Hinds v. Moore

• Citation: 124 Miss. 500,87 So. 1
• Decision Date: 15 February 1921
• Docket Number: 21175
• Court: United States State Supreme Court of Mississippi
• Parties: HINDS, DIRECTOR GENERAL OF RAILROADS, ET AL. v. MOORE, ET AL

87 So. 1

124 Miss. 500

HINDS, DIRECTOR GENERAL OF RAILROADS, ET AL. v. MOORE, ET AL

No. 21175

Supreme Court of Mississippi

February 15, 1921

1 RAILROADS. Negligence held question for jury.

Where the testimony is conflicting as to the rate of speed at which a train was running before its collision with an automobile on a street crossing, the plaintiffs' testimony estimating the speed at thirty or thirty-five and the defendant's at ten or fifteen miles an hour, the testimony being in conflict as to whether or not the proper signals were given for the approach of the crossing, the plaintiffs' witnesses testifying that these signals were not given, and the defendant's witnesses that they were the testimony being in conflict as to whether or not the accident occurred within or without the corporate limits of the municipality, and the testimony of the defendant tending to show that a proper lookout was kept for the crossing, and an attempt to stop the train was made as soon as the automobile was discovered approaching the track the testimony being in conflict as to the rate of speed of the automobile, it is improper to instruct the jury to return a verdict in favor of the plaintiff. The material conflicts in the testimony make it a question of fact for the jury to decide whether or not the defendant railroad company was guilty of negligence.

2 RAILROADS. Fifteen miles an hour when approaching corporate limits not negligence per se.

It is not negligence per se for a train to run at a rate of fifteen miles an hour just before it enters the corporate limits of a municipality.

3. RAILROADS. Six miles an hour statute inapplicable outside municipal limits.

Section 4043, Code 1906 (section 6667, Hemingway's Code), making railroad companies liable for injuries resulting from the running of trains within a municipality at a rate of speed exceeding six miles an hour, has no application where the injury was inflicted outside of the municipal limits, although it may be impossible to reduce the speed of the train to six miles an hour when it enters the municipal limits.

4. RAILROADS. Reasonable lookout and speed required at crossing.

On approaching a frequently used crossing it is the duty of the servants of the railroad company to use reasonable care and diligence in maintaining a proper lookout, and to approach the crossing at a reasonable rate of speed, and in this case these were questions of fact to be decided by the jury under the conflicting testimony.

5. RAILROADS. Proximate cause of accident held question for the jury.

It was also a question of fact for the jury to decide whether or not the negligence of the servants of the defendants, if they believed they were negligent, was the approximate or one of the contributing causes of the accident.

6. NEGLIGENCE. Child eight years old prima facie incapable of contributory negligence; exceptional capacity may be shown; presumption not rebutted by showing rendition of usual services. A child eight years of age is prima-facie incapable of contributory negligence, but if he is of exceptional capacity, or especially precocious for his age, this may be shown. This presumption is not rebutted by testimony that he rendered the ordinary services to his parents that a child of his age usually renders.

7. DEATH. Instruction held to allow double recovery for minor's services.

In a suit for damages for the death of an eight year old child under chapter 214, Laws of 1914 (section 501, Hemingway's Code), where the jury was instructed to find a lump sum as a reasonable compensation for the life expectancy of a child and in addition thereto a reasonable compensation for the value of the services during minority, this instruction is inaccurate. The expectancy of life is calculated from the death of the deceased, and under the first part of the instruction compensation was recovered during the period of minority, and this compensation was recovered in addition thereto by the latter part of the instruction.

HON. R. W. HEIDELBERG, Judge.

APPEAL from circuit court of Lauderdale county, HON. R. W. HEIDELBERG, Judge.

Action by Martha Moore and others against Walker D. Hines, Director General of Railroads, and another. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

Reversed and remanded.

A. S. Bozeman and B. F. Cameron, Jr., for appellants.

Assuming that the train had been running at a speed in excess of six miles an hour--say twelve to fifteen miles an hour as the jury had the right to find from the testimony, when outside the corporate limits but that the speed was reduced to six miles an hour immediately at the corporate limits, then we submit that it was for the jury to say whether or not the excessive speed of the train was the proximate cause of the injury. Louisville, etc., R. Co. v. Caster, 5 So. 388; Mississippi, etc., R. Co. v. Butler, 93 Miss. 654.

4. The court below erred in giving instruction No. 3, asked by the plaintiff, being the instruction on the measure of damages, as follows: "The court instructs the jury for the plaintiffs: That if the jury find for the plaintiffs, they should find a lump sum which the jury may believe from the evidence will be a reasonable compensation for the life expectancy of Judge Moore, Jr., and in addition thereto will be a reasonable compensation for the value of any service which the jury may believe from the evidence if any, that Judge Moore, Jr., would have rendered to his mother before he reached the age of twenty-one years."

We submit that this instruction, as given by the court, is clearly erroneous, because it authorizes the infliction of double damages and this error was made manifest in the excessive verdict which was rendered for the death of this eight year old negro boy.

"Reasonable compensation for the life expectancy of Judge Moore, Jr.," means of course, the money value or earnings, of his entire life from eight years of age to the end. Assuming that he would have lived to the good old age of seventy years, this first element of damages included: 1. His prospective earnings from eight to twenty-one year; and 2, his prospective earnings from twenty-one to seventy.

The second element of damages in this instruction, "Reasonable compensation for the value of any service that Judge Moore, Jr., would have rendered to his mother before he reached the age of twenty-one years" was necessarily his prospective earnings from eight to twenty-one years. Compensation for his life expectancy up to twenty-one years, and compensation for his services to his mother up to twenty-one years are necessarily one and the same.

The mother was entitled, of course, to the services--all the services, and all the earnings of the child during minority. The child was entitled to his earnings after twenty-one years of age. His mother living, he had no monetary interest in his earning up to twenty-one years of age, that is to say during minority, and he could not recover for the value of his expectancy of life up to twenty-one years. For both to so recover would be double damages.

It cannot be that the mother could recover the value of the services, or life expectancy, of the boy up to twenty-one years, and that the boy might have also recovered an additional sum as the value of his life expectancy for the same period. The effect of such a finding would be to give to the mother, plaintiff, twice the value of the services of the child during minority; first, in her own right, and second, in the right of the child, double damages for the child's minority.

And we submit that our contention is true notwithstanding the case of Cumberland Tel. Co. v. Anderson, 89 Miss. 732. The instruction on the measure of damages under consideration in that case, which was a suit by a mother for the death of a minor son, authorized the jury to consider the following elements of damages: 1. Such damages as the boy sustained up to the time of his death, taking into consideration his injuries and his mental and physical suffering, such damages to be reasonable compensation to the boy for his injuries. 2. The pecuniary damages that the plaintiff may have sustained by the death of her son, taking into consideration the loss for the mother of the services of the boy until he would have arrived at the age of twenty-one years, and the loss of prospective gratuities from the boy to his mother after he became twenty-one years of age.

The last clause of the instruction was condemned under the facts of the case as manifest error, the court saying that not all possible gratuities can be recovered, but only such gratuities as there is reasonable expectation of receiving.

Having decided the question as involved, the court announces that in a suit by the mother for the death of a minor son brought under the Acts of 1898 these four elements of damage may be recovered: 1. The value of the services of the child from the time of death up to majority; plus. 2. Such damages as the jury may fairly award as compensation for the physical and mental anguish endured by the child killed, between the injury and death; to which must also be added. 3. Such gratuities as the evidence may show the mother had a reasonable expectation of receiving before or after majority. 4. Whatever sum the son might have recovered as the present value of his own expectancy.

The enumeration of the four elements of damages that might be recovered under the statute for wrongful death of a child, was not involved in the Anderson case, and was not necessary to a decision thereof.

Refreshing our memory with regard to the case of New Deemer Mfg. Co v. Alexander, 85 So. 104, we find that our argument on the instruction in question closely follows the opinion of this court in the...