Bryant v. Woodlief

DeNny,' J. Each defendant assigns as error the refusal of the court below to sustain his motion for judgment as of nonsuit. The appellant Woodlief insists that if he was negligent his negligence was insulated by the negligence of the defendant Ray in turning his car in front of him, and he cites in support of his position Hudson v. Transit Co., 250 N.C. 435, 108 S.E. 2d 900; Aldridge v. Hasty, 240, N.C. 353, 82 S.E. 2d 331; and Butner v. Spease, 217 N.C. 82, 6 S.E. 2d 808. The test of whether the negligent conduct of one tort feasor is to be insulated as a matter of law by the independent act of another, is well settled by our decisions. In Hartón v. Telephone Co., 141 N.C. 455, 54 S.E. 299, the Court said: “ * * * the test * * is whether the intervening act and the resultant injury is one that the author of the primary negligence could have reasonably foreseen and expected * * *. We think it the more correct rule that, except in cases so clear that there can be no two opinions among men of fair minds, the question should be left to the jury to determine whether the intervening act and the resultant injury were such that the author of *492 the original wrong could reasonably have expected them to occur as a result of his own negligent act. * *” Hinnant v. R. R., 202 N.C. 489, 163 S.E. 555; Beach v. Patton, 208 N.C. 134, 179 S.E. 446; Gas Co., v. Montgomery Ward & Co., 231 N.C. 270, 56 S.E. 2d 689; Moore V. Plymouth, 249 N.C. 423, 106 S.E. 2d 695. In our opinion, the cases relied on by the appellant Woodilief and cited above are not controlling on the factual situation revealed by this record. The Hudson case involved a collision which occurred at an intersection governed by a traffic control signal, with the defendant Miller having a red light in his traffic lane until defendant Minton, who was driving the defendant Transit Company’s truck, was 75 feet from the intersection approaching from the opposite direction at a speed of approximately 45 miles per hour, when traffic lights for both operators simultaneously turned green. Defendant Miller then made a left turn directly in front of Minton when the truck driven by Min-ton was so close that a collision was unavoidable. We upheld a non-suit as to the Transit Company and its driver. In Aldridge v. Hasty, supra, the defendant Burns turned to his left directly in front of the defendant Hasty when Hasty was 20-25 feet away. In the instant case, the defendant Woodlief testified that he was from 100 to 200 feet away from the McLean driveway when the defendant Ray cut across the highway in front of him. The physical facts seem to warrant the inference that he was more than 200 feet away when he saw the Ray car making a left turn, since he managed to apply his brakes andi his car left tire and skid marks after the brakes were applied for 197 feet before reaching the point of impact. In the Butner case, while traveling at night and at such time when he should have known his hand signal for a left turn could not be seen by the approaching car because his hand would be in the shadow of his own lights, defendant Spease turned to his left and directly in front of Butner’s car at a time when the vehicles were only some forty feet apart. In the consolidated cases of Henderson v. Powell and Rattley v. Powell, 221 N.C. 239, 19 S.E. 2d 876, at the time of the accident complained of, the plaintiffs Henderson and Sylvester Rattley, intestate of the plaintiff administratrix, were guest passengers in an automobile owned and operated by George McCrimmon. McCrimmon pulled into the path of a train approaching at a speed of approximately 60 miles per hour, with resultant injuries to plaintiff and injuries resulting in the death of Sylvester Rattley. In reversing a judgment as of nonsuit in the lower court, as to the defendant railroad, this Court *493 said: “The defendants insist that their negligence, if any there was, would not have produced the injury to the plaintiffs without the negligence of McCrimmon; and therefore it stands insulated, leaving; McCrimmon’s intervening negligence the sole proximate cause. The converse of this statement is universally accepted as true, and is thus expressed in a leading case: ‘When several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes; but it cannot be attributed to a cause unless without its operation the accident would not have happened.’ Ring v. City of Cohoes, 77 N.Y. 83, 90. It took the combined activities of the railroad company and McCrimmon to bring their respective vehicles into the collision inflicting the injury. The formula proposed by defendants would exonerate both of them with equal impartiality.” There is ample evidence on this record to support the plaintiff’s contention that the defendant Woodlief was operating his automobile at an excessive and unlawful rate of speed, to wit, 80 to 90 -miles per hour as he approached the point of collision. In light of the evidence on the record before us, it cannot -be said as a matter of law that the defendant Woodlief could not reasonably have foreseen that some accident or injury was likely to occur as the result of his excessive speed. Moore v. Plymouth, supra. With respect to the evidence against the defendant Ray, in our opinion, when the evidence against him is considered in the light most favorable to the plaintiff, it was sufficient to carry the case to the jury. It was within the province of the jury to determine whether or not the defendant Ray exercised reasonable care under the circumstances in turning his car into the -path of an approaching car which he testified was in his opinion approaching him at a speed of 100 miles per hour; and the greatest distance between the Woodlief car and the Ray car at the time defendant Ray began his left turn, was fixed by the plaintiff’s witness Kearney at 600 feet, and the shortest distance between the two vehicles when the defendant Ray began his left turn was 100 to 200 feet, testified to by the defendant Woodlief. In our opinion, the court below properly overruled the respective motions for judgment as of nonsuit, and we so hold. The most serious question raised by both defendants andi assigned by both as error was the admission of evidence in the trial below to the effect that plaintiff’s testate was a retired railroad employee and was drawing the sum of $140.28 per month from the Railroad *494 Retirement Board at the time of his death. Both defendants insist that such evidence was inadmissible and that the court below committed error in allowing the jury to consider such evidence in determining the pecuniary loss sustained by the plaintiff as the result of her testate’s wrongful death. G.S. 28-174 provides: “Damages recoverable for death by wrongful act. — The plaintiff in such action may recover such damages as are a fair and just compensation for the pecuniary injury resulting from such death.” The defendants insist and seriously contend that the pecuniary value of the life of plaintiff’s testate is limited to the net income which the deceased might reasonably have been expected to earn from his own labors had his life not been cut short by his untimely death. Caudle v. R, R., 242 N.C. 466, 88 S.E. 2d 138; Lamm v. Lorbacher, 235 N.C. 728, 71 S.E. 2d 49; Journigan v. Ice Co., 233 N.C. 180, 63 S.E. 2d 183; Queen City Coach Co. v. Lee, 218 N.C. 320, 11 S.E. 2d 341; Carpenter v. Power Co., 191 N.C. 130, 131 S.E. 400; Purnell v. R. R., 190 N.C. 573, 130 S.E. 313; Poe v. R. R., 141 N.C. 525, 54 S.E. 406; Russell v. Steamboat Co., 126 N.C. 961, 36 S.E. 191. Ordinarily, in an action for wrongful death the plaintiff’s evidence presents no facts that would warrant any formula or method for ascertaining the fair and reasonable compensation for the pecuniary injury resulting from wrongful death, other than that laid down in 'the above cases. Even so, we do not understand that the general rule in this respect would exclude the inclusion of income from an annuity, life estate, retirement pay or other income for life only, in arriving at the pecuniary loss sustained by reason of wrongful death. In Poe v. R. R., supra, it is said: “This Court has not prescribed any ‘hard and fast rule’ by which to bind the jury in making the estimate of what sum should be given or to require them to give the assessment of the damages in any particular way.” In the case of Mendenhall v. R. R., 123 N.C. 275, 31 S.E. 480, a proper charge in such case was given and its form was commended as a safe one for guidance in the opinion of Poe v. R. R., supra, and is as follows: “The measure of damages is the present value of the net pecuniary worth of the deceased to be ascertained by deducting the cost of his own living and expenditures from the gross income, based upon his life expectancy. As a basis on which to enable the jury to make their estimate, it is competent to show, and for them to consider the age of the deceased, his prospects in life, his habits, his character, his industry and skill, the means he had for making money, the business in which he was employed — the end of it all *495 being to enable the jury to fix upon the net income which might be reasonably expected if death had not ensued, and thus arrive at the pecuniary worth of the deceased to his family. You do not undertake to give the equivalent of human life. You allow nothing for suffering. You do not attempt to punish the railroad/, but you seek to give a fair, reasonable pecuniary worth of the deceased to his family, under the rule which I have laid down. You should rid yourself of all prejudice, if you have any, and of sympathy. It is not a question of sympathy; it is just a plain, practical question, and you should give a reasonable and fair verdict upon all the issues.” (Emphasis added) In Collier v. Arrington, 61 N.C. 356, it is said: “ * * * our statute, which gives an action to the representative of a deceased party, who was injured or slain by a trespasser, confines the recovery to the amount of pecuniary injury. It does not contemplate solatium for the plaintiff, nor punishment for the defendant. It is therefore in the nature of pecuniary demand, the only question being, how much has the plaintiff lost by the death of the person injured?” (Emphasis added) In Kesler v. Smith, 66 N.C. 154, the opinion states: “The defendant in open court admitted the unlawful killing, and the sole point at issue and tried was the question of damages.” In discussing this point, Reade, J., speaking for the Court, said: “The English statute (9-10 Vic., ch. 93) is substantially the same as ours. It is not precisely as definite as ours as to the rule of damages, inasmuch as our statute specifies ‘pecuniary injury,’ whereas the English statute also makes it the duty of the jury to apportion the damages among the beneficiaries, which ours does not. “Although the English statute omits pecuniary, yet the rule of damages which the courts have laid down is 'the reasonable expectation of pecuniary advantage from-the continuance of the life of the deceased.’ We have carefully examined the English cases, and although the rule is not laid down in all of them in precisely these words, yet in substance it is; and the rule may now be said to be settled as above.” It will be noted that the pecuniary worth of a life in a wrongful death case was not limited in our earlier cases to the net income the deceased would probably have earned during his life expectancy had his life not been terminated by wrongful death. In Gurley v. Power Co., 172 N.C. 690, 90 S.E. 943, the plaintiff administratrix instituted the action to recover for the wrongful death of a boy of 13 or 14, who was drowned in a tank at a substation of the defendant power company. On appeal from a verdict for plaintiff, *496 there was an exception to the charge on the issue of damages. The Court said: “This charge was evidently quoted by the judge from the opinion in Mendenhall v. R. R., 123 N.C. at p. 278, which has been approved often by this Court (see Anno. Ed.), down to Ward v. R. R., 161 N.C. at p. 186, and Massey v. R. R., 169 N.C. 245 * *. The charge in regard to measure of damages is in exact accord with the precedents of this Court.” This exception was overruled, but a new trial granted on other grounds. It will be noted that the charge in the Mendenhall case said nothing about limiting the pecuniary loss by reason of the wrongful death to income the deceased probably would have earned by his own exertions had his life not been cut short by his wrongful death. The general rule for the measure of damages as laid down in our later cases, as set forth in Caudle v. R.R., supra, and many other cases, in all probability grew out of the necessity for differentiating between income earned from personal exertions and income derived from investments or from an established business that would not be adversely affected by the wrongful death. In the recent case of Armentrout v. Hughes, 247 N.C. 631, 101 S.E. 2d 793, the question presented was whether or not the plaintiff was entitled to recover nominal damages where there is no evidence of actual damages. The Court by majority vote held that the nominal damages under such circumstances were not recoverable. Rodman, J., speaking for the Court in a very scholarly opinion, traced the history of the statute now under consideration and said: “Our statute has from its passage been interpreted to accord with the interpretation given by the English courts to Lord Campbell’s Act.” In the case of Franklin v. South Eastern Rwy. Co. (1858), 3 Hurl-stone & Norman 211, 157 Eng. Repr. 448, the action was instituted for wrongful death and the Court’s ruling is succinctly stated in the syllabus of the opinion as follows: “In an action by a father for injury resulting from the death of his son, it appeared that the father was old and infirm, that the son, who was young and earning good wages, assisted his father in some work for which the father was paid 3s. 6d. a week. The jury found that the father had a reasonable expectation of benefit from the continuance of his son’s life: — Held, that the action was maintainable.” In Halsbury’s Laws of England, Third Edition, Volume 28, Negligence, page 102, it is said: “Damages are not given merely in respect of the loss of a legal right, inasmuch as they are distributed among relations only and not among all individuals sustaining the loss, and *497 they should be calculated with reference to the amount of reasonable expectation of pecuniary benefit from the continuance of the life.” We have been able to find only one case directly in point from other jurisdictions in this country on the question now before us. On the other hand, we have not been able,to find any opinion by any court in this country that has held that the admission of evidence in a wrongful death action with respect to retirement income is improper. In the case of Heskamp v. Bradshaw’s Adm’r., 294 Ky. 618, 172 S.W. 2d 447, the action was instituted to recover for the wrongful death of C. W. Bradkhaw. On appeal it was contended, as it is in the case now before us, that it was error to allow the plaintiff to prove that for some years prior to his death-Mr. Bradshaw had been the recipient of a pension. It was argued that plaintiff’s decedent had not earned any money for several years and that he was not able to earn money at the time of his death. Mr. Bradshaw was.78 years of age and had a life expectancy of 6.21 years at the time of his death. He was in good health and unusually active for a man of his age. He was an employee of the Louisville & Nashville Railroad Company for more than forty years, and was a division superintendent when he was retired on a pension in 1922. At the time of his death he was receiving retirement pay in the sum of $146.01 each month. The Court said: “But, say appellants, the proof as to the pension received by the decedent was incompetent and afforded the jury a false basis on which to rest their verdict. The precise question has never been diecided by this court, and there is a dearth of authority on the subject. The decedent had earned the pension by his services in the past, and, under such circumstances, it is more reasonable to believe that a pension will continue until the pensioner’s death than to believe that any salary or wages being earned by a man of advanced years will continue until his death. That a workman is earning wages at the time of his death is a circumstance to be considered by the jury in fixing the amount of damages, but it is only one element and must be considered in connection with other pertinent facts. West Kentucky Coal Company v. Shoulder’s Adm’r., 234 Ky. 427, 28 S.W. 2d 479. We think a pension, especially a type such as the one received by the decedent in this case which very probably will continue until the recipient’s death, is a proper element to be considered by the jury in arriving at a verdict in an action brought for damages for the death of a person by tortious act pursuant to Kentucky Statutes, § 6, K.R.S. 411.130. Such a pension is a substitute for earning power. It follows that the court did not- err in admitting evidence concerning the decedent’s pension.” *498 In the case of Bridges v. Charlotte, 221 N.C. 472, 20 S.E. 2d 825, it was held that payments from a retirement fund to teachers after they had ceased to serve, were not offensive to Article I, Section 7, of our State Constitution, in that they were regarded as in the nature of delayed compensation for public services rendered or delayed payments of salary. Certainly, plaintiff’s testate through long years of labor, earned everything paid to him by the Railroad Retirement Board and everything that would have been paid to him had his life expectancy not been cut short by his wrongful death. In our opinion, the facts compel the conclusion that the plaintiff has suffered a pecuniary loss that is fixed and certain, less the reasonable personal living expenses which in all probability plaintiff’s testate would have expended for his own support and maintenance had he lived out his expectancy. We hold, therefore, that the admission of the evidence complained of was competent, and this assignment of error is overruled as to both defendants. It is not intended that this opinion shall alter, modify or overrule any of our previous opinions dealing with the measure of damages for wrongful death. The fact is, in this case, we are confronted with a factual situation not heretofore presented to this Court. However, we' are constrained to hold that our wrongful death statute includes pecuniary loss of the character involved in this case. There are numerous other assignments of error, but in our opinion there were no prejudicial errors committed in the trial below that would justify or warrant the awarding of a new trial. In the trial below we find no error in law. No error.