St. Louis, I. M. & S. Ry. Co. v. Davis

• Decision Date: 20 February 1892
• Citation: St. Louis, I. M. & S. Ry. Co. v. Davis, 18 S.W. 628, 55 Ark 462 (Ark. 1892)
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. DAVIS.
• Court: Arkansas Supreme Court

Page 628

18 S.W. 628

ST. LOUIS, I. M. & S. RY. CO. v. DAVIS.

Supreme Court of Arkansas.

February 20, 1892.

Appeal from circuit court, White county; MATHEW T. SANDERS, Judge.

Action by John M. Davis, as administrator of Clarence Davis, deceased, against the St. Louis. Iron Mountain & Southern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Dodge & Johnson, for appellant. Sanders & Watkins, for appellee.

COCKRILL, C. J.

It was settled in the former appeal in this case that it was a question of fact for the jury, and not of law for the court to determine whether the deceased, who was a country-reared lad of narrow experience, knew that service about an unblocked rail was attended with danger. Davis v. Railway Co., 53 Ark. 128, 129, 13 S. W. Rep. 801. The testimony was not materially varied on the second trial, and the question remained one of fact, and was therefore properly submitted to the jury.

The only objection urged to the charge of the court, outside of that which goes to the measure of damages, is that it was abstract, in that the jury were told that it was the defendant's duty to warn an inexperienced servant of the hazards and risks of his employment, without limiting the direction to the hazard or risk about the unguarded rail, which was the sole cause of the injury. But there is no pretense that warning was given to the deceased about any other danger, and other parts of the charge given at the instance of the railway pointedly limit the jury's consideration to the hazard of the unblocked rail. We are unable to see, therefore, that the jury could have been misled by the charge. They have found, in effect, that the railway put an inexperienced lad in a dangerous place, without apprising him of the risk, and that by reason of his inexperience he was ignorant of the danger, and was therefore killed. The proof justified the finding. The court committed no error in submitting the question to the jury, and the company is liable.

It is claimed that the verdict is excessive. For the pain and suffering of the deceased, and the damage to his estate, recovered by the administrator for the estate, a verdict of $5,000 may be considered ample on the facts of this case, but it should not be disturbed by this court. The damages recovered for the benefit of the father as next of kin are intended as compensation for a pecuniary loss, and can be measured with a nearer degree of accuracy. The amount recovered on that score was $1,500. If the recovery could be for no more than the services of the son until the date of his majority, the sum is excessive, because the proof does not show that his services would have been worth that much in the limited time between the injury and the date of his majority. The question whether the recovery for the benefit of the father, as next of kin, can go beyond the minority of the deceased son, is therefore presented. It is a question upon which the authorities divide. There are many cases on both sides of the controversy, in which the question has been passed upon without discussion, and but few shed light on the reason for adopting either rule. The leading cases which deny the right to recover for any expectation of benefit beyond minority are State v. Railway Co., 24 Md. 84, and Association v. State, 71 Md. 86, 18 Atl. Rep. 37. The argument of those cases is about this: As a minor has no legal right to his own services or earnings, even though he is working for himself with his father's consent, when he aids his father, whether by his personal services or by contributions from his earnings, he is only rendering to him what is already his; and the act, however often repeated, affords a vague conjecture, but no legal evidence, of what he will do after majority, when he has...