Illinois Cent. R. Co. v. Humphries

• Decision Date: 28 October 1935
• Docket Number: 31708
• Citation: 164 So. 22,174 Miss. 459
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. CO. v. HUMPHRIES

164 So. 22

174 Miss. 459

ILLINOIS CENT. R. CO. v. HUMPHRIES

No. 31708

Supreme Court of Mississippi

October 28, 1935

Suggestion Of Error Overruled February 3, 1936.

(In Banc.)

1 DEATH.

In action for death of railroad employee, earnings or income of deceased from business other than employment with defendant held entitled to be considered in determining damages as against contention that such earnings had no relation to interstate commerce, and hence were not within legislative power of Congress (Federal Employers' Liability Act, 45 U.S.C. A., sections 51-59; Const. U.S., article 1, section 8 clause 3).

2. MASTER AND SERVANT.

Under Federal Employers' Liability Act, assumption of risk is complete defense (Federal Employers' Liability Act, 45 U.S.C. A., sections 51-59).

3 NEGLIGENCE.

In action against railroad under Federal Employers' Liability Act, contributory negligence is not complete defense, but is only defense to quantum of recovery and can be used by defendant only in mitigation of damages (Federal Employers' Liability Act, 45 U.S.C. A., sections 51-59).

4. APPEAL AND ERROR.

In action for death of railroad employee, reversal of judgment for retrial on question of damages alone left open for retrial all elements entering into that question, and hence use of evidence in first trial as proof of assumption of risk did not preclude use of same evidence in second trial on issue of contributory negligence, since exclusion of such evidence on second trial would constitute denial of federal right to defendant (Federal Employers' Liability Act, 45 U.S.C. A., sections 51-59).

5 DEATH.

In action for death of railroad employee, evidence as to employee's net profits derived from dairying and farming interests for period of three years prior to his death held admissible on issue of damages (Federal Employers' Liability Act, 45 U.S.C. A., sections 51-59).

6. DEATH.

In action for death of railroad employee, failure to give defendant's cautionary instruction that profits are not to be taken as measure of damages held error (Federal Employers' Liability Act, 45 U.S.C. A., sections 51-59).

ETHRIDGE, J., dissenting, and GRIFFITH and ANDERSON, JJ., dissenting in part.

HON. S. F. DAVIS, Judge.

APPEAL from the circuit court of Holmes county HON. S. F. DAVIS, Judge.

Action by Mrs. Lucy Humphries, executrix of Thomas S. Humphries, deceased, against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

E. C. Craig, of Chicago, Ill., Burch, Minor & McKay, of Memphis, Tenn., A. M. Pepper, of Lexington, and Barbour & Henry, of Yazoo. City, for appellant.

The trial judge erroneously limited the scope of the evidence under defendant's plea of contributory negligence.

Roberts on Federal Liability of Carriers, sec. 858; Norfolk & Western R. R. Co. v. Earnest, 229 U.S. 114; N. O. & N. E. R. R. Co. v. Snelgrove, 148 Miss. 890; K. C. Southern Ry. Co. v. Jones, 241 U.S. 181.

The plea of contributory negligence was not filed until the second trial. The defendant had proceeded on the theory at the first trial that its defense of assumption of risk would defeat the action, but losing on that defense in this court, it then filed its plea of contributory negligence on the second trial and the trial judge admitted evidence under that plea but erroneously limited the scope thereof.

N. O. & N. E. R. R. Co. v. Snelgrove, 148 Miss. 890; 170 Miss. 847.

If the jury had been allowed to hear defendant's evidence and had believed it, to-wit, that the whole railroad was ballasted with cinders, and that cinders might be expected to be found in piles along the right of way at any time and at any point, that Humphries was familiar with this practice of the railroad and that he had assisted with the unloading of cinders on numerous occasions, then the jury might well have concluded that Humphries was guilty of gross contributory negligence in riding on a foot-board with his toes protruding.

Railroad earnings alone are to be taken into consideration in fixing damages--earnings or income from outside business ventures are inadmissible.

Federal Employers' Liability Act; Howard v. I. C. R. R. Co., 207 U.S. 463; Mondou v. New York, New Haven & Hartford R. R. Co., 223 U.S. 1; Wilson v. New, 243 U.S. 332.

The act, as construed by the Supreme Court, has been held to mean that there can be a recovery for pecuniary loss only and there are eliminated such elements of damages as grief, loss of companionship, society, etc. The recovery is limited to the pecuniary loss of the beneficiaries named in the act and in the application of the act the Supreme Court has held that the recovery is further limited to the present worth or value of the pecuniary benefits of which the named beneficiaries are deprived.

Mich. Central R. Co. v. Vreeland, 227 U.S. 59; American R. Co. v. Didricksen, 227 U.S. 145; Gulf, etc., R. Co. v. McGinnis, 228 U.S. 173; North Carolina R. Co. v. Zachary, 232 U.S. 248; Norfolk, etc., R. Co. v. Holbrook, 235 U.S. 625; Chesapeake, etc., R. Co. v. Gainey, 241 U.S. 494; Chesapeake, etc., R. Co. v. Kelley, 241 U.S. 485; Louisville & N. R. Co. v. Holloway, 168 Ky. 262, 246 U.S. 525; Gulf, Colo. & Santa Fe Ry. Co. v. Moser, 275 U.S. 133; Chesapeake & Ohio R. R. Co. v. Russo, 91 Ind.App. 648, 163 N.E. 283.

As it is clear that Congress had no constitutional authority over outside earnings and could not legislate in regard thereto, but could legislate only as to wages paid to employees of railroads engaged in interstate commerce, Congress, in defining liability, could only have had in mind wages earned by the employee while employed in interstate commerce, and could not have had in mind earnings from outside business ventures.

Mondou v. New York, New Haven & Hartford R. R. Co., 223 U.S. 1.

Erroneous measure of damages was adopted. Earnings from invested capital and the labor of others should have been excluded.

155 So. 42.

When it comes to a business in which there are substantial capital and labor of others to a material degree, together with supervision, or even personal direction by one who is injured, the cases, without exception, hold that the income, or profits therefrom, cannot be taken as the basis or measure for awarding damages.

Loschiavo v. Northern Ohio Traction Co., 106 Ohio St. 61, 138 N.E. 372; Baxter v. Philadelphia & R. R. R. Co., 264 Pa. 467, 107 A. 881; Wallace v. Pennsylvania R. Co., 195 Pa. 127, 52 L.R.A. 33, 45 A. 685; Lombardi v. California Street R. Co., 124 Cal. 311, 57 P. 66; Chicago, R. I. & P. R. Co. v. Hale, 186 F. 626; Pryor v. Metropolitan Street R. Co., 85 Mo.App. 367; Gombert v. New York C. & H. R. R. Co., 195 N.Y. 273; Homan v. Franklin County, 90 Iowa 185, 57 N.W. 703; Normandin v. Kansas City, 206 S.W. 913; Silsby v. Michigan Car Co., 95 Mich. 204, 54 N.W. 761; Marks v. Long Island R. Co., 14 Daly (N.Y.) 61; Blate v. Third Ave. R. Co., 29 A.D. 388, 51 N.Y.S. 590; Bierbach v. Goodyear Rubber Co., 54 Wis. 208, 41 Am. Rep. 19, 11 N.W. 514; Dempsey v. Scranton, 264 Pa. 495, 107 A. 877; Masterton v. Mt. Vernon, 56 N.Y. 391; Railway Co. v. Howard, 90 Tenn. 144; 8 R. C. L., page 473; 17 C. J., page 896; Sedgwick on Damages (9 Ed.), sec. 580a.

There was no proof whatever of the condition of health of Mrs. Humphries, the widow, nor of the two children, nor was there any proof as to her life expectancy.

Goodyear Yellow Pine Co. v. Anderson, 157 So. 700.

P. P. Lindholm, of Lexington, and J. G. Holmes, of Yazoo City, for appellee.

Submission to jury on second trial of question of deceased's contributory negligence was more favorable to appellant than appellant was entitled to under the law.

Contributory negligence submitted as defense by instruction granted defendant on first trial and decided by jury adversely to defendant.

Norfolk & Southern R. R. Co. v. Ferebee, 238 U.S. 269, 59 L.Ed. 1303; I. C. R. R. Co. v. Humphries, 155. So. 421.

Burden of proof of contributory negligence was on defendant, and there was no evidence of contributory negligence on either trial.

M. & O. R. R. Co. v. Campbell, 114 Miss. 803; Seaboard Air Line R. R. Co. v. Moore, 228 U.S. 433; Central of Vt. R. R. Co. v. White, 238 U.S. 507; 59 L.Ed. 1433.

Damages are not limited to railroad earnings alone.

St. Louis & I. M. R. R. Co. v. Craft, 237 U.S. 648, 59 L.Ed. 1478.

Duties of common carriers in respect of safety of their employees while both engaged in interstate commerce, and liability for former to latter while both so engaged, have a real or substantial relation to such commerce and are within the range of power of Congress.

Mondou v. New York, New Haven & Hartford R. R. Co., 223 U.S. 1; R. R. Retirement Board et al. v. Alton R. R. Co. et al., decided by Supreme Court of U.S. May 6, 1935.

Question of proper measure of damages inseparably connected with right of action and in cases arising under Federal Employers' Liability Act must be settled according to general principles as administered in federal courts.

Chesapeake & Ohio Ry. v. Kelly, 241 U.S. 485.

Damages are limited only to pecuniary loss of beneficiaries, including (1) present pecuniary value of lost contributions from all legitimate sources, (2) present pecuniary value of lost services of husband to wife, (3) present pecuniary value of lost education for children, and (4) present pecuniary value of lost care, counsel and training, for children.

Chesapeake & Ohio R. R. Co. v. Russo, 91 Ind.App. 648, 163 N.E 283; Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 57 L.Ed. 417; Am. R. Co. v. Didricksen, 227 U.S. 145, 57 L.Ed. 456; Gulf, etc., R. Co. v. McGinnis, 228 U.S. 173, 57 L.Ed. 785; N. C. R. Co. v. Zachary, 232 U.S. 248, 58 L.Ed. 591; Norfolk,...