111 P. 1080 | Idaho | 1910
Lead Opinion
This action was prosecuted for the recovery of damages for personal injuries received by the plaintiff while working in what is known as the St. Paul pass tunnel, which was being cut through the Bitter Root mountains for the use of the Chicago, Milwaukee & St. Paul Ry. Co. The east end of this tunnel starts a short distance from the town of Taft, in Montana, while the west end of the tunnel is in Idaho. The plaintiff recovered judgment for $15,000 and defendant moved for a new trial and its motion was denied, and it has appealed from the judgment and order denying the motion.
The respondent was employed as a machineman in operating an air drill and was working on the heading. Six drills were used at a time across the face of the tunnel. Each drill had two men, a machineman and a helper. After the holes were drilled they were loaded and fired. It was the custom that after the blasts were fired the shift boss would precede the gang of men to see that the smoke had sufficiently cleared away to begin work, and he was followed by the men. It appears to have been the duty of the shift boss to “sound” the overhanging rocks and inspect the place, and see if it was necessary to “bar down” any loose rock or earth before the men began to work. It was then his custom to call the men and set them to work, telling each one where to work and what to do. Respondent had been in the employ of appellant about eighteen days prior to his injury. The timbering for the heading or upper tunnel work was of a temporary character, and was ordinarily extended as near up to the face of the tunnel as possible in order to prevent rock and earth falling from above and injuring.the men. The timbering overhead was up to within about six or eight feet of the face of the heading at the time of this accident.
The accident occurred in the heading on the morning of June 21, 1908. The plaintiff went on duty at 6:30 A. M. Blasts had been fired some time previous to this, and the loose rock and earth called “muck” had to be shoveled back before the men could set their machines. "When respondent went on duty the shift boss told him to shovel back the rock so that he could set his machine. The work appears to have
A great many errors are assigned, and we will endeavor to deal with them in groups rather than singly. The first seven are directed at the admission and rejection of evidence. There was no error in these rulings of the court. The next group of assigned errors have reference to the giving and refusing instructions. There was no substantial error committed in these respects. Instruction No. 5 given by the court is particularly objected to on account of the following language which it contained: “It is sufficient to say, however, that the law does not under any circumstances exact from the servant-the use of diligence in ascertaining such defects, but charges him with knowledge of such only as are open to his observation; beyond this he has the right to assume without inquiry or investigation that his employer has discharged his duty of furnishing him with a reasonably safe place in which to perform his duties.” This part of the instruction is too broad, in that it tells the jury, “that the law does not under any circumstances exact from the servant the use of diligence in ascertaining such defects.” This is not the law in all cases of damages. It is, however, the law under the facts of this case, and there was consequently no error in the court so
Instruction No. 8 was eminently correct. It deals with the nature of the plaintiff’s duties and of the scope of power and authority delegated by the master to the shift boss. No. 12 advised the jury that the employee “has a right to assume, in the absence of apparent defects, that a place in which he is ordered to work by a shift boss is safe and he is not bound to inspect it for the purpose of discovering a latent defect,” etc. This was correct.
There was no error in instructions 6 and 13. Complaint is made of instruction No. 9, and appellant urges that this instruction in effect told the jury that the defendant would be liable to the plaintiff in any event if it failed to properly timber, brace or support the grounds, regardless of the question of its exercise of due care. Instruction No. 9 is not capable of such a construction. This instruction among other things says: “If you find that there was negligence on the part of the master in failing to provide a safe place in which plaintiff had to work, .... which by a reasonable inspection the defendant could have known was loose and liable to cave or fall, ’ ’ etc., that the defendant will be liable. This instruction specifically limited the liability to negligence on the part of the company in exercising reasonable care and due diligence. .
We find no error in the other instructions given.
The other assignments of error have reference either directly or indirectly to the sufficiency of the evidence to sustain the verdict and judgment, and will be fully covered by a consideration of the single question as to the sufficiency of the evidence in this case to support the judgment.
It is contended by the appellant that plaintiff undertook an extrahazardous task, and that the ordinary risks of such a service were consequently assumed by him. This position is correct to the extent-that he assumed the risk incident to the employment, but he did not assume any additional burden of risk superimposed by reason of the master’s neglect of the duty that rested upon him to have the place inspected and maintained in a reasonably safe condition as a place of the kind in which the employee might work. (Bunker Hill & Sul. M. & C. Co. v. Jones, 130 Fed. 813, 65 C. C. A. 363; Ohio Copper M. Co. v. Hutchings, 172 Fed. 203, 96 C. C. A. 653; Rowden v. Schoenherr-Walton M. Co., 136 Mo. App. 376, 117 S. W. 695.) In the ease of a hazardous work like driving a tunnel, such as the one where respondent was working, an increased risk is assumed and a like increased duty is imposed by law on both the master and the servant proportionate to the dangers of the place — on the master to exercise increased care and diligence in maintaining the place in as safe a condition as the nature of the work will permit, and upon the servant to assume or avoid patent and obvious dangers and those necessarily incident to the work and place in which the work is being prosecuted. (Trihay v. Brooklyn
It is contended by the appellant that if the injury in this case was caused- by any negligent act, it was negligence of a fellow-servant for which the master was not liable. Now, it is a well-established rule of law, which has been adopted in this state, that the liability of the master depends upon the character of the act in the performance of which the injury arises and not upon the grade or rank of the employee or fellow-servant to whom the negligent act is traceable.
In Larsen v. Le Doux, 11 Ida. 49, 81 Pac. 600, this court adopted the following rule with reference to the liability of the master in such cases: “If the act or omission that caused the injury was one pertaining to the duty the master owed to his servant, he is responsible for the manner of its performance without regard to the rank of the servant or employee to whom it is intrusted. But if it is one pertaining to the duty of an operative, the employee performing it is a fellow-servant with his colaborers whatever his rank, for whose neglect the master is not liable. ”
It only remains to determine whether or not the duty of making the place at which respondent was working reasonably safe rested upon the master in this case or was one of the duties of respondent and his fellow-servants — the machinemen and their helpers. The evidence disclosed by the record in this ease tends strongly toward the conclusion that respondent and the other machinemen and their helpers were under the absolute and direct control and supervision of the shift boss, and that they had no discretion either as to what they should do or the manner in which they should do the tasks assigned them. They were told by the shift boss when to go into the heading and begin work after shots had been fired. They were directed to the specific place to set up their machines.
It seems to have been the custom of the shift boss to enter and inspect the roof and walls for the purpose of ascertaining the safety of the place before calling the men to put them to-work. If he found any place where loose rock or earth needed barring down or the roof needed trimming, he directed the men in doing that work before they commenced shoveling muck or setting up their machines or drilling.
The evidence does not show either that an inspection was, or was not made prior to the accident. Respondent testified that it looked safe so far as he could see when he went to work, but appellant does not show that any inspection had been made. The rock and earth which fell on respondent appears to have come from the roof of the tunnel, and the witnesses-say that if the roof had been sounded, that it is reasonably certain that the accident would have been averted. They testify as to the nature of the formation and probability of a sounding having located this danger and enabled the men to bar it down before commencing to muck.
It is contended by appellant that there is no proof of any negligent act or conduct on the part of the master which caused or contributed to the injury sustained. It is true, as contended, that in all such eases negligence must be shown in some manner. (1 Thompson on Negligence, secs. 28, 50, 59; Rysdorp v. Geo. Pankratz Lumber Co., 95 Wis. 622, 70 N. W. 677; Reino v. Montana Min. Land Lev. Co., 38 Mont. 291, 99 Pac. 853; Holt v. Spokane Ry. Co., 4 Ida. 443, 40 Pac. 56.) This may be done by positive testimony of the performance of' a negligent -act by the master or the neglect by him to discharge a positive duty. It may also be shown by the condi
Under the facts of this ease and the circumstances under which the injury' occurred, the nature of the place and; the attendant circumstances as shown by the witnesses, we think there was sufficient evidence before the jury from which they might fairly conclude that the master, who was represented by the shift boss, was negligent in the discharge of his duty in inspecting and examining or failing to inspect the place where respondent was set to work, and in not giving such directions as were necessary in order to have rendered the place safe, and thereby avoided the injury which resulted. (Vanesse v. Catsburg Coal Co., 159 Pa. 403, 28 Atl. 200; Peirce v. Kile, 80 Fed. 865, 26 C. C. A. 201; Cinkovitch v. Thistle Coal Co. (Iowa), 121 N. W. 1036.)
Under such circumstances the servant would not be expected or required to make an inspection of the roof and walls or the condition of the place, but had a right to assume that the shift boss, who was in that case the vice-principal, had examined and inspected the place and found it to be reasonably safe. (Texas & Pac. Ry. Co. v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. ed. 1188; Ross v. Shanley, 185 Ill. 390, 56 N. E. 1105; Illinois Steel Co. v. Schymanowski, 162 Ill. 447, 44 N. E. 876; Choctaw Ry. Co. v. McDade, 191 U. S. 64, 24 Sup. Ct. 24, 48 L. ed. 96; Crist v. Wichita Gas etc. Co., 72 Kan. 135, 83 Pac. 199; Crawford v. Bonners Ferry L. Co., 12 Ida. 686, 87 Pac. 998, 10 Ann. Cas. 1.) Under those circumstances the servant was only bound to take notice of the conditions he saw and those dangers that were patent and obvious. In a recent case — Rowden v. Schoenherr-Walton Min. Co., 136 Mo. App. 376, 117 S. W. 695 — the Missouri court of appeals quoted with approval from Gibson v. Bridge Co., 112 Mo. App. 594, 87 S. W. 3, as follows: “It is not supposed, when given a task to perform, that he (the servant) will, on his own motion, consume his master’s time in making comprehensive inspections to detect dangers. All that is required of him is that he use his senses in the position assigned him,
The evidence was sufficient to justify the jury in returning a verdict for the plaintiff.
This brings us to a consideration of the question as to the excessive character of the verdict rendered in this ease. The plaintiff asked for a judgment for $15,000. The jury returned a verdict for the full amount. Maloney was twenty-nine years old at the time of this accident. He had been engaged for about nine years at similar work on railroad tunnels and mining tunnels in the states of Virginia, West Virginia, Arkansas and California. He testified that his wages during this period of nine years at tunnel work had ranged from three to five dollars per day. He was getting four dollars and ten cents per day for the work in this tunnel
The respondent has also called our attention to certain authorities on practical surgery and the treatment of fractures in which the authors deal with the particular kind of injury the respondent received in this case, namely, a ‘ ‘ Comminuted Pott’s Fracture,” which tends to eversion of the foot. It is said by one of these authorities that about seventy per cent of the cases recover, so that no serious or permanent inconvenience is suffered thereafter, while the remaining thirty per cent become permanently disabled, suffering more or less in some cases, and that there is an average loss of about fifty per cent in earning capacity. So in this case the evidence of the experts 'as to the loss of the earning capacity of respondent resulting from the injury is in substantial harmony with the authorities submitted on the same subject. We are therefore required to deal with the question of damages awarded in this case on the theory that the respondent’s earning capacity has been permanently impaired about fifty per cent. Giving the respondent the most favorable consideration his evidence will justify, as to his previous earning capacity, his greatest average earning capacity would be $1,200 per year. To compensate him for the loss of one-half this income would entitle him to an annual income of $600. The legal rate of interest in this state is seven per cent, and we take it that anyone can obtain that rate or better on money in this country. Seven per cent on $15,000 would bring the respondent an annual income of $1,050. This is manifestly excessive, and disproportionate to the injury received or the resultant loss of earning capacity.
It is conceded that the respondent’s general health is not impaired. Damages in these cases must be awarded on the
The pecuniary and financial loss sustained can be estimated with a reasonable degree of certainty. On the other hand, the amount to be allowed for humiliation, pain and suffering entailed by the injury must be left to the arbitrary judgment of the jury (Lindsay v. O. S. L. Ry., 13 Ida. 477, 90 Pac. 984, 12 L. R. A., N. S., 184; Tarr v. O. S. L. Co., 14 Ida. 204, 125 Am. St. 151, 93 Pac. 957), subject only to correction by the courts for abusive and passionate exercise. (Sloane v. Southern Cal. R. R. Co., 111 Cal. 668, 44 Pac. 320, 32 L. R. A. 193; Watson on Personal Injuries, secs. 311, 314.)
We have made considerable research' in order to ascertain the views of the several courts of this country with reference to the proper amount of damages to be awarded for an injury similar to the one received by respondent. We will briefly call attention to some of the cases.
In Wimber v. Iowa Central Ry. Co., 114 Ia. 551, 87 N. W. 505, a brakeman, thirty-nine years old and in good health, was
In Budge v. Morgan’s La. & Texas R. & S. Co., 108 La. 349, 3 So. 535, 58 L. R. A. 333, a brakeman sustained the loss of a leg, and a verdict and judgment for $12,500 was held excessive and reduced to $6,000. In Chicago & N. W. Ry. Co. v. Jackson, 55 Ill. 492, 8 Am. Rep. 661, a brakeman sustained an injury whereby he lost both legs. A verdict of $18,000 was held excessive, and the judgment was reversed on the ground that it would produce an income three times as large as his earning capacity.
In Nicholds v. Crystal Plate Glass Co., 126 Mo. 55, 28 S. W. 991, the bones of the ankle were broken and the injury was of a permanent nature. A verdict of $8,666 was held excessive and reduced to $5,000. In San Antonio & Ark. Pass Ry. Co. v. Connell, 27 Tex. Civ. App. 533, 66 S. W. 246, a locomotive engineer earning from $135 to $150 a month lost a leg. The jury awarded a verdict of $18,000 and the court reduced it to $16,000. In Cogswell v. West St. etc. Electric Ry. Co., 5 Wash. 46, 31 Pac. 411, a carpenter received- an injury to his knee which prevented him following his regular vocation. The jury returned a verdict for $7,000 and the court reduced it to $5,000.
In Chitty v. St. Louis I. M. & S. Ry. Co., 166 Mo. 435, 65 S. W. 959, plaintiff, who had been at different times engaged in sealing logs and keeping books, received an injury to one of his legs and ankle which kept him in the hospital for nine months and fifteen days, and who was apparently permanently injured, and at the expiration of seven years after the injury, when a second trial took place, was still suffering pain and the wound not entirely healed, was awarded a verdict of $15,000. The supreme court held the verdict excessive, and ordered that it be reduced to $10,000. In the opinion in the case last cited there is a table of cases showing the nature of the injury and the amount of the verdict in a number of similar cases. In
It will be seen from an examination of the foregoing authorities as well as many others that the courts have almost invariably held verdicts of anything like the amount of' this excessive, and have accordingly exercised their power and authority in ordering a modification of the judgment or in granting a new trial on account of prejudice and bias of the jury in rendering such excessive verdicts. In our examination of these various cases dealing with injuries of a similar character to the one under consideration, we find that the average judgments as finally ordered by the appellate courts have been less than $10,000. It is clear that a recovery should not be allowed to the extent of a vindictive or punitive judgment. If the master has been guilty of wanton and criminal negligence, it is the clear and unmistakable duty of the state to deal with him through the criminal laws, and to allow the servant to recover to such an extent only as will leave him as nearly as possible in as good a position as he was before the infliction of the injuries. This verdict is clearly excessive, and we have concluded that it should be reduced to $10,000. This would insure him an annual income of at least $700 from the principal sum. This will fully compensate him for his annual loss of earning capacity and still will give him a fair compensation for the pain and suffering inflicted by the injury.
The judgment will be affirmed to the extent of $10,000 on condition that the respondent file within thirty days after going down of the remittitur a waiver of the excess of $5,000 and an acceptance of the judgment as thus modified. On failure to do so the judgment will be reversed in toto and a new trial granted. Modified and affirmed accordingly, with costs in favor of respondent.
Rehearing
ON REHEARING.
A rebearing was granted in this case, and tbe matter was argued exhaustively orally, and four separate briefs by different counsel have been filed on bebalf of appellants, in which tbe questions of fact involved are discussed and tbe authorities bearing on tbe case have been exbaus-
We will first briefly notice these questions before dealing with the other questions to which less importance has been attached. It is both impracticable and impossible for the court to review and consider the multitude of authorities cited in this case. We may say, however, in the outset, that we have no serious fault to find with either of the propositions above stated for which appellant contends. To say that the master is under the duty of exercising “reasonable care” in order to make a place “reasonably safe” in which his servant is'to work is substantially the same as to say “the master must furnish the servant a- reasonably safe place in which to work. ’ ’ To say that there is any material or substantial difference between the two propositions is only a legal refinement and a theoretical distinction which is not distinguishable by a jury of practical men in drawing the line between duty and negligence. The master must use reasonable care in each instance, and that is true whether he is to furnish a “reasonably safe place ’ ’ in which the servant shall work or the servant himself is employed to make the place in which he shall work. In no event is the master relieved from the exercise of “reasonable care” for the safety and protection of his employee. In the one case, however, the employee may not be able to recover because of his assumption of risk or his contributory negligence, and in another case he may be free from fault himself and the master is liable on account of his failure to exercise reasonable care. In other words, the failure of the master to discharge his legal duty by the exercise of reasonable care
Under the second proposition advanced by counsel for appellant, particular stress is laid upon the following sentence found in the original opinion, which succeeds a statement of the reciprocal duties and liabilities of the master and servant: “The law assumes that when these reciprocal duties have been faithfully discharged no injury of which the law takes cognizance will occur, but the moment an- accident does occur, the presumption arises that either the master or servant has been negligent, or that both have contributed to the injury.” We apprehend that the objection to the foregoing quotation arises either out of a failure to observe it closely or read it in connection with the balance of the opinion. As an abstract proposition, we tMnk there can be no doubt as to its correctness. The presumption which it is stated arises on the happening of an accident does not, in the absence of proof, identify the party guilty of the negligence. It is stated, and we think correctly too, that as an abstract proposition the happening of an accident “of which the law takes cognizance” at once implies an act of negligence on the part of someone. It is not the law anywhere, so far as we are aware, that the mere happening of an accident is of itself proof that the master has been negligent and is liable for the injury and 'damage sustained. The happening of the accident, however, must be proven before there is any occasion for proving negligence on the part of the master. The fact of the accident and injury established, circumstances and physical conditions may be resorted to for the purpose of determining on whom the responsibility for the accident rests and to whom the negligence is imputable. In the original opinion we said:
‘ ‘ The evidence does not show either that an inspection was or was not made prior to the accident. Respondent testified that it looked safe so far as he could see when he went to work, but appellant does not show that any inspection had*760 been made. The rock and earth which fell on respondent appears to have come from the roof of the tunnel, and the witnesses say that if the roof had been sounded, that it is reasonably certain that the accident would have been averted. They testify as to the nature of the formation and probability of a sounding having located this danger and enabled the men to bar it down before commencing to muck. Under the facts of this ease and the circumstances under which the injury occurred, the nature of the place and the attendant circumstances as shown by the witnesses, we think there was sufficient evidence before the jury from which they might fairly conclude that the master who was represented by the shift boss was negligent in the discharge of his duty in inspecting and examining or failing to inspect the place where respondent was set to work, and in not giving such directions as were necessary in order to have rendered the place safe and thereby avoided the injury which resulted.” (See, also, Norman v. Wabash R. Co., 62 Fed. 727, 10 C. C. A. 617; Central Coal & Coke Co. v. Williams, 173 Fed. 337, 97 C. C. A. 597; Haynie v. Tenn. Coal, Iron & R. Co., 175 Fed. 55.)
In this ease the servant was not primarily engaged in making the place safe in which he worked. In this respect the case differs materially from Thurman v. Pittsburg & Montana Copper Co. (Mont.), 108 Pac. 588, on which appellant relies. There the servant was charged with the special duty of making the place safe. Here the servant was under the direction and control of the shift boss. It was his duty when directed by the shift boss to assist in making the place safe. The determination, however, as to what should be done •and when it was necessary to perform an act looking toward the making of the place safe rested with the shift boss, and it was the duty of the shift boss to make the inspection before setting the men to work. ' In this case it does not appear whether an inspection was made or not. The defendant produced no evidence to that effect, and the plaintiff did not know. He did know, however, that subsequent events demonstrated that the place was not safe. He furnished proof of the physical conditions and the attendant circumstances,
Three days prior to the filing of the original opinion in this case, the court of appeals of the state of Kentucky had under consideration a case involving a very similar state of facts in Williams Coal Co. v. Cooper (Ky.), 127 S. W. 1000. The court said in that case:
“It is argued that, if it was the duty of the coal company to keep the room reasonably safe, this duty was performed, as the ‘loader’ whose business it was to examine the roof and put it in a reasonably safe condition performed this service; at any rate, exercised his best judgment in attempting to do so. And it is said that, as the ‘loader’ believed after inspection that the room was reasonably safe, his judgment is conclusive of the question that the master furnished a reasonably safe place. But with this argument we cannot agree. In the opinion of the ‘loader’ the room may have been reasonably safe, but the fact that the roof fell soon after his inspection demonstrates that it was not reasonably safe.It is a question for the jury to say from the evidence whether or not the place was reasonably safe. And in considering this question they had the right to give such weight as they deemed proper to the statement of the inspector. They may or may not believe from it that the master discharged his duty in furnishing a reasonably safe place.”
The same court as late as June 1st of this year again had the same question under consideration in Huddleston’s Admr. v. Straight Creek Coal & Coke Co. (Ky.), 128 S. W. 589, and after considering an argument very much like that made in this case, said:
“We cannot give our approval to- a doctrine like this. The jury have the right to hear and consider, not only the evidence from the mouths of witnesses as to what they did and what was done, but they have -also the right to hear and consider other evidence from witnesses who are qualified to testify as to the physical condition of the place and appliance*762 before, at the time, and immediately after the accident, and the jury may from the facts and circumstances thus 'proven be warranted in concluding that they are entitled to more weight than the personal evidence of the witnesses whose testimony was in contradiction of these facts and circumstances. Let us take this case as an apt illustration. Notwithstanding the uncontradicted evidence of Elswick, the jury might be of the opinion, based upon the evidence of the physical conditions, that, as the roof fell soon after his inspection, he did not make a careful inspection, or, in other ■words, that the master did not exercise ordinary care to put and keep the entry in reasonably safe condition. This was a question for the jury, not the court, and so the court erred in taking the case from the jury.”
The accident in this case occurred in the tunnel on the Montana side of the line between Idaho and Montana. It has been argued on the rehearing that under the statutes and decisions of Montana, a recovery could not be had in this case in Montana, and that it is accordingly the duty of this court to deny the respondent any relief. On the proposition that respondent could not recover in Montana, counsel cite two cases from the supreme court of that state — Cummings v. Reins Copper Co., 40 Mont. 599, 107 Pac. 904, and Osterholm v. Boston & Montana C. C. & S. M. Co., 40 Mont. 508, 107 Pac. 499; and on the general proposition that the respondent is bound by the law of the place where the injury occurred, counsel cite: Baltimore & Ohio S. W. R. Co. v. Reed, 158 Ind. 25, 92 Am. St. 293, 62 N. E. 488, 56 L. R. A. 468; Chicago & E. I. R. Co. v. Rouse, 178 Ill. 132, 52 N. E. 951, 44 L. R. A. 410; Alabama G. S. R. Co. v. Carroll, 97 Ala. 126, 38 Am. St. 163, 11 So. 803, 18 L. R. A. 433; Kansas City Ft. S. & M. R. Co. v. Becker, 67 Ark. 1, 77 Am. St. 78, 53 S. W. 406, 46 L. R. A. 814; Turner v. St. Clair Tunnel Co., 111 Mich. 578, 66 Am. St. 397, 70 N. W. 146, 36 L. R. A. 134; Mexican Nat. R. Co. v. Jackson, 89 Tex. 107, 59 Am. St. 28, 33 S. W. 857, 31 L. R. A. 276. The trouble with the application of the rules announced by these 'authorities is that in the present case the appellant failed to plead and prove in the lower
Counsel for appellant finally insist that, if the judgment must be affirmed in this case, the damages even as reduced by the previous decision are still excessive. In support of this-contention, counsel have cited a number of additional authorities in which the question of the amount of damages to-be awarded and the age and condition of the party injured and his capacity for earning wages are all considered. As they may be useful to counsel in other similar cases, we cite them herein: 13 Cyc., pp. 134, 135; Bosworth v. Standard Oil Co., 92 Hun, 485, 37 N. Y. Supp. 43; Nicholds v. Crystal Plate Glass Co., 126 Mo. 55, 27 S. W. 516, 28 S. W. 991; Cogswell v. West St. & N. E. Electric Ry. Co., 5 Wash. 46, 31 Pac. 411; Florida Ry. & Nav. Co. v. Webster, 25 Fla. 394, 5 So. 714; Kroener v. Chicago, M. & St. P. Ry. Co., 88 Iowa, 16, 55 N. W. 28; Missouri Pac. Ry. Co. v. Dwyer, 36 Kan. 58, 12 Pac. 352; Kennon v. Gilmer, 9 Mont. 108, 22 Pac. 448; Brown v. Southern Pac. R. Co., 7 Utah, 288, 26 Pac. 579 Thompson v. Chicago, St. P. & K. C. Ry. Co., 71 Minn. 89, 73 N. W. 707; Moore v. W. R. Pickering Lumber Co., 105 La. 504, 29 So. 990; Wimber v. Iowa Cent. Ry. Co., 114 Iowa, 551, 87 N. W. 505; Bell v. Globe Lumber Co., 107 La. Ann. 725, 31 So. 994; Budge v. Morgan’s L. & T. R. & S. S. Co., 108 La. 349, 32 So. 535, 58 L. R. A. 333.
Our further examination and consideration of the question as to the amount of damages that should be allowed has failed to convince us that any change should be made from that allowed by the original opinion. We recognize the fact that there is no absolute standard by which damages can be measured in these cases. We are of the opinion, however, that the amount awarded by the jury in this case was excessive, and in view of all the facts and circumstances, and in the light of the decisions from the various states which have considered this subject, we feel that the sum of $10,000 to which the judgment was reduced by the original opinion is fair and as near an approximation to justice in the case as we can reach.
We feel that we should not close the consideration of this case without reverting to one argument that has been made in the briefs on behalf of appellant which does not have to do with the law of the case so much as with the public
After a somewhat laborious and tedious examination of this ease a second time, we feel that the original opinion correctly states the principles of law applicable to the case, and that the conclusion reached on the former hearing should stand as the judgment of the court in this case. The judgment of the trial court will therefore be affirmed to the extent of $10,000, on condition that the respondent file within thirty days after the going down of the remittitur a waiver of the excess of $5,000 and an acceptance of the judgment as thus modified. On failure to do so, the judgment will be reversed in toto and a new trial granted. Modified and affirmed accordingly, with costs in favor of the respondent.