Burns v. Asheboro & M. R. Co

• Court: United States State Supreme Court of North Carolina
• Citation: 34 S.E. 495,125 N.C. 304
• Parties: BURNS. v. ASHEBORO & M. R. CO.
• Decision Date: 28 November 1899

34 S.E. 495
125 N.C. 304

BURNS.
v.
ASHEBORO & M. R. CO.

Supreme Court of North Carolina.

Nov. 28, 1899.

VERDICT—DAMAGES—INADEQUACY—REVIEW — DEATH—EVIDENCE—EARNING CAPACITY—HARMLESS ERROR.

1. Refusal of a trial judge to set aside a verdict, on plaintiff's motion, on the ground that the damages awarded were grossly inadequate, is not reviewable.

2. In an action against a railroad company to recover for the death of plaintiff's husband, refusal to permit a witness to testify what the usual monthly earnings for engineers and lire-men are, where it is shown that plaintiff had been an engineer, but was at the time of his death reduced to a fireman, is harmless, where the witness subsequently testified as to what decedent's "earning capacity" was at the time of his death.

3. In an action against a railroad company to recover for the death of plaintiff's husband, alleged to have been caused by defendant's negligence, where it appears that at the time of his death he was employed as a fireman, though prior thereto he had been employed as an engineer, it is error to refuse to permit plaintiff to testify as to what deceased earned as an engineer, as bearing on the quantum of plaintiff's

[34 S.E. 496]

damages, as such evidence, in connection with testimony as to decedent's habits, industry, and ability, is competent.

4. In an action by a wife against a railroad company to recover for the death of her husband, alleged to have been caused by defendant's negligence, where plaintiff has shown that her husband has occupied a more remunerative position than that which he filled at the time of his death, it is competent for defendant to show by cross-examination or direct proof that he was not competent to fill a better position than that in which he was engaged at the time of his death.

5. Where, in an action against a railroad company for the death of plaintiff's husband, the evidence disclosed that he had been an engineer, though at the time of his death he was employed as a fireman, —a less remunerative position, —error in refusing to permit plaintiff to testify as to what he earned while employed as an engineer is not cured by subsequent testimony of defendant's superintendent that the company paid its engineers a certain wage per month.

6. In an action against a railroad company to recover for death of plaintiff's husband, alleged to have been caused by defendant's negligence, where the evidence disclosed that deceased was employed as a fireman on defendant's road at the time of his death, testimony as to what he did when not on duty is incompetent, where it does not appear that he gained any remuneration therefrom.

7. In an action against a railroad company to recover for the death of plaintiff's husband, it is competent for plaintiff to show, as bearing on the question of damages, how much deceased paid for his personal living expenses, as tending to show his net income, as well as the care he exercised in the matter.

Appeal from superior court, Randolph county; Robinson, Judge.

Action by Laura S. Burns, as administratrix, etc., against the Asheboro & Montgomery Railroad Company, to recover for death of her husband. There was a verdict for plaintiff, which she moved to set aside for inadequacy of the damages awarded, and from an order denying the motion she appeals. Reversed.

G. S. Bradshaw and B. P. Long, for appellant.

Black & Adams and Douglass & Simms, for appellee.

MONTGOMERY, J. This is an action begun by the plaintiff to recover of the defendant company damages for the alleged...