St. Louis, Iron Mountain & Southern Railway Co. v. Rodgers

Wood, J., (after stating the facts). We will consider the assignments of error in the order presented ¡by appellant’s counsel. (1) There was no error in refusing to require the appellee to elect between the cause of action for the benefit of the estate and that for the pecuniary loss to the widow and next of kin. K. C. S. Ry. Co. v. Leslie, 112 Ark. 305-327; St. Louis & S. F. Ry. Co. v. Conarty, 106 Ark. 421. (2) There was no error in refusing to require the jury to apportion the award of -damages so- as to show what sum they found on the cause of action for deceased’s pain .and -suffering and the cause of action in favor of the •deceased’s 'widow and next of kin for their pecuniary loss. In Gulf, Colorado & Santa Fe Ry. Co. v. McGinnis, 228 U. S. 173-176, it is- -said: “Though the judgment may be for a gross 'amount, the interest of each beneficiary -must be measured by his or her individual pecuniary loss; that apportionment is for the jury to return. This will, of course, exclude any recovery in behalf of such as -show no pecuniary loss.” In St. Louis, I. M. & S. Ry. Co. v. Hesterly, 228 U. S. 702, it is held that under the -act only one recovery can be had. And in Taylor v. Taylor, 232 U. S. 363, it was held that the act under consideration supersedes all State statutes upon the subject covered by it, and that the distribution of the amount recovered in .an alotion for the death of an -employee is determined by the provisions of the Federal ¡statute and not by the State laws. See also Railway v. Hesterly, supra. There is nothing in any of these decisions that requires that the jury, in returning their verdict, should apportion the damages between the two causes of action, showing the amount allowed for the deceased’s pain and suffering ¡and the amount .allowed for pecuniary loss to the widow and next of kin. The statute .and the amendment, as we construe it, does not require that there should be any such apportionment. It does require that there “shall be only one recovery for the same injury,” and the personal representative is entitled to recover only for the benefit of those surviving relatives of the deceased employee who derived pecuniary assistance from him during his life, and who, therefore, were entitled to compensation for the pecuniary loss resulting to them from 'his death. As was said in the case of Railway Company v. McGinnis, supra, “The recovery, therefore, must be limited to compensating those relatives for whose benefit the •administrator sues as .are shown to have sustained some pecuniary loss. ’ ’ The appellant did not ask (the court to instruct the jury that it could find no damages in favor of the daughter of Rodgers, who was of age and who .was not shown to have been receiving any pecuniary assistance from her father. The request to apportion the verdict between damages for pain and suffering and damages for the pecuniary loss to. 'the next of kin did not include such request. Appellant did not ask the court to make a ruling to this effect, and it is therefore not in ’an attitude to complain. No possible prejudice could have resulted to appellant in the ruling of the court refusing to. require the jury to apportion the verdict. The .amount of the verdict was $2,000. This was not .an excessive amount, even though it had been for only one of the causes of action. The evidence was amply sufficient to sustain it as a recovery for the peicuniary loss alone to the widow and infant son. (3) Objection is urged to the following instruction which was given at .appellee’s request: “3. The defendant pleads that the deceased was. guilty .of contributory negligence. You .are to'ld that the burden is upon the defendant to show such contributory negligence, if any, by the greater weight of the evidence. Even if you should believe that the deceased was guilty of contributory negligence, this would not preclude a recovery by the plaintiff; but you should reduce the amount of the verdict in proportion to the amount of the negligence attributable to the deceased. ’ ’ This instruction follows the language of the statute on the subject of contributory negligence. The court granted the appellant’s prayer No. 11, telling the jury, in effect, that where the deceased’s negligence contributed to his injury that “the damages .should be diminished in the proportion that deceased’s negligence bears to the .combined negligence of the deceased and the defendant. ’ ’ In Norfolk & Western Ry. Co. v. Earnest, 229 U. S. 114-122, it is said: “The statutory direction that the diminution shall be ‘in proportion to the .amount of negligence attributable to such employee’ means, and can only mean, that, where the causal negligence is partly attributable to him and partly to the carrier, he shall not recover full damages, but only a proportional amount bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both; the purpose being to abrogate .the common law rule completely exonerating the carrier from liability in such a case .and to substitute a new rule confining the exoneration to .a proportional part of the damages corresponding to the amount of negligence attributable to the employee. ’ ’ There is no conflict in the instructions, and when considered together the jury could not have possibly been misled to the prejudice of the appellant. Instruction No. 3, given .at the instance of appellee, follows the exact language of 'the ¡statute, and instruction No. 11, given at the instance of the ¡appellant, explains what the statute means, in accord with Norfolk & Western Ry. Co. v. Earnest, supra. See also St. Louis S. W. Ry. Co. v. Anderson, 117 Ark. 41. (4) The appellant complains because the court permitted the jury to consider ¡as one of the elements of damage “the care and attention, instruction and training, if any, one of Bodgers ’ disposition,,and capacity, as shown by the evidence, might reasonably be expected to give his wife .and children, which was lost to them toy his death. ’ ’ The instruction was correct ,so far as it applied to the infant child of the deceased. See Norfolk & West. Ry. Co. v. Sarah E. Holbrook, Admx., 235 U. S. 625; Mich. Cent. Rd. Co. v. Vreeland, 227 U. S. 59; Railway Co. v. Sweet, 60 Ark. 550; Railway Co. v. Leslie, supra. The jury, as sensible men, must have understood that the instruction and training mentioned referred to deceased’s ¡children. Moreover, there is nothing in the ■amount of the verdict to indicate that it w:as the result of ■any passion or prejudice. The instruction complained of only related to the measure of ¡damages, and the amount is so much less than the jury might have found for the pecuniary loss to appellee and her minor ¡child, it can not toe ¡said that the instruction, even if erroneous, in any way prejudiced appellant’s rights. (5) The court did not err in refusing appellant’s prayer for instruction No. 7, in which the appellant ■sought to have the jury told that the deceased Bodgers ¡assumed “those unusual and ¡extraordinary risks -that were plainly observable to the eyes of an ordinarily prudent man,” etc. In ¡appellant’s prayer for instruction No. 6, the court told the jury that Bodgers, when, he entered the employ of the appellant, “assumed the risk of the ¡ordinary and usual dangers of the occupation, and told them that if they ‘¡believed from the testimony that Bodgers’ injury and death resulted from one of the ordinary and usual dangers to which brakemen are exposed in the course of their work as usually and customarily conducted,” the verdict should toe for the defendant. Under the evidence this- instruction was all that was demanded and -all that it was proper to give to -correctly ■suhonit the issue of assumed risk. There was no testimony to warrant -a,submission to the jury of the issue as to whether there was an unusual risk which was so obvious that Rodgers must -have known and -appreciated the danger arising therefrom. See St. Louis, I. M. & Sou. Ry. Co. v. Vann, 98 Ark. 145-150. The instruction, as an abstract proposition of law, was not correct, because it failed to make ia -proper distinction ¡between contributory negligence -and a-ssumed risk. See Choctaw, Oklahoma & Gulf Rd. Co. v. Jones, 77 Ark. 367; St. Louis, I. M. & Sou. Ry. Co. v. Holman, 90 Ark. 555; St. Louis, I. M. S Sou. Ry. Co. v. Owens, 103 Ark. 61. (6) This is the second appeal in this case. The cause was reversed on the first appeal 'because the evidence was not sufficient to sustain the verdict. On the trial from which this -appeal -comes there were new developments and material changes in the evidence which it wonl-d unnecessarily lengthen this opinion to discuss. It was proper to submit to the jury the issues of negligence, contributory negligence and assumed risk, under the testimony -discl'osed by this record. The instructions are free from error and there was evidence to sustain the verdict. The judgment is therefore correct, and it is affirmed.