in this instance, apart from any consideration of the circumstances that brought about the situation, was equal to the exigency, did no injustice, and worked no prejudice to the appellant. It is apparent, therefore, that there was no abuse of the discretion reposed in the trial court. *Page 723
5. Complaint is made that the trial court erred in the instructions to the jury in two particulars: First, in directing the jury to apportion the damages among the several beneficiaries according to the amount of loss suffered by each of them in being deprived of pecuniary benefits reasonably to be expected; and, second, in its definitions of contributory negligence.
As to the apportionment of the damages by the verdict, but little need be said. The jury is required to assess the damages separately sustained by each dependent by finding a fair compensation for the loss of pecuniary benefits reasonably to be expected from a continuation of the life of the deceased. It is obvious that the benefits to each dependent may be different in kind, character, and duration. For instance, the youngest child in this case would probably be dependent for more than 20 years, the oldest child for only 13 years, and the other one for 15 years. If an apportionment is not made by the jury, there is no basis to determine the relative allowance to each beneficiary, and the damage to one might be diverted to another dependent. Fogarty v. Northern P. R. Co.,
"The statutory action of an administrator is not for the equal benefit of each of the surviving relatives for whose benefit the suit is brought. Though the judgment may be for a gross amount, the interest of each beneficiary must be measured by his or her individual pecuniary loss. That apportionment is for the jury to return. This will, of course, exclude any recovery in behalf of such as show no pecuniary loss."
This court has approved the practice of allowing the jury to fix the amount due each dependent (Illinois Cent. R. Co. v. Skinner,
In Taylor v. Taylor,
The instructions upon contributory negligence explained the various duties of Henry C. Jolly, failure to perform which would constitute negligence, if such failure contributed to bring about his injury. They further defined contributory negligence as the negligent act of a plaintiff, which, concurring and co-operating with the negligent act of a defendant, is the proximate cause of the injury, and continued in the prescribed form and precise phraseology approved by the Supreme Court in Norfolk W. R. Co. v. Earnest,
Judgment is affirmed. *Page 726