Chesapeake & O. Ry. Co. v. Dwyer's Adm'x

• Citation: 162 Ky. 427,172 S.W. 918
• Parties: CHESAPEAKE & O. RY. CO. v. DWYER'S ADM'X. [d1]
• Decision Date: 29 January 1915
• Court: Court of Appeals of Kentucky

172 S.W. 918

162 Ky. 427

CHESAPEAKE & O. RY. CO. v. DWYER'S ADM'X. ^[d1]

Court of Appeals of Kentucky.

January 29, 1915

Appeal from Circuit Court, Boyd County.

Action by Richard Dwyer's administratrix against the Chesapeake & Ohio Railway Company. From a judgment for plaintiff defendant appeals. Affirmed.

Proctor K. Malin, of Ashland, and Worthington, Cochran & Browning, of Maysville, for appellant.

R. S Dinkle, Watt M. Prichard, and Geo. B. Martin, all of Catlettsburg, for appellee.

SETTLE J.

This is the second appeal in this case, the opinion upon the former appeal being reported in 157 Ky. 590, 163 S.W. 752. As the facts out of which the action arose and questions of law involved are fully set out in that opinion, it is unnecessary to repeat them here; it being sufficient to say that appellee's intestate, Richard Dwyer, who was a locomotive engineer in the employ of the appellant, Chesapeake & Ohio Railway Company, was killed May 12, 1910, at England Hill in Boyd county, by the derailment of a part of a freight train upon which he was employed as such engineer; it being alleged in the petition that the intestate's death was caused by the negligence of appellant in the particulars therein named but, mainly, on account of its negligence and that of its servants, in failing to take the proper precautions to prevent the fall of débris upon the railroad track resulting from a landslide at the place of the accident, which caused the derailment of the train. The action was brought under the act of Congress known as the "Employers' Liability Act," approved April 22, 1908, as amended by the act of April 5, 1910. The first trial resulted in a verdict and judgment in appellee's favor for $14,000 damages. On the second trial, occurring after the reversal of that judgment by this court, appellee recovered a verdict for $16,000 damages, and this appeal is prosecuted from the judgment entered upon that verdict.

It is not denied by counsel for appellant that the evidence authorized a recovery of damages for some amount, but insisted that the amount recovered on the last trial is grossly excessive, and that the trial court erred in instructing the jury as to the measure of damages. It is admitted that the deceased left but two children, a son and daughter, the former being an adult and the latter a married woman, and that neither of the children was dependent upon him for support. So in determining whether or not the verdict is excessive only the damage sustained by the appellee widow can be considered.

It appears from the evidence that the deceased, Richard Dwyer, was a sober, industrious man, in good health, and 45 years of age, at the time of his death; and that he was earning $150 per month regularly, and often would receive from $10 to $20 per month, in addition, for extra time, which made his monthly earnings vary from $150 to $170. According to the table introduced in evidence, the deceased at the time of his death had an expectancy of 24.46 years. So, taking the $150 per month as a basis, he was earning $1,800 per year, which, if continued through the period of the expectancy, would have aggregated $44,028. If we accept $160 per month as a basis, which will probably be a fair average, his earnings would have amounted to $1,920 per year, and, during the years of the expectancy, reached $46,963.20. If we take $150 per month as his earnings during the period of expectancy, amounting altogether to $44,028, and it be assumed that only one-half thereof, $22,014, would have been required to support the wife had he lived, such half would exceed by $6,014 the amount awarded by the verdict of the jury. If, however, we accept as a basis $160 per month, which, according to the proof, would be a fair average, it would amount during the period of expectancy to $46,963.20, one-half of which, $23,481.60, would exceed by $7,481.60, the amount awarded by the verdict of the jury. If only one-third of his earnings would have been required for the support of the widow had he lived, taking $160 per month as a basis for what he would have earned during his life expectancy, such third, amounting to $15,654.40, would be only $345.60 less than the amount recovered. Under the award made by the jury, the appellee, widow of the deceased, will only receive $654.13 each year of the 24.46 years of expectancy, which is doubtless less than she would have received had her husband lived during that time, even if allowance be made for reasonable diminution in the deceased's ability to earn money that might be expected to result from the decline of strength during the latter years of such expectancy.

The contention of counsel for appellant that...