205 P. 796 | Nev. | 1922
Lead Opinion
By the Court,
This action was instituted by the respondent as administrator of the estate of Alonzo Carlton Webb, deceased, to recover damages for the death of deceased, alleged to have been caused by the negligence of the appellant. The action was tried before a jury and verdict rendered for the respondent for the sum of $8,500. From the judgment entered in accordance with the verdict and the order denying a motion for a new trial, this appeal is taken.
The accident in which the deceased sustained the
“The jury is instructed that at the time the decedent, A. C. Webb, sustained the injury described in plaintiff’s complaint, defendant was a common carrier of passengers and as such in the maintenance and inspection of its elevator and elevator shaft and in its operation of said elevator at said time was bound to use the utmost care and diligence for the safety of its passengers therein, and was and is liable for any injury to a passenger occasioned by its slightest negligence, against which human prudence and foresight should have guarded.
“The jury is instructed that a passenger elevator is a dangerous instrumentality unless properly constructed and managed, and that there is no employment where the law demands a higher degree of care and diligence than in the construction and operation of such elevators.
“The jury is instructed that the operator of a passenger elevator is bound to avail himself of such new inventions and improvements known to him, which will*56 contribute materially to the safety of his passengers whenever the ability of such improvements has been thoroughly tested and demonstrated, and their adoption is within his power, so as to be reasonably practicable.
“Applying this rule of law to the case, the jury is further instructed that if it believes from all the evidence in the case that defendant knew, or reasonably should have known, before the alleged injury to Alonzo C. Webb, that the square-edged horizontal projection immediately below each floor level in the elevator shaft, if such condition then existed, should be so beveled as to materially guard the safety of the' feet of passengers therein, and having time and failing so to do, and such failure being the proximate cause of the alleged injury to said A. C. Webb, then, the jury so believing, it should find in favor of plaintiff upon such issue.”
These instructions were not objected to, and they correctly declare the law applicable to the facts established by the testimony. 9 R. C. L. 1237, 1238; Webb on Elevators (2d ed.) pp. 4-7, and cases cited; Treadwell v. Whittier, 80 Cal. 574, 22 Pac. 266, 5 L. R. A. 498, 13 Am. St. Rep. 175. The jury were justified under the instructions of the court in inferring negligence on the part of the appellant, and their verdict cannot be disturbed on this ground.
In Konig v. N. C. O. Ry., 36 Nev. 209, 135 Pac. 151, this court said:
*57 “It is only where the plaintiff’s case conclusively discloses negligence on his part that such disclosure may be taken advantage of by defendant in authorizing the court to advise a verdict for him. If, however, the evidence only tends to- show, or only raises an inference of, contributory negligence, the question should properly go to the jury to be determined like any other question of fact. The mere suspicion of negligence arising from the plaintiff’s case will not warrant the court in taking such action. On the contrary, the inference of negligence on the part of the plaintiff must be so strong as to be unavoidable and conclusive. Where some evidence disclosed during the plaintiff’s case merely tends toward the conclusion of contributory negligence, but lacks that cogency to make it conclusive, then it merely raises a question for the jury and should be submitted to the jury.”
Appellant cites Beidler v. Branshaw, 200 Ill. 425, 65 N. E. 1086, as a case in point favorable to its contentions. This case is somewhat similar to the present case. In this case the injured man’s heel was caught between the floor of the elevator and an iron lintel in the shaft. In the course of his employment during the year prior to the injury, he had worked for a considerable portion of the time loading and unloading materials near the door which opened into the elevator and above which the lintel projected into the shaft. He had passed up and down upon the elevator repeatedly during that time. By reason of these facts it was assumed
Quimby v. Bee Building Co., 87 Neb. 193, 127 N. W. 118, 138 Am. St. Rep. 483, is cited and discussed by appellant. In this case a boy of 12 years of age got his foot caught between the floor of the elevator and a floor landing that projected into the shaft and was injured. A verdict finding the defendant guilty of negligence was affirmed on the ground that it had not properly warned and safeguarded the boy while a passenger in his elevator, regardless of the question of whether or not there was negligence in its construction. It is argued that the language of the decision indicates that if the boy had been a person of mature years, he would have been held guilty of contributory negligence. Be that as it may, the case does not formulate any rule
“Mortality tables consist of summarized statistical information on a matter of general interest. They are, therefore, impartial and disinterested, and are so nearly in the nature of exact science or mathematical demonstration as to be credible and valuable. Consequently the uniform practice of the courts is to receive them in evidence in cases where such evidence is applicable. While they are not conclusive, and are far from satisfactory evidence, they are admitted .from necessity, because they are the best guide obtainable to the establishment of a material but necessarily uncertain fact, the natural duration of the individual life.”
“While the probative effect of mortality tables may be impaired or destroyed, they are not rendered inadmissible by evidence of disease or ill health on the part of the person to whom they are applied, or that he was engaged in a hazardous employment, or that he was not an insurable risk.”
See, also, 17 C. J. 1355, 1356.
In Broz v. Omaha Maternity and General Hospital Assn., 96 Neb. 648, 148 N. W. 575, L. R. A. 1915d, 334, which was an action for damages for death resulting from negligence, on the question of the admissibility of mortality tables where it was conceded that the deceased had been suffering from a mental disorder of such nature that he could never fully recover and his chances of a partial recovery were none too good, the court said:
“Proof that the person whose expectancy of life is under consideration conforms to the standards of health and vigor adopted in compiling mortality tables is not essential to their admissibility. Evidence of disease or of ill health or of hazardous employment may impair or destroy the probative effect of tables of expectancy of life, but does not make them inadmissible.”
The court cites a line of cases in support of the rule announced. In Arkansas Midland R. Co. v. Griffith, 63 Ark. 491, 39 S. W. 550, cited on this point, the court said:
“The question-is whether we can still make the tables of service in making the calculation, notwithstanding it is shown that plaintiff’s condition and health were below the average, and that, in fact, he was not an insurable risk. This is an element of uncertainty that must necessarily be found in the case of one of feeble health and not insurable, in all cases,_ whether we call to our aid the mortality tables or not. When we do so, however, when, by reason of enfeebled physical condition, the standard tables are not strictly applicable on that*62 account, yet they are more or less efficient aids in arriving at an approximation of the truth, and that is the best that can be hoped for after all.”
On the same point, the court, in Deer v. Suckow Co., 60 Ind. App. 277, 110 N. E. 700, said:
“The fact that one is shown to be in poor health does not affect the admissibility of the tables, but goes merely to its force and weight.”
To the same effect is Greer v. Louisville R. R. Co., 94 Ky. 169, 21 S. W. 649, 42 Am. St. Rep. 345. In fact, the consensus of judicial opinion on the subject is that evidence of disease or ill health does not render mortality tables incompetent as evidence tending to show expectancy of life, but goes only to its weight. We are of the opinion that there was no error in the admission of the tables in evidence. It is unnecessary to discuss any of the other objections raised by appellant to the admission or rejection of evidence. We are satisfied that there was no error committed in these respects, at least of a prejudicial nature.
“The objections urged against the fifteenth averment in the complaint, that plaintiff, as administrator of the estate of Wells, ‘hath sustained damages,’ are untenable. They are purely technical, and apply only to the form and not the substance of the averment. The death of Wells did not damage J. V. Peers individually, and there is no claim that it did. The action is not brought by him individually, but in his representative capacity as administrator of the Wells estate. Under the express provisions of the statute, the action must be brought by the representative of the deceased, and he alone is entitled to recover damages, if any, resulting from the death of Wells by the wrongful act of the defendant— not for his own individual benefit, but for the benefit of those to whom the damages recovered are to be distributed as provided for in the second section of the act. The averment in .question follows approved forms in such cases (1 Estee, PI. sec. 1841), and must be construed as having precisely the same meaning as if the words ‘hath sustained damages’ had been left out, and in lieu thereof the words, ‘brings this action to recover from defendant $40,000 damages for the death of the deceased.’ ”
A general allegation of damages is sufficient in an action of this kind. The statute under which this action was prosecuted is in derogation of the common law, at which an action for damages for the death of a person by wrongful act was not maintainable. The first statute to authorize an action of this kind was the English Act of 1841 (9-10 Vict., c. 93), commonly known as Lord Campbell’s Act, and as pointed out by Judge Hawley in Peers v. Nevada Power, Light and Water Co., supra, has served as a model upon which most of the statutes of the various states of the Union have been enacted. In the first case in England in which the point as to a proper averment of damages was raised, it was held that special allegation of damages was unnecessary.
It is interesting to note that Lord Campbell, the author of the act, was chief justice when this decision was rendered. In this country the decided weight of authority sustains the rule that a general allegation of damage is sufficient in an action of this kind. Peers v. Nevada Power, Light and Water Co., supra; Korrady v. Ry. Co., 131 Ind. 261, 29 N. E. 1069; Haug v. Great Northern Ry. Co., 8 N. D. 23, 77 N. W. 97, 42 L. R. A. 664, 73 Am. St. Rep. 727; Peters v. Southern Pacific Co., 160 Cal. 48-67, 116 Pac. 400; 17 C. J. 1292. The allegation in the complaint before us amounts to a general allegation of damages and is in our opinion sufficient. The appellant was sufficiently advised by the complaint as to what it would have to meet on the question of damages. The complaint alleged the death of respondent’s intestate occasioned by the negligence of the appellant, and that he left surviving him a-widow and three children, two of which are minors, and that, by reason of such negligence resulting in the infliction of injury and death upon the intestate, his estate hath suffered damage. Appellant knew, or was presumed to know, that the measure of damages would be based upon the pecuniary loss to the kindred named in the complaint, and could not, therefore, have been misled by the allegation of damages to the estate.
There is nothing in Christensen v. Floriston Pulp and Paper Co., 29 Nev. 552, 92 Pac. 210, cited and discussed by appellant, that is opposed to the views we have expressed. No question of pleading was involved in that case. The language of the court quoted by appellant dealt merely with the measure of damages. The California cases cited are not in point.
The judgment is affirmed.
Rehearing
On Petition for Rehearing
Rehearing denied.