Railway Co. v. Maddry

• Decision Date: 18 February 1893
• Citation: 21 S.W. 472,57 Ark. 306
• Parties: RAILWAY CO. v. MADDRY
• Court: Arkansas Supreme Court

21 S.W. 472

57 Ark. 306

RAILWAY CO. v. MADDRY

Supreme Court of Arkansas

February 18, 1893

Appeal from Hot Spring Circuit Court, ALEXANDER M. DUFFIE, Judge.

Mary E Maddry, as administratrix of the estate of her deceased husband, W. T. Maddry, brought suit against the St. Louis Iron Mountain & Southern Railway Company. The complaint alleged that, on July 21, 1890, intestate was a passenger upon one of the local freight trains of defendant at Malvern that, while he was in the caboose of said train, it was, by the carelessness of defendant's employees, run into by another train and wrecked; that, by reason of said collision and wreck, Maddry was so badly bruised and injured that he subsequently died; that he left, him surviving, his widow (the plaintiff), two sons of the ages of 23 and 16 respectively, and one daughter of the age of 12 years, as his only heirs at law; that, by reason of said wrongful death, the widow and next of kin were damaged in the sum of $ 25,000.

The answer put in issue the allegations of the complaint, and charged that Maddry's death was due to contributory negligence.

Plaintiff recovered a verdict and judgment in the sum of $ 7500. Defendant has appealed.

Affirmed.

Dodge & Johnson for appellant.

1. The court erred in giving the sixth instruction and in refusing the instructions asked upon the subject of contributory negligence. Also in giving the fifth prayer for plaintiff as to the measure of damages. Mansf. Dig. secs. 22, 26; 59 Ill. 534; 46 Iowa 195; 28 Ohio St. 199; 37 Mich. 205; 93 Ill. 302; 55 Ill. 379; 19 Kas. 83; 48 Pa. 320; 18 Iowa 290; 18 Ill. 349; 51 Ark. 515; 41 id. 388.

2. It was error, to exclude evidence as to widow and minor receiving a pension from the government after Maddry's death. U. S. Rev. St. secs. 4692-3, 4702. If the widow and family received the same pension after Maddry's death that Maddry received, where is their loss?

4. The verdict is excessive.

Sanders & Watkins for appellee.

1. The court properly ruled out the evidence as to pension received by Mrs. Maddry. The amount of pension to be granted was a question of law. The courts take judicial knowledge of the laws of the United States. Newman, Pl. & Pr. 269. The question was improper. But the rule is that expected bounty from the government, charity, insurance, etc., cannot mitigate damages. for a wrong. 74 Ga. 857; Suth. on Dam. vol. 1, p. 242; 36 N.J.L. 213; 43 Vt. 536; 38 Barb. 569.

2. Loss of instruction and physical, moral and intellectual training of minor children, * * * etc., is a pecuniary injury, and may be considered by the jury in estimating damages. 29 N.Y. 252; 37 id. 287; 31 Am. & Eng. R. Cases, 229.

3. There was no evidence upon which to base the prayers asked upon the subject of contributory negligence.

4. The verdict is not excessive.

OPINION

HEMINGWAY, J.

The appeal is put upon the following grounds, to-wit:

1. That the court excluded competent evidence on part of defendant.

2. That the court erred in directions given to the jury with regard to the law of contributory negligence.

3. That the court erred in refusing prayers for instructions with regard to the law of contributory negligence; and

4. That the damage awarded by the verdict is excessive.

The grounds stated cover all questions relied upon by the appellant, and we proceed to consider them in the order set out.

1. Mrs. Maddry, the widow, was introduced as a witness for the plaintiffs, and testified that when her husband was killed, he was drawing a pension from the government of $ 72 per month. The record discloses that, after she had so testified and while she was under cross-examination, the following occurred. She said:

"I am not getting a pension now, but have made application for one. Q. For what amount? A. For whatever they will give me. Q. Your pension has not yet been passed on? A. No sir. Q. Have you made application for a pension for your children? A. No sir, only for one, the youngest. Q. What is the amount of the pension to be granted you by the government?"

Here counsel for plaintiff objected to this question; also to all further testimony about the widow and minor children of the deceased receiving a pension since his death. The court sustained the objection and ruled as follows:

"If the jury should find for plaintiff, they will be instructed that, in considering the damages that the widow and children might have sustained by the loss of the deceased, W. T. Maddry, they will not take into consideration any pensions that they have received from the government in consequence of the loss of the life of W. T. Maddry."

We entertain no doubt that the court ruled correctly in excluding the proof offered. The widow had testified that she was drawing no pension, and if she was entitled to draw one the amount of it was fixed by a public act of Congress. If the right it conferred affected the issues in this case, it should have been brought to the attention of the jury by instruction from the court, and not by the testimony of a witness.

If, however, the plaintiffs, or any of them, were entitled to a pension which it was proper to consider in mitigation of their damages, there was error in the statement made by the court after ruling upon the admission of the testimony offered. As this action was not embraced among the grounds set out in the motion for a new trial, we would not be able, perhaps, to reverse the judgment on account of it, even if we found it to be erroneous. But we are of the opinion that there was no error in it. In estimating the amount of the pecuniary advantage that the widow and children could reasonably expect from a continuance of Maddry's life, it was proper to consider the amount of his income, including the monthly pension of seventy-two dollars, since there was a reasonable probability that he would have continued to receive it, if he had lived, and that he would have applied it or part of it to their use; and since they lost by his death all expectation of advantage from it. But the loss was consummate at his death, and its extent measured the plaintiff's injury, which could not be affected by the fact, either that they thereafter did, or did not, obtain some other valuable right, or receive an independent gratuity.

If, by the terms of the law, a pension had been granted, and made payable to him for his life, and to his widow and children upon his death, it may be that the matter would not have been proper for consideration, as his death would have caused no deprivation in that respect. Demarest v. Little, 47 N.J.L. 28. But such is not the law. Under the law, the pension granted to him lapsed at his death, and did not pass by limitation to plaintiffs. By the provisions of an act approved June 27, 1890, the widow, if without other means of support than her daily labor, was entitled to demand eight dollars per month for herself and two dollars per month for each of the children under sixteen years of age, to begin from the date of the application for it. See Acts U.S. Cong. of 1890, p. 182. But this right is conditional, not absolute; it is confined to the widow and children under sixteen, and the older children do not share in it; and it is a new right conferred upon the widow and young children, and not an old one passing from the deceased to them. The appellant's argument rests upon the idea that the right of the ex-soldier passes upon his death to his widow and children, and refers to section 4702 of the Revised Statutes of the United States to sustain it; but in our opinion the particular section relied upon is wholly inapplicable to this case--being applicable only where the ex-soldier dies from the wound, injury or disability on account of which the pension was granted.

No case is cited in which this precise question was involved; but our attention has been called by the appellee to a line of authorities that are relied upon as coming within the same principle, and as determining the question against the appellant. They seem to be generally approved by the courts of the different States. The rule deducible from them is that it cannot be shown in mitigation of damages that the plaintiff acquired property by descent from the deceased, or received a sum of money for insurance upon his life. 2 Sedg. on Dam. sec. 583 and cases cited.

And in a kindred case in Ohio, where a husband sued for the death of his wife, it was held that his recovery could not be reduced by proof that he had married a second wife who performed the services formerly performed by the first wife. Davis v. Guarnieri, 45 Ohio St. 470, 15 N.E. 350. The reason is, that a right of action arises at the time of the death to recover just what was lost by it; and that the loss thus occasioned is none the less, even though the injured party thereafter acquire, through his own skill or industry or the charity or affection of others, more than he lost.

We see nothing in the question presented to distinguish it from those ruled in the cases referred to, and, upon the doctrine they establish, we hold that the conditional provision of the law for the benefit of the widow and child under sixteen was not proper to be considered in mitigation of damages.

2. It is insisted that, with regard to the law of contributory negligence, the court gave an instruction, at the prayer of plaintiffs, that was misleading, and declined to give instructions, at the prayer of defendant, that stated the law correctly. We have not looked to the instructions to determine this question, for we are of opinion that there was no evidence to which a charge upon that subject could be applicable, and that since contributory negligence is not presumed but must be proved, such an error, if committed, was without prejudice. In support...