New Orleans & N.E. R. Co. v. Snelgrove

• Decision Date: 12 December 1927
• Docket Number: 26753
• Citation: 148 Miss. 890,115 So. 394
• Parties: NEW ORLEANS & N.E. R. CO. v. SNELGROVE. [*]
• Court: Mississippi Supreme Court

115 So. 394

148 Miss. 890

NEW ORLEANS & N.E. R. CO. v. SNELGROVE. ^[*]

No. 26753

Supreme Court of Mississippi

December 12, 1927

Division B

Suggestion of Error Overruled Jan. 9, 1928.

APPEAL from circuit court, of Lauderdale county. HON. J. D. FATHEREE, Judge.

Action by Mrs. Janie D. Snelgrove, administratrix of the estate of S. A. Snelgrove, against the New Orleans & Northeastern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed, with remittitur; otherwise, reversed.

The statement of the case follows:

Appellee as plaintiff, instituted this action in the circuit court of Lauderdale county, against appellant, as defendant, under the Federal Employers' Liability Act. S. A. Snelgrove, a railroad brakeman of the defendant company, while in the performance of his duties, was fatally injured during a switching movement of a local freight train at Enterprise Miss., on February 19, 1926, while the defendant was engaged at the time in interstate commerce. Snelgrove was caught between two cars moving in the same direction on tracks leading towards a switch, and was crushed through the chest and body, and died the same day in a hospital at Meridian, after several hours of conscious pain and suffering.

At the time of his fatal injuries the deceased was forty-one years of age, in good health, a railroad man by profession, was earning from one hundred eighty dollars to one hundred ninety dollars per month, and had been regularly employed by the defendant company for nine or ten years. He left surviving him his wife, appellee herein, and two children, one a married daughter, not dependent upon her father, and the other a boy nineteen years of age. The widow was thirty-six years old at the time of his death, and wholly dependent upon her husband for support and maintenance. The deceased, with his family, lived in a rented home in the city of Meridian. Out of his earnings he expended about twenty-five dollars per month for his own benefit, and the balance was consumed in the payment of rent and living expenses for himself, his wife, and minor son, and he occasionally contributed something to his married daughter. He had an expectancy of approximately twenty-seven years. There was a verdict and judgment for appellee of fifty thousand dollars. One of the several assignments of error, and the only one discussed in the opinion of the court, is based upon the contention that the verdict is grossly excessive, and manifestly based upon passion and prejudice of the jury.

Editor's Note: Messrs. Bozeman & Cameron filed an elaborate brief for the appellant on many assignments of error, but the only point discussed in the opinion of the court is the excessive verdict. Their observations on this assignment of error are in brief as follows:

The verdict of the jury, fifty thousand dollars, is grossly excessive and manifestly based upon the passion and prejudice of the jury, and not upon the testimony and was manifestly returned under the influence of the juror Brown erroneously permitted to sit in this case.

If by any chance this court shall fail to sustain our contention that no actionable negligence has been proven, or our contention that Snelgrove assumed the risk of his injury; still, it must be apparent from the testimony that Snelgrove was guilty of gross contributory negligence, and that for this and other reasons the verdict is grossly excessive.

The maximum wages that Snelgrove was earning at the peak of his earning capacity--forty-one years of age (p. 121) was one hundred sixty to one hundred eighty dollars per month (p. 127) out of which he used about twenty-five dollars per month for his own benefit (p. 132) and out of the balance--say one hundred fifty dollars average--he paid the rent and household expenses for his wife and his minor son and contributed something to a married daughter. It would be favorable to plaintiff to assume that one-third of this amount was necessary for Snelgrove himself and that the widow and practically grown children received the benefit of the remaining two-thirds, being one hundred dollars per month, or twelve hundred dollars per annum.

Certainly Snelgrove's activity and earning capacity in the hazardous employment of a railroad brakeman could not have extended much beyond the age of fifty years--some ten years--and it must have gradually diminished as he grew older and these facts should not have been ignored in returning the verdict.

The sum of twenty thousand dollars invested at six per cent would have produced an annual income--the full expectancy--of twelve hundred dollars a year for the beneficiaries for the life of the beneficiaries without diminution of the principal.

But under the Federal rule and Act it is only the present cash value of the reasonable expectation of pecuniary advantage to the beneficiary while dependant, and this would be less than the gross sum which put out at interest would produce the annual income without diminution of the principal. There is no proof in the record of the expectancy of Snelgrove, and that even is left speculative. Certainly the present cash value of the pecuniary loss was much less than twenty thousand dollars.

It is true that under the Federal Act recovery may also be had for conscious pain and suffering. While there is testimony that Snelgrove gave some manifestations of suffering during the ten hours that he lived after the injury, still it is also in evidence that Snelgrove suffered such a profound shock at the time of injury that it not only stopped his bleeding, but mercifully dulled his sense of suffering and pain. And in addition thereto the record shows that he was under the constant care of physicians, who administered to him such opiates as were necessary to relieve his suffering. Taking into consideration all these facts, and the contributory negligence of Snelgrove shown by the record, we submit that the verdict, if by any possibility it can stand at all, is grossly excessive in amount and that the judgment thereon should be reversed.

Judgment affirmed; otherwise, reversed. Suggestion of error overruled.

C. B. Cameron and Reily & Parker, for appellee.

Frankness and candor requires us to admit that a large verdict was returned in this cause; in fact, this verdict is the largest personal injury award known to the jurisprudence of this county.

Two elements of damages were involved, namely: 1. The present value of the pecuniary loss to wife and minor child of the deceased. 2. Recovery for conscious pain and suffering endured by deceased from time of injury to death.

Snelgrove was a valued employee of the appellant; he left surviving him a widow and two children--one a girl, but married and non-dependent upon her father; the other a boy, nineteen years of age at the time of the death of his father and dependent upon him. The wife was thirty-six years old at the time of his death, and wholly dependent upon her husband for the necessities and comforts of life. Snelgrove was forty-one years, and three months old at the time of his death and in perfect health.

He was a railroad man by profession, and had served the appellant well in his line of duty. He made the supreme sacrifice while endeavoring to earn and stipend allowed by appellant of approximately one hundred eighty to one hundred ninety dollars per month. He had worked regularly for this appellant for nine or ten years, and by common knowledge apparently was eligible for promotion at higher rate of pay.

His personal expenditures are conclusively shown to have been approximately twenty-five dollars per month; the balance of his earnings were delivered to his wife on each pay day, and consumed in the support of his wife and home, including his children.

They lived in a rented house in the city of Meridian, for which twenty-three dollars was paid monthly. The deceased carried his lunch out on the road with him, and would not eat his dinner until he returned from Hattiesburg about two-thirty or three o'clock in the afternoon. This man slept in his caboose on the other end of the line. These incidents reflect the frugality of the deceased, and shed light on his personal expenditures and habits.

The average expectancy of a man forty-one years old as told us by American Experience Mortality tables is approximately twenty-seven years. Figure wages for deceased at one hundred eighty dollars per month and deduct therefrom twenty-five dollars per month for personal living expenses, an earning of one hundred fifty-five dollars accruing to dependents remains, or a total of eighteen hundred sixty dollars for one year.

To this amount must be added an allowance for the conscious pain and suffering of deceased endured for approximately ten or eleven hours prior to death.

This last item of damages have been heretofore commented on by this court in the following cases: Railroad Company v Wallace (1907), 91 Miss. 492--a thirty thousand-dollar verdict permitted to stand. Man twenty-six years old, earning only seventy-five to ninety dollars per month. In this case the supreme court of Mississippi quoted from the case of Hardy v. N. O. R. R. Co., 88 Miss. 732, 41 So. 505. Easterling Lbr. Co. v. Pierce (1914...