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

• Decision Date: 18 February 1893
• Citation: 21 S.W. 472
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. MADDRY et al.
• Court: Arkansas Supreme Court

21 S.W. 472

ST. LOUIS, I. M. & S. RY. CO. v. MADDRY et al.

Supreme Court of Arkansas.

February 18, 1893.

Appeal from circuit court, Hot Spring county; Alexander M. Duffie, Judge.

Action by Mary E. Maddry, as administratrix of W. T. Maddry, deceased, and her minor children, against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for the alleged negligent killing of her intestate by defendant. From a judgment for plaintiffs defendant appeals. Affirmed.

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

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. Question. For what amount? Answer. 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 plaintiffs, 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 might 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 $72; 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 a 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 plaintiffs' 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. Law, 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 16 years of age, to begin from the date of the application for it. See Acts Cong. 1890, p. 182. But this right is conditional, not absolute. It is confined to the widow and children under 16, 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 appellees 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. Sedg. Dam. 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. Rep. 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, though 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 16 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 of this conclusion it is proper to state generally the case as made by uncontradicted proof. Maddry had taken his seat as a passenger in a car that had been put in place to receive passengers. It was in the rear of the train, and while he was seated, waiting for it to proceed, another train approached from the rear, at a great speed. He and other passengers in the car realized the danger, and attempted to escape from it. Some got off, while one was caught in the car. Maddry got to the platform, when the car was run into and wrecked, and he was killed. The passengers who got off the car were not injured, and the one who did not get out was not killed. These circumstances, it is contended, had sufficient tendency to establish contributory negligence to warrant a submission of it, under proper instructions, to the jury. But we think they have no tendency in that direction. When it became apparent that the running train would strike the car, the danger to those who remained in it was unmistakable. Self-preservation dictated flight, and all the passengers attempted it. In the attempt Maddry was killed, while others reached places of safety, and one, who was caught in the car, strangely enough, survived its wreck; but there is nothing to show that Maddry's fate was due to any careless, negligent, or incautious act of his. It certainly did not appear safe, and was not incumbent upon him, to keep his seat in the car about to be wrecked; and if he could have escaped, but negligently or carelessly failed to do it, the fact is not shown.

In support of the same ground the defendant relies upon the fact that Maddry was almost blind, from which it argues that he was guilty of negligence in attempting to travel without an attendant. To this it is perhaps sufficient to say that, even if sight would have enabled him to escape, blindness was not the juridical cause of his injury, but only a condition that made it possible, as was his presence in the car. Martin v. Railway Co., 55 Ark. 510, 19 S. W. Rep. 314; St. Louis, etc., Ry. Co. v. Commercial, etc., Ins. Co., 139 U. S. 223, 11 Sup. Ct. Rep. 554; Ihl v. Railroad Co., 47 N. Y. 323. If he had blindly run afoul the moving train and been injured, negligence might be imputable to him; but as his sight enabled him to enter safely the car intended for him, and he was there run down and injured by the wild train, the fact that he could not run fast enough to escape is not chargeable to his negligence, no matter whether his...