Jeffries v. Seaboard A.L.R. Co.

• Decision Date: 12 November 1901
• Citation: 39 S.E. 836,129 N.C. 236
• Parties: JEFFRIES v. SEABOARD A. L. R. CO.
• Court: North Carolina Supreme Court

39 S.E. 836

129 N.C. 236

JEFFRIES v. SEABOARD A. L. R. CO.

Supreme Court of North Carolina

November 12, 1901

Appeal from superior court, Franklin county; Coble, Judge.

Action by Carrie Jeffries, by her next friend, against the Seaboard Air Line Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The duty of an engineer to check the speed of his train in order to avoid injuring a child on the track arises when, in the exercise of reasonable care, the engineer should have first perceived the child, and not at the time when he actually saw it, though his attention was distracted by his duties, as in that event it is incumbent on the railroad company to employ sufficient assistants to maintain a proper lookout.

C. M Cooke, W. H. Day, J. B. Batchelor, and Battle & Mordecai, for appellant.

F. S Spruill and B. B. Massenburg, for appellee.

CLARK J.

Carrie Jeffries, three years old, while straying upon defendant's track, was injured by its locomotive, causing the loss of her right arm at the shoulder. Some of the defendant's exceptions, taken out of abundant caution on the trial, were properly abandoned here, and we will only discuss those insisted on in the argument, though we have examined them all.

The first exception was to the admission of evidence that the child had no property and no source of income. This, standing alone, might have been irrelevant testimony, and the admission of such is no error, unless it is injurious to the party excepting. Waggoner v. Ball, 95 N.C. 323; Deming v. Gainey, 95 N.C. 528; Patterson v Wilson, 101 N.C. 594, 8 S.E. 341. But the next question elicited the fact that a cook was worth, in that section, $2 to $3 per month and board, and 10 cents per day was allowed for board; that a woman field hand was worth 35 to 40 cents per day and board. The object and pertinency of the evidence were to show what this child, with no source of income and no means of education, would have been worth to herself later in life, if uninjured, in the humble vocations of cook or field hand, which are occupations within the probable reach of the illiterates of her sex. The defendant certainly has no cause to complain. In Railroad Co. v. Shipley, 31 Md., at page 374, the court, holding that evidence was competent that plaintiff was the son of a laboring man and a mechanic, well says: "If, in fixing the amount of damages, the jury are to estimate to what extent the injury has disabled the plaintiff from engaging in such mechanical or other laborious employments or pursuits as but for the injury he would have been qualified for, we do not see why they should not be informed by evidence that his position and reasonable expectations in life were such as would render such pursuits probable and necessary for a livelihood." The court go on to say that if it had been attempted to use this evidence merely to show poverty, and appeal to the prejudices of the jury, exceptions should be made to any argument on that line and a special instruction might also be asked confining the testimony to its legitimate purpose. Nothing of that kind appears in the present case, and the evidence was clearly competent for the purpose just stated.

Many other cases hold that evidence of the condition in life of the party injured may be shown as one of the factors in determining how much money loss has been caused him by the jury. Winters v. Railroad Co., 39 Mo. 468; Railroad Co. v. Martin 41 Mich. 671, 3 N.W. 173; Express Co. v. Nichols, 33 N. J. Law, 437, 97 Am Dec. 722, in which the court says: "The plaintiff was an architect,-a business depending on his personal services as much as that of a common laborer, a clerk, or a mechanic,-and his emoluments were the result of his own earnings. By reason of the injuries he received, he was for a time incapacitated from pursuing his occupation, and sustained damages by reason thereof. These damages resuited proximately from the wrongful act of the defendant's servants, and obviously should be included in the compensation to be awarded to him. To what extent he had sustained pecuniary injury in that respect must depend upon the nature and extent of his business, and the jury would not be in a condition to reach any correct conclusion on that subject, unless they had before them some evidence of the value of the services to himself." In Stafford v. City of Oskaloosa, 64 Iowa, 258, 20 N.W. 174, it was held that where a physician was disabled by an injury to earn a livelihood, it was competent to show his earning capacity in the practice of his profession. In Simonson v. Railroad Co., 49 Iowa, 94, it was held competent to show that an unskilled laborer had no other source of income than his earnings as such. In Railway v. Falvey, 104 Ind. 409, 3 N.E. 389, 4 N.E. 908, it is said the jury may consider as an element of damages "the professional occupation, if any, of the plaintiff, and her ability to earn money, and she will be entitled to recover for any permanent reduction of her power to earn money by reason of her injuries." It is a truism that, whether it is a professional man or skilled laborer who is...