Speight v. Seabd. Air Line Ry

• Decision Date: 14 December 1912
• Citation: 161 N.C. 80,76 S.E. 684
• Parties: SPEIGHT. v. SEABOARD AIR LINE RY.
• Court: North Carolina Supreme Court

76 S.E. 684

161 N.C. 80

SPEIGHT.

v.SEABOARD AIR LINE RY.

Supreme Court of North Carolina.

Dec. 14, 1912.

1. Trial (§ 295^*)—Instructions—Construction as a Whole.

In determining whether there was error in a charge, it should be considered as a whole, instead of considering the portions excepted to alone.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*]

2. Death (§ 95*)—Actions for Causing— Instructions—Measure of Damages.

In an action for wrongful death, an instruction to determine deceased's life expectancy, giving consideration to mortuary tables introduced in evidence, and to his habits, sobriety, health, etc., to ascertain from the evidence his gross income, deduct therefrom hispersonal expenses, thus ascertaining his net earnings, and to award the present value of his net income during his life expectancy, was proper.

[Ed. Note.—For other cases, see Death, Cent. Dig. §§ 108, 109, 111-115, 120; Dec. Dig. § 95.^2-*]

3. Death (§ 104*)—Actions for Causing— Instructions.

In an action for wrongful death, defendant's counsel having argued that there should be a deduction of damages because of plaintiff's contributory negligence, the court charged that there should be no such deduction, that the administratrix was entitled to recover whatever the next of kin lost by deceased's death, regardless of whether he was a good boy, a bad boy, a negligent boy, or hard working, and that evidence of his conduct, character, and habits were only relevant on the question of his earning capacity. Plaintiff excepted to the charge that it made no difference whether the boy was a good boy, etc. Held, that the instruction was favorable to plaintiff, and not erroneous. *

[Ed. Note.—For other cases, see Death, Cent. Dig. §§ 142-148; Dec. Dig. § 104.*]

4. Death (§ 77*)—Actions for Causing— Instructions.

In an action for wrongful death, an instruction that, in determining deceased's life expectancy, mortuary tables introduced in evidence might be considered, but would not be binding on the jury, was proper.

[Ed. Note.—For other cases, see Death, Cent. Dig. § 96; Dec. Dig. § 77.*]

5. Death (5 104*)—Actions—Instructions-Damages.

In an action for wrongful death, an instruction on the measure of damages that the jury should determine how long deceased would have lived, what his income would be a year, then take his gross income, "what he was making, " deduct his personal expenses, and the balance would be his net earnings, did not make his earnings at the time of bis death the basis for computing his prospective income, and was not erroneous.

[Ed. Note.—For other cases, see Death, Cent. Dig. §§ 142-148; Dec. Dig. § 104.*]

6. Trial (§ 194*)—Instructions—Invading Province of Jury.

Mathematical computations in a charge on the measure of damages was not a usurpation of the powers of the jury, where the court charged that his figures should not be accepted as they might be incorrect, but were used merely as an example.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 413, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]

7. Trial (8 236*)—Instructions—Credibility of Witnesses.

In an action by an administratrix for wrongful death, an instruction that her interest should be considered in weighing her testimony was proper.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 531-533; Dec. Dig. $ 236.*]

Appeal from Superior Court, Richmond County; Peebles, Judge.

Action by Mary M. Speight against the Seaboard Air Line Railway. From a judgment for plaintiff for insufficient damages, she appeals. Modified and affirmed.

This is an action to recover damages for the negligent killing of the plaintiffs intestate. The jury returned the following ver dict: (1) Was the plaintiffs intestate, Arthur Speight, injured and killed by the negligence of the defendant, as alleged in the complaint? Answer: Yes. (2) Did the plaintiff's intestate, by his own negligence, contribute to his own injury and death, as alleged in the defendant's answer? Answer: Yes. (3) If so, notwithstanding the contributory negligence of the plaintiff's intestate, could the defendant by the exercise of ordinary care, have avoided the injury and death? Answer: Yes. (4) What amount of damages, if any, is the plaintiff entitled to recover of the defendant? Answer: $2,500. Judgment was entered upon the verdict, and the plaintiff appealed upon the ground of errors on the trial of the fourth issue.

The charge of his honor on the fourth issue was as follows: "Now, if you answer the first issue and the third issue 'Yes, ' then you will come to the fourth issue, 'What amount of damages, if any, is plaintiff entitled to recover of the defendant?' In respect to something said in regard to deducting some damages from your verdict for the reason that the intestate was negligent in getting out on that track, that is not the law in this case, and you must not consider his negligence at all. (The plaintiff is entitled to recover whatever the next of kin lost by. the death of the intestate, and it does not make any difference whether the boy was a good boy, a bad boy, a negligent boy, or hard working. This evidence is simply to give you an idea as to the capacity of the man to earn money. If a bad man could earn as much as a good man, his next of kin would lose just as much. Those matters are just simply put before you in order that you might determine whether the deceased might be constantly employed and be an industrious employe.) The rule laid down by the Supreme Court is that you must ascertain as best you can how long the deceased would have lived if he had not been killed. In order to do that, the statute says you can introduce and consider the mortuary tables, because those tables are calculated by insurance people who have studied the matter thoroughly, and they have calculated with a view to try to find how long a man is expected to live when making calculation for insurance, and the Legislature has adopted that; and the mortuary tables say that where a man is 18 years old he is expected to live 43 1/2 years longer, making him 61 years old, I believe. Now that is not an ironclad rule—not one you have got to be governed by absolutely. (It is to aid you in coming to a conclusion as to how long the deceased would have lived. In coming to that conclusion, it is your duty to take into consideration his habits as to health, sobriety, etc.) You are not bound to find that he would have lived 43 1/2 years longer, or that he would not have lived longer than that. You may find that he wouldhave lived a longer or a shorter time. (Then, after you determine how long he would have lived, you must ascertain, as best you can from all the evidence, what his income would be a year, then take his gross income, what he was making, and then deduct what his personal expenses would likely be, and take the expenses from his annual gross income, and the balance would be the net earnings for one year.) (Now upon that subject there are two witnesses, one for the plaintiff saying it would cost $35, one saying it would not cost him anything. Mrs. Speight said she did his washing, etc., but, as a matter of law, that is not the rule, as no one can tell how long she would continue to do that You are not to be governed by what somebody else gives him.)" His honor then made a calculation and said: "Now of course you are not bound to find that he would work 365 days in the year, never be sick, or have doctor's bills. These are all matters for you; the court cannot help you about that. (The evidence is he was getting $36 per month, and I am taking it as an example to explain to you how the matter is done. You must not take what I took here, as the figures I have used might be incorrect I divide the difference between the two witnesses—one said $35 per month, and one said nothing— and I divide it and put it down at $15 per month as the net income after paying all personal expenses.) As I said before, this is just taken as an example to explain to you how the matter is done. You are not to conclude that I have expressed any opinion as to what you ought to find. As I said before, you are not bound to find that he would live 43 1/2 years; you may find that he would live a longer or a shorter time. Take everything into consideration and find out as best you can how long he would have lived and what his personal expenses would be per year. (His mother said he did outside work to pay for his washing and his board—cut wood, drew water. When you go to consider her testimony, it is your duty to consider the interest which she has in the result of this suit. According to the law, prior to 1868 in civil cases, and 1881 in criminal cases, evidence of parties interested in the suit could not go before the jury at all; the law assumed that they were...