44 RoSI!l
FEDERAL REPORTER,
vol. 44.
et
ux· .". TEXAS & PAC. Ry.Co.
(Ok'cuit Court, W. D. Texas, EZ Paso Division. October 27, 18110.) 1. RAILROAD COMPANIES-KILLING CHIi.D ON TRACK-EvIDENCE.
In an action against a railroad company for the killing of a child, a witness for plaintiff testified that the engineer saw the child on the track in time to prevent the accident; that witness called to the engineer to stop when the tender of the backing engine was within six feet of the child; and that the engine was going very slowly, and could have been stopped within four or five feet. Held, that the evidence was sufficient to sustain a verdict in plaintiff's favor, though substantially denied by the engineer and a switchman in defendant's employ. who both testified that it was impossible for the engineer to see the child jthat no warning of its presence was given until the tender was within three to five feet of the child: and that the engineer immediately reversed the engine. but did not succeed in bringing it to a stand until It had run eight feet, and killed the child.
2.
NEW 'fRIAL-EXCE88IVE VERDICT.
A verdictof'$2,500 in favor of the parents, for the killing of a healthy, sprightly, five-year-old child, does not clearly show thai the jury committed some palpable error. or totally mistook the rule of law by which the damages are to be measured, or were swayed by passion and prejudice, 110 as to warrant the court in settini' aside the verdict as excessive. , .
At Law. On motion for new trial. W. C. Henderson and Brack <to Neill, for plaintiffs. B. G. BidweU and Peyton F. Edward8, for defendant. MAXEY,J. .The in its motion assigns the three following grounc1s for setting aside the verdict returned at a former day of the pressimt term: . "(I) The verdict of the jury is contrary to and not supported by the evidence. (2) It is contrary to the law, as given in charge by the court. (3) The verdict is clearly excessive, unjust, and unreasonable." No objection is made to the charge, but it is insisted that, under the instructions, there was no evidence upon which to predicate a finding in favor of the plaintiff. If it be true that there was an absence of testimony connecting the death of plaintiffs' son with the negligence of the engineer who was af the time operating the engine, correct practice wOllld have authorized the court to. direct a verdict for the defendant. Under such circumstances, thesubrni::lsion of a case to the jury would be useles,s formality. Says the supreme court: . "It is the settled law of this court that, where the evidence given at the trial, with all the inferences that the jury could jnstifiabl,Y dPaw from it, is insn fficien t to support a verdict for the plaintiff, so that such a verdict. if returned, would be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant." Randall v. Railroad Co., 109 U. S. 482, 3 Sup. Ct. Rep. 322; (Joodlett v. Rail1'oa·d Co" 122 U. S. 411, 7 Sup. Ct. Rep. 1254; Kane v. Railway, 128 U. S. 94,9 Sup. Ct. Rep. 16.
.But it is said by the court in the case of Goodlett v. Railroad Co., aupra, that. . "Where a'cause fairly depends upon the effect or weight of testimony, it is one for the consideration and determination of the jury, under proper directions as to principles of law involved." Railroad Co. v. Stout,17 Wall.
ROSS fl. TEXAS.& PAC. RY. CO.
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661. See, also, Kirkpatrick v. Adams, 20 Fed. Rep. 292,293; Davey v. Insurance Co., rd. 494; Railway Co. v. Kindred, 57 Tex. 502. The right to a trial by jury, in cases of this character, is a constitutional right, and juries should be permitted to exercise their proper functions without interference on the part of the court. The court is not authorized to substitute its judgment for that of the jury in reference to questions of fact which it is the peculiar province of the latter to decide, and courts are not called upon to weigh, to measure, to balance the evidence, or to ascertain how they should have decided if acting as jurors. Railroad Co. v. Stout, 17 Wall. 663. "In no case," says the supreme court, "is it permissible for the court to substitute itself for the jury, and compel a.. compliance on the part of the latter with its own view of the facts in evidence, as the standard and measure of that justice which the jury itself is the appointed constitutional tribunal to award." Barry v. Edmunds, 116 U. S. 565, 6 Sup. Ct. Rep. 501. The views of the supreme court in relation to the functions of a jury, .and the reasons for the value which should properly attach to their findings, are clearly staled in the following extract from the opinion delivered byMr. Justice HUNT in the case of Railroad Co. v. Stout, supra: "It is true, in many cases, that where the facts are undisputed, the effect of them is for the jUdgment of the court, and not for the decision of the jury. This is true in that class of cases where the existence of such facts cOllie in question, rather than wbere deductions or inferences are to be made from the facts. If a deed be given in eVidence, a contract proven, or its breach testi· fied to, the existence of such deed, contract, or breacb, there being nothing in derogation of the evidence, is no doubt to be ruled as a question of law. In some cases, too, the necessary inference from the proof is so certai n that it may be ruled as a question of law. If a sane man voluntarily throws himself in contact witb a passing engine, there being nothing to counteract the effect of this action, it may be ruled, as a matter of law, that tbe injury to him suIted from his own fault, and that no action can be sustained by him or bis representatives. So if a coach driver intentionally drives within a few inches {)f a precipice, and an accident happens, negligence may be ruled as a qlles, tion of law. On the other hand, if he had placed a suitable distance between. his coach and the precipice, but by the breaking of a rein or an axle, whicb <lould not have been anticipated, an injury occurred, it migbt be rlliedasa question of law that there was no negligence and no liability. ·Butthese arj!j extreme cases. Tbe range between them is almost infinite in variety and tent. It is in relation to tbese intermediate cases that the opposite rule pre. vails. Upon the facts proven in such cases, it is a matter of judgment llnd discretion, of sound inference, what is the deduction to be drawn from thlil undisputed facts. Certain facts we may suppose to be clearly est&blished from which one sensible, impartial man would infer that proper care had riot been used, and that negligence existed; another mau, equally sensible and equally impartial, would infer that proper care had been used,and that there was no negligence. It is tbis class of cases, and those akin to it that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men of education and men of little education, men of learnhlg and men whose learning consists only in wbat they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment,
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thus giv:en"it .fa the great effort of the law to obtain. It is assumed that twelve men know more of thl' .common affairs of life than does one man, that they can draw wiser and safer conclusions from admitted facts thllS occurring thau'can aaingle jUdge." 17 Wall. 663.664.
',Twel,ve have passed upon the issue of negligenceinthis and fopndin favor of the plaintiff. The defendant says the findingwa:s contrary to the charge of the court and unsupported by theevide.nce. That part of the charge having direct reference to the question under cbnsideration reads as follows: "If the engineer who was operating the engine knew that plaintiffs' son was un the track in front of the engine. then it was his duty to use all the efforts in his power, and within his means and ability, to stop the engine to prevent and avoid the injmy. Aud if, knowing of the peril of the child. the engineer failed to use such means to avert the threatened danger, then he was gUilty. of. negligence; Rnd if from such negligence the injury and death of the child resulted, the defendan.t WOUld. be liable for the damages thereby sustained.If, however, the engineer did not see the child, or if, seeing him, he used, as soonas hediseoverl:'d him, all the efforts in his power and within his means "ild ability to stop the engine 'and prevent the accident, but that, nutWithstanding such he was tinable to stop the engine in time to avoid the injury, then the engineer was not guilty of negligence, and your verdict should. be for tile defendant.·.. .Did 'the' engineer seethe child on the track? and, if so, did he exercise save it? Ross, testified that the engineerdfd see him, ,and discovere<i.him in time to prevent thE: casualty; that when witness shouted to the engineer "to hold on for God's sake; you will run over the children," the tender of the backing engine was about six feet distantfl'omthe deceased; that the engine was going slow, and could have been stopped within four or five feet; that he bad seen it stopped before within a distarice of three feet, when running at about a similar rate of speed; ·that the rear 9f the tender was sloping, and the engine .was used for purposes; that the engineer, when first warned of the danger to which the child was exposed. made no effort to stop',and did his position, but continued sitting on his seat, 'facihg witness, until it Was too late to stop the in time to save the life. of the child. These statements were su bstantially denied by the testified thntlie was not facing the witness Ross, but was looking in the opposite direction, toward the switchman; that he did not see the,child until alter it was struck by the tender, and, if he had been facingwittless, he could not have. seen deceased, because, a: box on the re!lr.ofthe tender obstructed the view to a distance of 80 yards in that. direction,'. notwithstanding the slope of the tender; that he heard no wa'rping from.witness Rossjthat he did hear a warning of the switch. manto stop the engine, nnd, although he did not know the child was On the truok,beimmediatelyireversed thBengine, and used all means in IHs,.power,to,st,op the engine came to a stand in six or eight · engineeds corroborated by 13witchiQaJ;l" :w:11 0 .}V,llSpresellt,.nnd the occurrence... The SWItchman, .. tf,lllti,tied the rear end QLth.e tender and one-
ROSS
V. TEXAS & PAC.
RY. 00.
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"hair Or four feet highj thatwhen he shouted to the engineer, "For God's sake stopl you are about to kill a child," the rear end of the tender was three, fOUf, or five feet" from. the child, and the engine was stopped within eight feet. . " If the jury credited the statements of Ross there was testimony, although slight, to sustain the verdict; and, on the other hand, there was also testimony to justify a finding favorable to defendant. In either event, the l;ourt could not, without im invasion of the jury's province, disturb tbefinding.. See Bwwnv. Griffin, 71 Tex. 659,9 S. W. Rep. 546. The court ,should exerCise with a firm hand its po",er to set Q-side verdiCts in propei' cases. But whenever the power the judge 'should careful,ly distinguish between usurpation of the jury's functions and legitimiite exercise of his own judgment and discretion. The jury'wert' ,eviderttly of opinion, after. considering all the testimony before tHer, 'thattbe epgineer saw the child in time its injuries and and th,at he failed to exercise the care and diligence the'law imp.osed upon,lHm., Under such circumstances, the court d,oes not feel -in: disturbing the verdict. . " . " The remaining ground of the motion asserts the damages are excesSive. It waS' conceded by counsel for plaintiffs. on the trial, the or recovery ,was the earnings duiig.lt's the costofi Ul apd suPP-Aft:: 'Tpe jury awarded plaintiffs, who were the father and mother 'of. the, ,sum ,. of $2,500. 'J,'he testimony,,Of the :father shows, that plaiptiffs wei'epoorj that he WI;lS 5,0 years old, and his wife 22, and at tbetime of the son's death the{were ktlepingan h()tel at Big child was a stout, able-bodied boy,ab6ut1ive years "of age,with fine D;lindand well groWllj that he was kind and 'dutiful, lind hadbegu,n to Some ,service to the parents. . " . ..' , .'[,' , v. White was a suit brought to recover damages for 'the death ofa child six years orage,and the supreme court ofthis state;,iI(liold,ing that the recovery must be confined to the pecuniarj'loss sustained by the parents, as the jury were instructed in this case, rules nnd principles which Should obtain touching the question of proof of datmlgeain cases of this character. It says: , ,. this citation of authorities, which in.themain weapprpve, nectiOn with the statute, 'the jury may give such damages as theY' proportIoned to the injury resulting from such death;' [article 2909.] we may Sllggesj;..;..Fil'st. Where the killing of the child was wrongfnl,tltc., the Wheretbe testiparents are entitled to at least nominal damages. monyshows the bodily health and strength, the sprightliness,or,wal}.,tpf it, of mind; the aptitude and willingness to be uaeful in perfol'lniug mode such faculties are exercised, aain usefullaboror otherwise; arid' whbi1, from the age and undeveloped state anyeSti'mate 'services;lihtii majority would be matter:of op'iniori'in which no,pafUhilar 'or especialktiOwledge in the way of experttf>stimonycould tbanthe·judgment and com mon sense of the or!linary to the'duty 'of determining such value,-then. uponsueh testimony, the'sollnlHllscretion ofthejttry .can be relied on to determinetlufvalue, withoUt'ariy 'ing aaum. ' l'htr4.As. the 'age of the chi'ldibereases, :.alia: his ,factUtieS' de·
"elop, to actual services can and should be produced, giving a wider basis of induction to the jllry in calculating the damage from the loss. Fourth. The circumstances of the parents suing. as in this case. often become necessary as evidence. not as a. basis for increasing or diminishing the amount, but to illustrate the acts of the child as useful or otherwise." 70 'fex. 511, 8 S. W. Rep. 85.
No testimony was submitted as to actual earnings of deceased, nor is it reasonable to suppose that a child five years of age could· find employment by which wages might be earned. Still it cannot be said that such a child had no pecuniary value tp its parents. The question of amount is one for the jury to determine, under appropriate instructions. No precise, definite rule can be laid down in this and kindred cases, "and, when it does not appear that the verdict is not the result of the honest endeavor of the jury to follow their own convictions in the exercise of a power not precisely defined, we think that the law intends that the jury's estimate, rather than the equally undefined one of the judges, shall prevail." Railway 00, v. Lehmberg, 75 Tex. 68. 12 S. W. Rep. 838. It is said by Judge HAMMOND, in Gaither v. Railway Co., 27 Fed. Rep. 546, that he was"Unable to even guess from the proof, and we can look nowhere else, how the jury arrived at their verdict; but here. again. the trouble is that in all such cases it is impossible to calculate damages with accuracy from any proof. It is largely a matter of estimate by the jury from the proof, and not calculation. " The following cases are instructive as illustrating the difficulty in determining, under a statute like that of Texas, the precise amount of damages to be awarded where nodefinite rule can be given a jury for its guidance: Railroad 00. v. Barron, 5 Wall. 105, 106j Railway Co. v. Lester, 75 Tex. 61, 12 S. W. Rep. 955; Railway Co. v. Ormond, 64 Tex.. 490; Railway Co. v. Kindred, 57 Tex. 503. In Brunswig v. lVhite, 8upra, a verdict of $1,500 was not disturbed, and in Railway Co. v. Becker, 84 Ill. 486, one for $2,000 for the death of a boy between six and seven years of age was permitted to stand. Is one for $2,500 so clearly excessive that it should be set aside? If so, why? A resort to the cold of mathematical calculation will not answer the question, if that were even permissible in caseR like the present. If $2,500 be excessive, 'what would be the proper amount? But the question is one peculiarly for thejmy, and their finding should not be set aside unless it results from passion or prejndice, or the court can clearly see that the jury have committed some palpable error, or have totally mistaken the rules of'law by which the damages are to be measured. The rule ill thus stated by the supreme court: "For nothing is better settled than that, in such cases as the present, and other actions for torts. wbere no precise rule of law fixes the recoverable damages, it is the peculiar function of the jury to determine the amount by their verdict. In Whipple Y. Manufactu1'ing Go.· 2 Story. 661, 670. Mr. Justice STORY well expressed the rule on this subject, that a verdict will not be set aside in a calle of tort for excessive damages. ' unless the court can clearly Ilee that the jury have committed some very gross and palpable error,