57 Ark. 377 | Ark. | 1893
The appellant relies upon four grounds to reverse the judgment, which are as follows :
1. That there is no proof of negligence on its part.
2• That if any negligence is shown, it does not appear to have occasioned the injury.
3. That if the proof showed that the injury was occasioned in part by the defendant’s neglect, the deceased knew of the danger and assumed the risk.
4. That the verdict is excessive.
The following state of case might have been found. from the evidence, and is sufficient to the determination of the three grounds first stated.
The injury was done in switch-yards where the ties lay exposed above the ground, and the spaces between them were unfilled ; at the immediate place of the injury, crooked ties had been put down, some with the bow up and some with it down, their exposure being greater and the track rougher and more dangerous there than elsewhere in the yard ; if the space between the ties had been filled, the danger of making couplings would have been reduced, and in some other similar yards on defendant’s road such spaces were filled. There were about two miles of track in this' yard,- and the deceased, being a brakeman upon a local freight train, had been accustomed to doing a brakeman’s work in passing there for eight months.
Upon this state of case we proceed to announce our conclusions upon the several grounds relied on.
1. The irregular placing of the ties and the failure to fill the intervening’ spaces is shown to have enhanced the danger of the deceased and others in like service when making couplings, and as it was in a much used switch yard, the defendant should have known of its existence and of the increased danger resulting to the brakeman from it; there is no proof that the s'paces might not have been filled and the enhanced danger avoided by the exercise of reasonable care, and as it appeared that such had been done in other of defendant’s yards, we cannot say that there was no proof that defendant was negligent in thus maintaining its track.
2. The deceased went upon the track where the ties were less exposed, and the fact that he passed safely along' until he reached the place of their greatest expos-3 ure, in the absence of any' other apparent cause, warranted the jury in finding that the condition of the track caused him to fall. The circumstances do not tend equally to two conclusions, and the rule announced in Smith v. First National Bank, 99 Mass. 605, does not apply.
3. If the track had been in the same condition where the injury occurred as in other parts of the yard, i*ii i ii . . we think that knowledge ot it should be charg*ed to the deceased; and if he were chargeable with such knowledge, plaintiff could not recover, since deceased is held to have assumed the risk arising from a known dangerous condition that had continued from the time of his employment. But as the injury occurred where the exposure of the ties was greater than in other places, and where the risk was correspondingly increased, we cannot say that the deceased knew of the extra hazard to which he was there exposed, or that he assumed the risk arising from it.
4. The proof as to the damage sustained by the widow and children was that the deceased was twenty-nine years of age; that he earned as a brakeman sixty dollars per month, of which he gave them from forty to forty-five dollars ; and that he had never accumulated anything. In the course of his employment the deceased was much away from his home, and there is nothing' in the proof, or in the character of his employment, to indicate that he was of pecuniary advantage to his family in any other way than contributing money to their support. The evidence discloses no probability that he would have increased his earnings, or contributed from them a larger part than he had theretofore contributed.
Upon this state of case the jury found a verdict for $7500. If it were proper to adopt as a criterion for measuring the damag'es either the sum that, put at interest, would yield periodically a net income equal to the contributions the deceased would have made for a like time; or a sum estimated as the sum of all contributions that he might have been expected to make if he had lived out the term of his expectancy, to be ascertained by multiplying- the amount given annually by the number of years of his expectancy, the verdict would not be excessive. But neither furnishes a correct criterion for estimating' the damage — the former, because it provides for an annual income equal to the annual contributions lost, and in addition vests the fund that yields it; and the latter, for the same, as well as the additional reason, that the award of the jury is of a sum to be paid at once, whereas the sum of the contributions expected would have been paid in installments deferred from month to month through a term of more than thirty-five years, and their present value would therefore be less than their ultimate amount. The highest estimate in the evidence of the amount cpntributed by deceased to the plaintiffs was $540 per annum; and if they receive a sum sufficient to purchase an annuity of that amount for a term of years equal to his expectancy of life, that loss would seem to be entirely compensated. Indeed such present sum would more than compensate the loss of such anticipated contribution, for the former is paid down, and its value is affected by no contingencies ; while the latter is in expectancy only, subject to many contingencies ; and is but equal to the former if the contingencies never arise. According to the Carlisle Tables, estimating money at eight per cent, per annum, $5,692.68 would purchase an annuity of $540 for the term of expectancy of the deceased, and we can see no way that the jury could have arrived at a larger sum without going beyond disclosed probabilities of future advantage and taking into account bare possibilities. This they were not warranted in doing ; on the contrary, bare possibilities should have been disregarded; and the amount of the contributions, calculated upon the basis that they would continue without interruption for the term of his expectancy of life, should have been discounted on account of the contingencies to which they were subject.
We can find in the evidence no basis for a verdict in excess of the sum indicated, and a finding for that sum could be reached only by assuming that no unfavorable contingency would arise. Inasmuch as this is true, we must conclude that the jury reached its verdict either by pursuing some such method as those we have criticised, or because it misconceived the law as to the element of damage or because it labored under the influence of feelings inflamed by the tragic narrative contained in the record. We are clearly of opinion that no other explanation of the damages awarded can be made; and this conviction calls for and demands the exercise of the court’s power of supervision. Texas & St. L. Ry. Co. v. Eddy, 42 Ark. 527.
As the elements of damage in this class of cases are largely indeterminate, and admit of no exact standard of measurement, it is seldom that the court’s duty to review a jury’s award can be made to appear ; but this difficulty does not excuse a performance of the duty whenever it is clearly discerned. In England and America the power has been exercised often, and that, too, where the injury was to the feelings or the sentiments, or the damage consisted of pain and suffering caused by injury to the most delicate organs. Wood’s Mayne on Dam. p. 746 and cases; 3 Suth. on Dam. 259; 3 Sedg. Dam. sec. 1319 et seq; Gilbert v. Berkinshaw, Lofft’s Rep. (Eng. K. B.), 771; Fotheringham v. Adams Exp. Co. 36 Fed. Rep. 252; Burdick v. Weeden, 9 R. I. 139; Wood v. Gunston, Style (Eng.), 466; Worster v. Proprietors of Canal Bridge, 16 Pick. 547; Mo. Pac. Ry. v. Dwyer, 36 Kas. 58; Goetz v. Ambs, 22 Mo. 170; Swartzel v. Dey, 3 Kas. 244; Clapp v. Hudson Riv. R. Co. 19 Barb. 461; Decatur v. Fisher, 53 Ill. 407; Chicago v. Kelly, 69 Ill. 475.
The recovery upon the second cause of action, for the benefit of the estate, was for the pain and suffering of the deceased. His leg' was mangled and his system subjected to a terrible shock, which he survived for twenty-four hours under intense pain and in the anguish of impending dissolution. Without intimating that we would have awarded a sum so large, we cannot say that a verdict for $2500 appears so excessive as to warrant this court in disturbing it. The judgment upon this count is affirmed.
Upon the other count we feel that $4000 would fairly and fully compensate the widow and children for the pecuniary loss that the record shows them to have sustained, since it would purchase an annuity during the term of his expectancy of life in excess of half of his earnings ; if therefore the plaintiff will remit thirty-five hundred dollars of the judgment on that count, it will be af-^ firmed for the balance; if not, it will be reversed, and the cause remanded for a new trial.