Kriss v. Union Pacific Railroad Company

• Decision Date: 05 February 1917
• Docket Number: 19065
• Citation: 161 N.W. 414,100 Neb. 801
• Parties: ELIZABETH L. KRISS, ADMINISTRATRIX, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY, APPELLANT
• Court: Nebraska Supreme Court

161 N.W. 414

100 Neb. 801

ELIZABETH L. KRISS, ADMINISTRATRIX, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY, APPELLANT

No. 19065

Supreme Court of Nebraska

February 5, 1917

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Affirmed on condition.

Affirmed on condition.

Edson Rich and A. G. Ellick, for appellant.

Sullivan Rait & Thummel, contra.

SEDGWICK J. HAMER, J., dissenting.

OPINION

SEDGWICK, J.

The plaintiff, as administratrix of the estate of her deceased husband, John J. Kriss, brought this action in the district court for Douglas county to recover damages for the alleged negligence of the defendant causing the death of the decedent. She recovered $ 18,137.16, and the defendant has appealed.

The decedent lost his life in a collision of two of the trains of the defendant, and the defendant submitted the case to the jury, conceding its liability, and contesting only the amount of the recovery.

The principal ground urged by the defendant for a reversal is the misconduct of the plaintiff's attorney in his closing address to the jury. The plaintiff's attorney, among other things, urges that his remarks complained of were induced by the prior remarks to the jury by the defendant's attorney. These respective attorneys are, and long have been, among the leading and influential members of the bar of this state, and, from the view that we take of this record, we are fortunate in not being required to comment upon the propriety of the language complained of. The address to the jury of the defendant's attorney is not in the record; but the plaintiff's attorney insists that the character of his address sufficiently indicates the conditions which he was required to meet as brought on by the defendant's attorney. No objections were made to the remarks complained of, and no rulings of the court were asked thereon by the defendant's attorney. Under ordinary circumstances, the general rule is that counsel cannot remain quiet and seemingly approve of what is being done, or at least to acquiesce in it, and afterwards obtain a reversal of the case because of matters not objected to at the time. The exception to this rule in cases of this kind is well stated by SULLIVAN, J., in Chicago, B. & Q. R. Co. v. Kellogg, 55 Neb. 748, 76 N.W. 462: "We do not, however, wish to be understood as holding that a rebuke from the court, or even a complete retraction by the offending counsel, is in all cases of this kind a sovereign remedy. If the transgression be flagrant--if the offensive remark has stricken deep, and is of such a character that neither rebuke nor retraction can entirely destroy its sinister influence--a new trial should be promptly awarded, regardless of the want of an objection and exception." The address of plaintiff's attorney to the jury is quoted at length in the record, and it appears that he continually assumed, at least in this address, that the condition of the record and the prior remarks of the defendant's attorney justified the language which he was using. If a seasonable objection had been interposed to these remarks, this question of justification in using them would necessarily have been presented to the court, and the decision thereon of the learned judge who tried this case would have carried great weight with this court, and the determination of the trial court as to the rights of the respective counsel and the propriety of the remarks complained of would, without doubt, have been regarded and complied with by all counsel interested in the case. We think that without regard to the general character of these remarks, which appear to have run through the entire address, the defendant is not now in a position to ask for a reversal of the judgment on these grounds.

The question whether the judgment is excessive remains to be considered. The defendant contends that the damages allowed by the jury were augmented by an error of the court in an instruction to the jury. The court prepared instruction No. 11 to be given to the jury, in which he told the jury: "To enable you to better understand the method of arriving at the present worth of a given sum, the court gives you an illustration by way of example: If it was desired to find what the present worth of $ 100 due in one year on the basis of money being worth 5 1/2 per cent. (the amount agreed on by the parties for the purposes of this case), you would divide $ 100 by $ 1.055, that being the interest on $ 1 for one year plus the $ 1. The result of such division would be $ 94.78 plus, which is the present value of $ 100 due in one year. If $ 100 is due in two years, on the basis of 5 1/2 per cent. the present worth would be found by dividing $ 100 by $ 1.11; the $ 1.11 being the interest for two years plus the $ 1. For the period of three, or subsequent years, the present worth may be found by applying the same rule. The aggregate of these sums for the different periods would be the present worth." The parties entered into a stipulation: "It is agreed that neither party will except to the formula as a basis upon which to figure the present worth as given by the court in its instruction No. 11." After the jury had considered the case for some time, they sent to the court an inquiry in writing: "Honorable Judge--Sir: Please give us, the jury in this case, the present value of $ 31,620, and oblige the jury. Ed Porter, Foreman. P. S. Life expectancy 31 years at $ 85 per month. E. P." It appears from the request for information submitted by the jury that the jury had already determined the expectancy of the decedent, and the amount of his contribution to the support of the widow and her children. It was when the counsel attempted to estimate the present worth of the sum indicated by the jury upon the basis of the court's instruction No. 11 that the question arose. Thereupon the defendant's counsel asked to withdraw from the agreement not to except to instruction No. 11 containing the formula, and asked for time to prepare a showing in support of the application. The court denied "the right to make any further showing at this time," because the jury, after having deliberated for some time, had agreed upon the facts necessary to a complete verdict, and had merely asked for instruction as to the legal method of calculating the amount of the present worth. It was also stipulated by the parties: "That in figuring the present worth of a given sum to be paid in annual instalments in the future the jury may base their calculations upon the rate of 5 1/2 per cent."

The plaintiff's counsel contends that the rate of interest at 5 1/2 per cent. is altogether too large, and that, if the stipulation in regard to the formula for computing the present worth was withdrawn and the correct rule for such computation was given to the jury, the stipulation fixing the rate of interest at 5 1/2 per cent. ought also to be changed. There is evidence in the record that these two stipulations were both agreed upon during the trial of the case and that one is the consideration for the other. This evidence, so far as we have observed, is not denied. There is room for a difference of opinion as to the rate of interest that may be obtained upon investments.

There is evidence tending to show that the rate of 5 1/2 per cent. is altogether too large. Because of these two stipulations the plaintiff neglected to produce evidence as to the proper rate. It may be that if the correct rule of computing the present worth had been given to the jury, instead of the rule agreed upon as announced in instruction No. 11, and evidence had been taken as to the usual rate of interest upon such investments, the result would have been substantially the same; that is, it seems to have been assumed by counsel that one stipulation would offset the other, and perhaps they were not far wrong in so considering. At all events, the court was right in refusing to allow one stipulation to be withdrawn and the other to stand.

The defendant asked the court to instruct the jury that the "children at a certain age may become self-supporting and would not have received any pecuniary benefit from the said John J. Kriss at that time had the said John J. Kriss lived," and, that "you are entitled to consider whether or not the annual earning power of the said John J. Kriss near the end of his probable life expectancy would be as great as it was at the time of his death, and as to whether or not the amount that he would probably contribute to the support of his wife and children would have been as great near the end of his life expectancy as it was at the time of his death." The instructions given by the court were general and contained the following: "In considering this, it is proper for you to consider the age of the deceased, and the age of his widow and children, and from all the facts and circumstances proved determine what sum the deceased would probably have contributed to the financial benefit of his wife and children during the remainder of his life had he lived." It would have been quite proper to have informed the jury that decedent's earnings might have increased or decreased, and that the children might have become more or less dependent upon their father as time went on. But this seems to have been made clear to the jury during the trial, and the instructions requested did not so fully state the propositions as to make them competent without further instructions. We do not think it is so clear that he refusal of this request was prejudicially erroneous as to require a reversal.

Decedent was earning $ 110 a month. The jury found that he would devote $ 85 to the support of his family and $ 25 to his own support. From a computation, taking the amount they allowed the widow as a basis, they must...