60 Ark. 550 | Ark. | 1895
This suit was brought by the administratrix for herself, as the widow, and her children, as the next of kin, to recover damages for the killing of Frank Sweet. The complaint in substance charged that, “by reason of the careless and negligent conduct of the defendant railway company in the care and maintenance of its track, and the proper and careful management of its train,” one of its cars, upon which Frank Sweet was a passenger, was derailed, and he was run over, and killed.
The answer admitted that Sweet was a passenger, and that he was killed, but denied negligence, and charged Sweet with contributory negligence. Damages were laid at twenty-five thousand dollars. The judgment was for ten thousand dollars. The company appeals, and asks to reverse, for- the following reasons, to-wit: (1) The court erred in forcing defendant to a trial when the mandate of this case has not been returned, or filed in the Desha circuit court within a reasonable time before the convening of that court, and for the further reason that no notice of the filing of said mandate, reasonable or otherwise, had been served upon defendant, as by law required. (2) Because the court erred in permitting the testimony of Roan Sykes to be read to the jury. (3) Because the court erred in permitting witness Atkinson to give incompetent testimony in evidence to the jury. (4) Because the court erred in permitting the jury to carry with them into the jury box the verdict rendered in the former trial, all of which was to the prejudice and injury of this defendant. (5) Because the court erred in giving to the jury instructions 3, 4, and 5, as asked by plaintiff. (6) Because the court erred in refusing to give instruction 10, as asked by defendant. (7) Because the verdict is contrary to law. (8) Because it is contrary to the evidence. (9) Because the verdict is excessive, and is the result of prejudice and passion, and is not sustained by the evidence.
3. The third assignment has been abandoned.
4. This court has ruled adversely to the contention of appellant on the fourth assignment in St. Louis etc. Ry. v. Higgins, 53 Ark. 458.
Objection is urged also to so much of prayer number four, given on motion of the plaintiff, as told the jury that, “in fixing the amount of damages, they will take into consideration deceased’s character and business qualifications, his capacity for earning money, and the value, if any, of his instructions and training to his children.”
The rule includes “character, business qualifications'and capacity for earning money.” It would be a travesty upon justice and a reproach to the law if the sobriety, industry, honesty and ability of deceased — the constituents of character, and the very things which determine a man’s business qualifications — were not permitted to be considered by the jury. Otherwise our constitution and statutes, making railway companies responsible for all damages to persons, and giving to the widow and next of kin the right to fair and just compensation (Const. art. 17, sec. 12; Sand. & H. Dig. secs. 6349, 5911-12), would be but a mockery. If these elements were excluded from the computation for damages, nothing would be left to consider that makes life of any value from a pecuniary standpoint.
But it was in evidence that the deceased, although usually away from home, returned for a short stay after six weeks to three months’ absence. This, in connection with the proof of his character, certainly made that part of the instruction quoted above proper.
6. There is nothing in the sixth, seventh and eighth assignments.
Let the judgment be affirmed.