Louisville & N.R. Co. v. Holloway's Adm'r

• Decision Date: 03 February 1916
• Citation: 181 S.W. 1126,168 Ky. 262
• Parties: LOUISVILLE & N. R. CO. v. HOLLOWAY'S ADM'R. [a1]
• Court: Kentucky Court of Appeals

181 S.W. 1126

168 Ky. 262

LOUISVILLE & N. R. CO. v. HOLLOWAY'S ADM'R. ^[a1]

Court of Appeals of Kentucky.

February 3, 1916

Appeal from Circuit Court, Henderson County.

Action by John G. Holloway's Administrator against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See also, 163 Ky. 125, 173 S.W. 343.

N Powell Taylor and John C. Worsham, both of Henderson, and Benjamin D. Warfield, of Louisville, for appellant.

Clay &amp Clay, of Henderson, for appellee.

CARROLL J.

In May 1912, John G. Holloway, a locomotive engineer in the service of the appellant railroad company, while operating a freight train between Pensacola, Fla., and Montgomery, Ala., was killed in a collision between his train and a work train. His administrator qualified in Henderson county, Ky. and instituted this action in that county under the federal Employers' Liability Act, to recover damages for his death. On the first trial of the case there was a verdict and judgment for $32,900, but on appeal to this court, the judgment was reversed, in an opinion that may be found in 163 Ky. 125, 173 S.W. 343. On the return of the case to the lower court there was a retrial, with a verdict and a judgment thereon for $25,000, to reverse which this appeal is prosecuted.

It does not appear necessary to state with any elaboration the facts surrounding the collision in which Holloway lost his life, because there was sufficient evidence to warrant the jury in finding that Holloway while free from contributory negligence came to his death on account of the negligence of the flagman of the work train with which the engine Holloway was on collided. And this issue of fact was submitted to the jury under proper instructions, and the jury necessarily found that the negligence of the flagman was the direct cause of the collision. But, briefly, the evidence shows that the work train had stopped at a point between two stations; that it was the duty of the flagman of the work train to go back the distance required by the rules and stop the freight train in charge of Holloway by signals and torpedoes, and that he failed to give the required signals, or any signals; that Holloway not being warned of the presence of the work train on the track at the place where the collision occurred, was going a good rate of speed when his engine, while rounding a curve in the track, ran into the work train. On the former appeal the judgment was reversed: First, because it was not alleged or proven that the widow of Holloway, who left no children surviving him, had, during his life, received any pecuniary benefits from him, or that she had any expectation of receiving any from him in the future if he had not lost his life; and, second, for error in the instructions. On a return of the case an amended petition was properly allowed to be filed, setting up that the decedent, Holloway, and Myrtle S. Holloway, the person for whose benefit the action was instituted, were married and lived together as husband and wife and were so living at the time of his death; that Myrtle Holloway, at the time of the death of the decedent, "had a pecuniary interest in his life and in his estate and was dependent upon him for maintenance and support, and by his death she suffered a pecuniary loss of $50,000, the amount claimed in the original petition"; and the evidence introduced on the trial, to be later noticed with more fullness, showed beyond question that the widow was dependent upon the deceased for maintenance and support and had a pecuniary interest in his life, and that by his death she sustained a pecuniary loss.

Some question is raised by counsel that the amended petition, as well as the evidence under it, was insufficient to meet the requirements of the federal statute, because it failed to specifically point out the particulars in which she suffered a pecuniary loss on account of his death, or the amount of pecuniary benefits she had received from him during his life, or the amount she had reasonable expectation of continuing to receive if he had lived. But we do not find any substance in this criticism of the amended petition or of the insufficiency of the evidence offered in support of it. Under the federal statute as construed by the Supreme Court of the United States in Norfolk & Western Ry. Co. v. Holbrook, 235 U.S. 625, 35 S.Ct. 143, 59 L.Ed. 392, there can only be a recovery for a pecuniary loss; but we think that when the petition shows the relation of the dependent to the deceased, a general averment that the person for whose benefit the action was brought was dependent upon the deceased and had a pecuniary interest in his life and suffered a pecuniary loss by his death is sufficient, without setting out in detail the reasons showing the dependency or the extent of the pecuniary loss. When an issue is formed on this question, it then becomes a matter of evidence, and the nature of the dependency and the extent of the pecuniary loss may be developed.

It is also insisted that the trial court did not have jurisdiction of the subject-matter of the action, for the reason that, contrary to the requirements of the federal Constitution, the state law permits three-fourths or more of the jurors to return a verdict, which will have the same force and effect as if it had been returned by the entire panel. This identical question has been disposed of adversely to the contention of counsel for the appellant by this court in C. & O. Ry. Co. v. Kelly's Adm'x, 161 Ky. 655, 171 S.W. 185; L. & N. R. R. Co. v. Johnson's Adm'x, 161 Ky. 824, 171 S.W. 847, and L. & N. R. R. Co. v. Stewart's Adm'x, 163 Ky. 823, 174 S.W. 744. In the Kelly Case the reasons for the holding of the court are stated at length, and need not be repeated here. But in order to save to appellant the right to raise this question on appeal to the Supreme Court of the United States, if it desires to prosecute an appeal, we again affirm that the state law is not violative of the federal Constitution, and that in cases arising under the federal Employers' Liability Act the trial courts of this state have jurisdiction, and it is proper to instruct the jury--

"that if all 12 cannot agree on a verdict, as many as 9 may agree and return a verdict, but if less than 12 and as many as 9 agree on a verdict, those who agreed to it must sign it."

It might, however, be here further noticed that the verdict was agreed to by the full jury of 12.

The instruction on the subject of the measure of damages and the diminution thereof in proportion to the contributory negligence of the decedent, if any, is also criticized; but, in our opinion, it answered fully all of the requirements of the federal statute as construed by the Supreme Court, and also conformed to the rule laid down by this court in C., N. O. & T. P. Ry. Co. v. Goode, 163 Ky. 60, 173 S.W. 329. The instruction reads:

"The court further instructs you that, even though you may believe from the evidence that the defendant by or through its officers, agents, or employers was guilty of negligence as above defined, if any there was, yet if you shall further believe from the evidence that the deceased, John G. Holloway, was also negligent, that he failed to keep a lookout for signals, if he did so fail, or failed to use ordinary care to stop his train after discovering the work train was on the track, or failed to exercise ordinary care to leave his train and prevent injury to himself, if he did so fail, after discovering the danger, if any, and that but for such contributory negligence, if any, the accident and injury would not have occurred and his death resulted, yet such contributory negligence, if any, will not bar or prevent recovery by the plaintiff under the second instruction; but in such event the damages, if any, shall be diminished by the jury in proportion to the amount of negligence, if any, attributable to the said John G. Holloway by reason thereof. So that the plaintiff will not recover full damages, but only a proportional part, bearing the same relation to the full amount as the negligence attributable to the defendant bears to the entire negligence attributable to both the said Holloway and the defendant."

The principal ground, however, urged for reversal is that the damages are excessive. On the subject as to what damages might be allowed, the court told the jury that, if they found for plaintiff, the measure of recovery was--

"such an amount in damages as will fairly and reasonably compensate the widow of the said John G. Holloway, deceased, for the loss of pecuniary benefits she might reasonably have received if the deceased had not been killed."

This instruction of course was to be read in connection with the instruction on contributory negligence, under which the jury was authorized, if they believed the deceased was guilty of such negligence, to diminish the amount of the recovery according to the rule laid down in the instruction on this subject. The Supreme Court of the United States, in North Carolina Ry. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann.Cas. 1914C, 159; Michigan Central R. R. v Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, Ann.Cas. 1914C, 176; Gulf, Colorado, etc., Ry. v. McGinnis, 228 U.S. 173, 33 S.Ct. 426, 57 L.Ed. 785; Garrett v. L. & N. R. R., 235 U.S. 308, 35 S.Ct. 32, 59 L.Ed. 242; and Southern Ry. v. Leslie, 238 U.S. 599, 35 S.Ct. 844, 59 L.Ed. 1478, and in many other cases, has held that the damages are limited to the pecuniary loss sustained by the beneficiary, and the instruction on this subject was correct, as it limited the jury to the ascertainment of such a sum as would compensate the widow for the loss of the pecuniary benefit she might have received if the...