As
Modified, on Denial of Rehearing, April 18, 1929.
Appeal
from Circuit Court, Mobile County; Saffold Berney, Judge.
Action
for damages for wrongful death by Myrtle Williams, as
administratrix of the estate of Mose R. Williams, deceased
against the Mobile & Ohio Railroad Company. From a judgment
for plaintiff, defendant appeals. Reversed and remanded.
Requested
charge, that negligence cannot be proved by circumstantial
evidence, unless circumstances are shown, held
properly refused as argumentative.
The
complaint is as follows:
"Count
1. The plaintiff, as administratrix of the estate of Mose
R. Williams, deceased, claims of the defendant $50,000 as
damages, for that, heretofore, to-wit, on the second day of
March, 1926, the plaintiff's intestate, Mose R
Williams, being then and there an employee of the
defendant, which was then and there a common carrier
railroad, engaged in interstate commerce, and while the
plaintiff's said intestate was engaged under said
employment in such interstate commerce, he was run over and
killed by one of the defendant's cars, by reason of
and as a proximate result of the negligence of another of
the defendant's employees in the operation of said car,
while acting within the line and scope of his employment,
and the plaintiff avers that the said Mose R. Williams left
surviving him a widow and dependent children, for whose
benefit this suit is brought.
"Count
2. The plaintiff, as administratrix of the estate of Mose
R. Williams, deceased, claims of the defendant $50,000, as
damages, for that, heretofore, to-wit, on the second day of
March, 1926, the plaintiff's intestate, Mose R.
Williams, being then and there an employee of the
defendant, which was then and there a common carrier
railroad, engaged in interstate commerce, and while the
plaintiff's said intestate was engaged under said
employment in interstate commerce, he was run over and
killed by one of the defendant's cars, by reason of,
and as a proximate result of the negligence of the
defendant, or of its servant or servants, in the operation
of said car, while acting within the line and scope of his
or their authority, and the plaintiff avers that the said
Mose R. Williams, left surviving him, a widow and dependent
children, for whose benefit this suit is brought."
The
following charges were given at the request of plaintiff:
"2.
The court further charges the jury that in order to
ascertain the amount of the capital that would be necessary
to produce a gross annual income of any given amount, for
thirty-two and one-half years (32 1/2) years, upon the
basis of an investment at any of the
rates of interest mentioned in the evidence, it would only
be necessary to modify the capital in the same proportions
that the amount of the annual income to be produced bears
to One and no/100 ($1.00) Dollars."
"3.
The court charges the jury that if they believe from the
evidence that the death of Mose R. Williams was the
proximate result of the negligence of any of the
defendant's employees, while acting within the line and
scope of their employment, and that Mose R. Williams, was
at that time employed by the defendant and engaged in an
Interstate Commerce operation, and that he left a dependent
wife and children, then the plaintiff is entitled to
recover in this case, whether he was, at the moment that he
was killed, engaged in the actual performance of a duty
under said employment or not."
"5.
The court charges the jury that it is negligence for any
employee of a railroad company to violate any of the rules
which the railroad company has established and which is
then in force for the operation of its trains and for the
protection and safety of its employees."
"7.
The court charges the jury that if they believe from the
evidence that reasonable safety to the trainmen employed by
the Mobile & Ohio Railroad Company at the time of the death
of Mose R. Williams, required the establishment of some
rule by the Mobile & Ohio Railroad Company, by which its
employees, who were charged with the duty of starting
trains upon their journey, were required, before doing so,
to assure themselves that none of the train crew was then
under the train performing some of their duties and if they
further believe that the Railroad Company had neglected to
establish such rules, then such failure would constitute
negligence on the part of the Railroad Company."
"9.
The court charges the jury that whenever a person is
employed by a Railroad Company in the operation of a train
in interstate commerce, and while he is so engaged he is
killed, by reason of the negligence of any of the other
employees of that railroad, acting within the line and
scope of their employment, and the person who is killed
leaves a dependent widow or dependent children, to
administrator of the person so killed is entitled to
recover of the Railroad Company, such a sum of money as
will, when invested with ordinary care, produce each year
such a sum of money as the widow and children would have
realized from the earnings of the husband during that year,
that is to say, that the administrator would be entitled to
recover a sum of money which, if properly invested, would
pay to the widow each year the amount that she would have
realized that year from the earnings of her husband during
his lifetime, plus such a sum of money as each minor child
would have realized the benefit of during each year from
their father's earnings as long as he lived and they
were minors and dependent upon him, plus the value of
whatever sum of money which, if so invested, would produce
at the time of the husband's death whatever sum, if
any, the husband would have accumulated from his savings
out of his earnings, and which his widow and children would
have inherited at his death."
"10.
The Court charges the jury that the question as to whether
Mose R. Williams was between the cars of the
defendant's train or under the defendant's train at
the time that the train in question moved and whether the
movement of the train, was the proximate cause of his
death, is a question which the jury must determine from the
evidence in the case, and in doing so, the jury may look
both to positive and direct testimony, and also to all of
the circumstantial evidence that may be before them, and if
in doing so, they find that there were duties imposed upon
Mose R. Williams by the rules of the defendant corporation,
which made it necessary for him to be between the cars or
under the train at that time in performance of a duty,
under his employment then the jury may, if they think
proper to do so under all of the circumstances shown by the
evidence, presume that he was between said cars, or under
said train at that time in performance of that duty."
"14.
The Court charges the jury that if they should find a
verdict for the plaintiff in this case, they will first
determine what amount the plaintiff in the case would have
been entitled to recover if the judgment had been rendered
immediately after the appointment of the plaintiff as
administratrix of the estate of Mose R. Williams, deceased,
and they will then add thereto, interest at the rate of
eight per cent (8%) per annum from the date suit was filed
in this cause to the rendition of the verdict."
"15.
The court charges the jury that if they believe that Mose
R. Williams was employed by the defendant in Interstate
Commerce and was killed while so engaged, as the proximate
result of the negligence of another of the defendant's
employees, acting within the scope of his duty, and left
surviving him a dependent widow and children, then the jury
should find a verdict for the plaintiff, for such an amount
as, when invested with reasonable safety and without the
exercise of any unusual skill, would, from year to year,
indemnify the dependent widow and children of Mose R.
Williams against any financial loss that they would suffer
by reason of his earning capacity being cut off by
death."
"17.
The court charges the jury that the rule for calculating
the measure of damages in this case, if the jury find for
the plaintiff, is definitely fixed by the law and is such
an amount as would, when invested, with reasonable safety
and at such rate of income as the jury may find that
plaintiff could, invest the same without the exercise of
unusual skill, produce each year an amount that the
widow and children, during the dependency, would have
realized during that year from the earnings of the
deceased, Mose R. Williams, if he had lived, either by way
of benefits derived directly from the moneys so earned, or
by reason of inheritance from him at the time of his death,
of property that he would have accumulated from such
earnings after the date that he was killed."
The
following requested charges were refused to defendant:
"15
1/2. The Court charges the jury that should you find for
the plaintiff, then in considering your verdict on the
question of damages, and under the special issues submitted
to you in that connection, and thereunder in determining
what sum of money as if paid in cash at this time would be
sufficient to fairly compensate the surviving wife and
children, for their pecuniary loss, you are instructed that
in determining the present value of such contributions as
plaintiff would probably have received from the continued
life of the deceased you will make your calculations on the
basis of the amount of your award, bearing interest at the
highest net rate of interest that the testimony shows can
be had on money safely invested, and secured as shown by
the testimony in this case."
"18.
The Court charges the jury that negligence cannot be proved
by
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