Hoffman v. Chicago & Northwestern Railway Company

• Decision Date: 28 September 1912
• Docket Number: 16,457
• Citation: 137 N.W. 878,91 Neb. 783
• Parties: FRANK HOFFMAN, ADMINISTRATOR, APPELLEE, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

137 N.W. 878

91 Neb. 783

FRANK HOFFMAN, ADMINISTRATOR, APPELLEE, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, APPELLANT

No. 16,457

Supreme Court of Nebraska

September 28, 1912

APPEAL from the district court for Holt county: WILLIAM H. WESTOVER JUDGE. Reversed.

REVERSED.

C. C Wright, B. H. Dunham, Herman Aye, R. R. Dickson and E. H Benedict, for appellant.

R. M. Johnson and M. F. Harrington, contra.

ROSE, J. LETTON, J., concurring in part, FAWCETT, J., concurring. REESE, C. J., dissenting.

OPINION

ROSE, J.

This is an action for damages caused by alleged negligence resulting in the death of George V. Glover. He left a wife and three children. Chadron was his home. At the time he was injured he was rear brakeman on a stock train running between Belle Fourche and his home city--a division station on defendant's railway system, where the trackage and the switching facilities are extensive. Not far from 1:30, Sunday morning, November 10, 1907, while engaged in the duties of his employment as brakeman, he came on a train from the west into the Chadron yards on a track north of the station. Shortly afterward he left his train, crossed a number of tracks on his way home, and appeared on the platform of the station hotel with the flesh on his left arm severed below the shoulder and turned back over the elbow. As a result of his injuries he died on the following Tuesday.

The negligence imputed to the railroad company is pleaded in a petition alleging, among other things, that, in the night-time, he had finished his work as brakeman and was traveling southward on foot from the caboose of his train to his home; that he necessarily had to cross a number of tracks whereon there were several strings of cars which obstructed his view; that there was an opening between some of the cars; that he safely crossed part of the tracks between cars in a safe and proper manner, and was about to cross another track, "when he was suddenly struck, thrown and knocked down by a car" moving eastward; that there was no light anywhere on the car; that no notice or warning of its approach was given; that in the dark he did not see it until it struck him; that it was noiselessly and slowly moved along, and he did not know of its movement until he was struck by it; that he was injured without fault or neglect on his part; that the car was on the east end of a string of cars then being moved eastward by one of defendant's engines; that such movement of the car in the dark at the time, without a light, without a brakeman thereon, and without notice or warning of its approach, was a negligent act endangering him and other employees necessarily crossing tracks in going to and from work and in the discharge of their duties; that in crossing the track he was where he had a right to be and was not a trespasser, but was there with the authority and consent and with the knowledge of defendant. Defendant denied negligence on its part, and pleaded that he was injured through his own negligence and want of care. The latter allegation was denied by a reply. The suit was brought by the administrator of his estate for the benefit of his widow and children. From a judgment in favor of plaintiff for $ 20,000, defendant has appealed.

On the face of the record the recovery is excessive, and for that reason the judgment, as rendered, cannot be permitted to stand. On account of the death of decedent, plaintiff was not entitled to recover damages in excess of the pecuniary loss to the wife and the children. Comp. St. 1911, ch. 21, sec. 2. Decedent was 39 years old. His expectancy of life was about 28 years. There is no proof that his earnings had ever exceeded $ 80 a month. After deducting his own living expenses, the present worth of the monthly balances which he would have been able to contribute to his wife and children, had he lived, if computed for the entire period of his expectancy, falls far short of the award of the jury.

It is argued, however, that the prospect of promotion and of an increase in earnings was a proper matter for the consideration of the jury in estimating damages. Whatever may be the merit of this argument as a general proposition, it is clear that decedent's prospect of advancement was, under the circumstances of this case, too remote and speculative to be made the basis of damages. He drank intoxicating liquors. This is shown by the testimony of his own brother and by that of other witnesses. His mother, while inquiring about the incidents of his injury, asked the attending physician if her son had been drinking. For a number of years decedent's time had been given alternately to farming and to braking on railroad trains. What he earned as a farmer is not shown. It ought to be assumed that plaintiff proved his earnings at their best. There is no evidence showing past promotions. In this state of the record, the judgment cannot be sustained on decedent's prospect of advancement in the railway service.

The verdict being excessive, should plaintiff be permitted to remit the excess as a condition of having judgment for the balance affirmed? Defendant insists that there is no evidence of actionable negligence on its part and that it violated no duty owing to decedent. These propositions are met by assertions that eye-witnesses testified to facts showing, in substance, that after decedent left his caboose he was seen attempting to cross a track a few feet from the east end of a string of cars; that they were not in motion at the time that when he was on the track the cars were moved eastward by an engine at the west end of the string; that the night was dark; that he was struck and knocked down by the car on the east end of the string; that there was no brakeman on the car which struck him; that it was moved without having a light thereon and without notice or warning of its approach, and that shortly afterward he came onto the platform of the station hotel injured in the...