Mobile & Ohio Railroad v. Watly

69 Miss. 145 | Miss. | 1891

Campbell, C. J.,

delivered the opinion of the court.

The evidence presents such a clear case of contributory negligence on the part of the plaintiff as to preclude recovery by him for any mere negligence of the defendant, and consideration of that should have been entirely excluded by the court, which should have instructed the jury to find for the defendant, unless it appeared that its servants in charge of the train, after seeing the children in a perilous situation, failed to exert themselves, as they should have done under the circumstances, to avert injury to them. That is the only debatable question in the case, and it was to try that by a jury that the case was remanded on the former appeal. The first instruction for the plaintiff is erroneous, in embracing the question of negligence by the servants of the defendant, and blending it with the real and only question to be tried, as stated above, and in prescribing too stringent a rule, by saying that failure of the servants of the defendant to “ do every thing in their power to prevent injury ” to the child, made the. defendant liable. Undoubtedly, when the danger to the child was discovered, all reasonable effort should have been made to avert it. It is for the jury to say whether all was done that might and should have been done under the circumstances then existing, as presenting themselves to the men in charge of the train. It is not a question of law, but of fact. The law has no rule on the subject, except that all should be done under such circumstances which the case requires, and it is committed to the jury to determine as to that, from a consideration of all the circumstances in evidence.

The third instruction is wrong, in so far as it authorizes the jury to consider the loss by the father of the “ society” of his child, and “the comfort the father might take in rearing him and bringing him up to manhood,” as elements of damages he may recover. Compensation for the injury is to be measured by the value of the pecuniary interest of the father in his child. He is to he compensated for the pecuniary loss sustained, and not otherwise. It is a question of dollars enough to pay for the loss the father has sustained by the death of his child, on the theory of his right to his services during his minority.

Reversed and remanded for a new trial.