Opinion op the Court by
Affirming.
1. The court refused to permit the plaintiff to prove by G. A. Stewart that the deceased passed his bouse on the top of the train five miles from the place of the wreck at 11:50 a. m., and that he got the information over the telephone at 12:5 p. m. that the wreck had occurred. The court also refused to allow Mike Devers to state that he saw the wreck, went to it, and telephoned to Stewart after coming from it at 12:5. This evidence was offered to show the speed of the train in running the five miles in question. But on the former appeal it was held incompetent to show the speed of the train at the time of the accident, as the train would be controlled not by natural forces alone, but by those on it, and the question was not as to the speed of the train a mile or more away, but as to its speed at the point where the ballast had been taken out. The opinion on the former appeal is the law of the case and the admissibility of this evidence cannot be agitated further now.
2. Instruction 4, given by the court, and now complained of, was given on the former trial, and is set out in the opinion delivered on the former appeal. The instruction was then held correct, and although that was an appeal by the defendant, the opinion, for the reasons just stated, is equally binding upon the plaintiff.
3. In his final argument to the jury, the attorney for the defendant among other things said: “Gentlemen of the jury, I want to warn you that things have come to such a pass in this country that if a man gets his finger cut he runs to some lawyer to bring a damage suit. You are farmers and men with employes under you, and, if any injury occurs or an. accident happens to any of them, you may be sued too, or you will be just as liable to be sued, too, and you had better be on your guard in regard to these damage suits.” The plaintiff objected to this, and asked the court to instruct the jury to disregard it. The court responded that he could not control the illustrations used in the argument of the case by coun
4. It is insisted that the verdict for $3,500 is flagrantly against the evidence, the proof being uncontradicted that the defendant was 25 years of age, in good health and was earning at his death $960 a year. It is said that, as he had an expectation of life according to the mortality tables of 32 years, the pecuniary injury to his estate is shown to be $30,720. This court has uniformly held that in eases like this the measure of recovery is such a sum as will reasonably compensate the estate of the deceased for the destruction of his power to earn money; but it does not follow that this is to be computed by simply multiplying the earning power of the deceased at his death ■by his expectancy of life as shown by the life tables.
Judgment affirmed.