Purnell v. Rockingham Railroad

Adams, J. At common law a civil action could not be maintained against one who had negligently caused the death of another (Craig v. Lumber Co., 189 N. C., 137), but in 1854 the Legislature enacted a statute authorizing suit by the personal representative of any person whose death had been caused by neglect, default, or wrongful act. Laws *575 of N. C., 1854, ch. 39. It was provided in section 3 tbat the jury might give such damages as' they should deem fair and just, having regard to the pecuniary injury resulting from the wrongful death. The substance of this statute was brought forward by the Legislature of 1868-’9 (ch. 113), and it was enacted that the plaintiff might recover “such damages as are a fair and just compensation for the pecuniary injury ro-suiting from such death.” This is the language of the statute now in force. C. S., 161. In Kesler v. Smith, 66 N. C., 154, Reade, J., construing the act of 1854, stated the rule for damages to be the “reasonable expectation of pecuniary advantage from the continuance of the life of the deceased.” This statement was approved in Burton v. R. R., 82 N. C., 505; but in Pickett v. R. R., 117 N. C., 639, this Court disapproved an extension of the rule as made by the trial judge and held that the measure of damages for the loss of a human life is the present value of the net income to be ascertained by deducting the cost of living and expenditures from the gross income, and that the jury could not allow more than the present value of the accumulation arising from such net income based upon the expectancy of life. This ruling was approved in Benton v. R. R., 122 N. C., 1007, in which Kesler v. Smith, supra and Burton v. R. R., supra, were cited as authorities, although there is an intimation in Bradley v. R. R., 122 N. C., 972, that the opinion in Kesler’s case followed the English rule. However, in Poe v. R. R., 141 N. C., 525, Walker, J., suggested that Pickett’s case stated more definitely than Kesler’s case the proper method of calculation. It will be noted that in Pickett’s case the words “deducting the cost of living and expenditures from the gross income” were approved by this Court on appeal. This identical language or the substance of it was reiterated and confirmed in Mendenhall v. R. R., 123 N. C., 275; Russell v. Steamboat Co., 126 N. C., 961; Watson v. R. R., 133 N. C., 188, and in Gerringer v. R. R., 146 N. C., 32. It is true that in Carter v. R. R., 139 N. C., 499, the charge was criticised because it directed the jury to deduct from the gross income such expenditures as they should find the deceased would have made; and it is said that the true rule requires the jury to deduct only the reasonably necessary personal expenses of the deceased, taking into consideration his age, manner of living, etc. The use of the word “expenditures” was not sanctioned because in the absence of any explanation it was thought the jury might have understood the word to embrace the amount expended by the deceased for the benefit of his family or those dependent upon him. See, also, Roberson v. Lumber Co., 154 N. C., 328, and Bigsbee v. R. R., ante, 234. The objection to the use of the word “expenditures” as stated in Carter v. R. R., supra, is met in the case at bar by the following specific instruction of the trial judge: “Where one *576 comes to bis death by actionable negligence upon the part of another, the jury, in considering the award of damages, if they reach such consideration, will, first, from the testimony determine the probable life expectancy of the deceased, the probable number of years that he would have lived had death not cut short the thread of life. Having done so, then from all the facts disclosed by the testimony, the jury will determine the probable amount that he would have made during his probable life expectancy and when they have done this, they have reached what the law styles as his gross income. Having determined the amount of the gross income in this way, then they next should proceed to inquire what would have been his reasonable personal expenses as disclosed by the evidence. In order to arrive at this amount, they again consider what was his probable life expectancy and what he spent upon himself or would likely have spent upon himself; they then reach the amount of the probable amount of his personal expenditures.” By a fair interpretation of this instruction it will be seen that the use of the word “expenditures” could only have been understood as embracing the personal expenses of-the deceased and not expenditures for his family or those dependent upon him. Thus the instruction is brought directly in line with the authorities affirming the decision in Pickett v. R. R., supra. The first exception therefore must be overruled. With the respect to the second exception the appellant contends that the trial judge instructed the jury to ascertain the gross earnings and the personal expenditures and to subtract the latter from the former, and in this way to find the net income of the deceased; then to deduct the net income from something that is not defined, and to determine the present pecuniary value of such amount by a method not stated; and finally that the sum thus arrived at would be the answer to the fourth issue. In our opinion the instruction is not reasonably susceptible of this interpretation. The words “and having deducted this amount” evidently refer to the personal expenses of the deceased and not to the net income; and as indicated the deduction was to be made, not from an unknown quantity, but from the gross income. The charge, of course, must be considered in its entirety, in the connected way in which it was given and on the presumption that the jury did not disregard it; and if it presents the law fairly and correctly it will afford no ground for reversal, though expressions standing alone may be technically incorrect. White v. Hines, 182 N. C., 275; Sutton v. Melton, 183 N. C., 369; Rierson v. Steel Co., 184 N. C., 363; S. v. Dill, 184 N. C., 645. We find No error.