Wallace v. Western N. C. Railroad
10 S.E. 552
N.C.
1889
Check Treatment
Clark, J.:

When this case was here the first time (98 N. C., 494), the evidence being substantially the same as now sent up, the Court held that the-Judge below erred in instructing the jury that there was no evidence of contributory negligence, and that such issue should have been submitted to the jury. When the caseras again before this Court (101 N. C., 454), while it went.off upon another point, the same exceptions to the charge upon the first two issues were made substantially as now, and this Court said: “In respect to other assignments of error, we are of opinion that there was evidence to go to the jury tending to prove that the locomotive was overloaded, and of careless management of it; that the Court could not properly instruct the jury, in the light of all the evidence, that the injury sustained by the plaintiff was the result of a mere accident, nor should it have been said to them that, in view of all the evidence, the plaintiff could not recover, nor that, accepting the plaintiff’s own evidence as true, he was chargeable with contributory negligence.” As the evidence now is almost literally the same, with the addition, by plaintiff, of the.omitted fragment of *450 testimony which then procured the defendant a new trial, we think that this is conclusive of all the points raised by defendant’s assignment of errors applicable to the'first and second issues, except the seventh and eighth assignments.

The statute (Ch. 33, Acts 1887) places the burden of proving contributory negligence upon the defendant. This only affects the remedy and impairs no vested right. It was competent for the Legislature to enact it. It was not error, therefore, to refuse to charge, as asked by defendant, “ in the light of this case the burden of proving contributory negligence is not upon the defendant, but upon the plaintiff to disprove the same.” The defendant can avail himself of anything appearing in plaintiff’s evidence which tends to disprove contributory negligence, but this does not change the burden of proof as fixed by the statute

Nor can we sustain the eighth assignment of error. His honor’s charge was a careful application by him of the principles of law appropriate to the different phases of fact as they should be found by the jury.

It is urged, however, there was error in the Court’s refusal to allow defendant to ask the plaintiff what his net earnings were in the exercise of his trade. Kesler v. Smith, 66 N. C., 154. What plaintiff’s accumulations had been was an immaterial matter. He might have chosen to spend his earnings or to hoard them. That could not affect the damages •sustained by reason of his injuries. Nor would it make any difference whether he had a large family dependent on him or not, except in cases where the circumstances would entitle the plaintiff to recover exemplary damages. 2 Wood Railways, 1242. An inquiry, however, as to his earnings in his business is competent. It is not itself a rule of damages. There are many other elements of damages to be considered, and, “upon all the circumstances, it is for the jury to say what is a reasonable and fair compensation which the defendant should pay the plaintiff, by way of compensation, *451 for the injury he has sustained.” Lord Coleridge in Philips v. N. W. Railway Co., 42 L. T. Rep., N. S., 6. In the same opinion, which is a very clear and able exposition on this subject, his Lordship directs the attention of the jury to the amount of plaintiff’s earnings, as one of the material circumstances to be considered by them.

In Nash v. Sharp, 19 Hun., 365, Pratt, J., says: “Evidence of the nature and extent of the party’s business, or how much he was earning from Ms business or realizing from fixed wages, is proper upon the question of damages.”

“ The age and occupation of the injured person, the value of his services, that is, the wages tvhich he has earned in the past, whether he has been employed at a fixed salary or as a professional man are proper to be considered.” 2 Wood Railway 1240, and cases there cited..

The rule is indeed well settled, and had the jury been cut off from the information which could properly be brought out by the inquiry, it would have been our duty, without disturbing the findings of the jury upon the first two issues, to have directed a new trial upon the third issue, as to the amount of damages, as was done in Burton v. Railroad, 84 N. C., 192. But on examination of the record, we find that the plaintiff had replied immediately before the excluded inquiry, to a question by defendant’s counsel, “ At that time I was getting $1.50 per day and board. I was .always at work, the weather permitting.” This, we take it, was a clear statement that his net earnings were $1.50 per day, when the weather permitted, in his trade of “bricklayer and plasterer.” If the question excluded, was intended to repeat the inquiry already answered, it was no error to exclude it. If it was meant by it to inquire what were his net earnings at his trade after supporting himself and family, it was incompetent. That a man’s wages niay be required in the support of his family, without leaving him any “nett” earnings, in no wise diminishes his damages in .losing his *452 capacity to earn them. If the object was to show that $1.50 was more than his usual earnings, the question should have been so framed, or this purpose stated by counsel.

As to the sixth assignment of error, the Court charged the jury:

“ In this class of cases the plaintiff is entitled to recover as damages one compensation for all injuries, past and prospective, in consequence of the defendant’s wrongful or negligent acts. These are understood to embrace indemnity for actual nursing and medical expenses and loss of time, or loss from inability to perform ordinary labor, or capacity to earn money. Plaintiff is to have a reasonable satisfaction (if he is entitled to recover) for loss of both bodily and mental powers, or for actual suffering, both of body and mind, which are the immediate and necessary consequences of the injury.” And added: “ There is no evidence, however, offered that anything was paid for actual nursing, or any amount was paid for medical attendance. You need not consider these items in making up your verdict, if you should arrive at that point.”

The proposition of law laid down seems to be a verbatim quotation from 3 Sutherland on Damages, 2G1, and is sustained by the numerous authorities there cited. Upon an examination of the record, we find no ground to sustain the tenth assignment of error. The Court instructed the jury not to consider those items in making up their verdict, if they should come to that issue.

Affirmed.