Louisville & Nashville R. R. v. Creighton

JUDGE HOBSON

delivered the opinion or the court.

These two appeals involve substantially the same facts, and have been heard together.

On April 30, 1895, about 5 o’clock in the afternoon, a freight train of appellant was passing along Saratoga street, in Newport, Ky., on the track of the railroad, about the middle of the street, moving at. the rate of four or five miles an hour. Three little children were playing in the yard of appellee, Minnie Creighton, fronting on the street, and she was standing at the gate of a neighbor, talking. An organ grinder began playing on the opposite side of the street. This attracted the attention of the children, and they came out of the yard to go over where the organ grinder was. When they got out on the sidewalk, appellee, Minnie Creighton, called to them to stop. Her two children stopped, but tlie third child, William Stock, went on across the street. Seeing that the little child, who was between three and four years of age, was endeavoring to run across the street in front of the train, which was then very close at hand, she screamed, to stop the engine. There *46 being no answer, she said, “My God! you will kill that child.” She watched for the engineer in the cab, and, seeing no one there to rescue the child, rushed out to the track; and as she was attempting to reach him, the child was run over. Before she could get out of the way the engine then struck her, fracturing her skull and hip, and inflicting other painful bruises, which caused her intense pain. The child was killed.

These two actions were filed in September, 1895, by her and the administrator of the child, to recover of appellant damages for the injury to her and the death of the child. The jury returned a verdict in her favor for $17,500, and in favor of the administrator of the child for $10,500. Several grounds are relied on for reversal; among others, that the verdicts are excessive.

The evidence warranted the submission of the cases to the jury, but it did not warrant a finding of punitive damages; and the court below properly refused to give a peremptory instruction to the jury to find for the defendant, or to give any instruction authorizing them to find punitive damages.

The proof showed that, as the train came along slowly down the street, a flagman was sitting on the beam of the pilot of the engine; and the evidence for the appellees tended to show that he had his face towards the organ grinder, with his back towards the child. This, if true, would not show any negligence on the part of appellant, as the flagman had not charge of the engine or train, and it was no part of his duty, ordinarily, to keep a lookout for trespassers on the track. This was a duty devolving upon those in charge of the engine. ■ It was in daytime, and on a straight track. The *47 proof for appellees showed that the fireman was was not on the lookout as the child came across the street, but was shoveling coal into the furnace. This was a duty that was incumbent upon him, and it was no evidence of negligence that he was so engaged. The proof for appellees also showed that the engineer was not ringing the bell, and, although sitting in his proper position, was not looking ahead, but had turned towards the organ grinder, and wTas looking in that direction. This, if true, was negligence on his part, however momentary may have been his withdrawal of attention from the track in front of him in passing along the street of this populous city, if thereby human life was lost, or personal injuries inflicted. The proof for appellant tended to show that the engineer was at his post and on the lookout, but that the child left the sidewalk and ran out upon the track from the opposite side of the street, and so could not be seen by the engineer at all before the train struck him, as the boiler was between the child and the engineer. If the child suddenly left the sidewalk and ran out upon the track just in front of the train, and too close to it for him to be seen, and the train stopped before striking him, the appellanit was not liable. There does not seem to have been any negligence on the part of any of the trainmen except the engineer. But as the train was going slowly, and there is evidence that the child, after running for some feet along the track, stopped on the track, that Mrs. Creighton had time to run out to him before he was struck, and that the attention of the engineer was then upon the organ grinder, we think the case wras properly left to the jury, but that, as the opportunity for seeing the child was at the most so brief, the evidence only -warranted a recovery of compensatory damages. *48 The appellee Mrs. Creighton was then about thirty-five years old, the mother of five children, robust, and attending to all her household duties. She was confined to her bed about two months. After that she went on crutches for some time, and has suffered much from hysteria and headache. Her physician testifies that from the injuries she has experienced what is known as the “change of life” some ten years sooner than might be otherwise expected, and that from the injury to the skull there is danger of her mind being affected. She testifies, however, very lucidly in this case. She lost no limb. She seems to be in possession of all her faculties, and not to be especially disfigured. She still attends to her household duties, in some measure; and, while her capacity for this is impaired, it is not destroyed. She was not earning any money, and it does not appear that she has any qualification for business or making money that is especially interfered with. Under such circumstances, we think a verdict for $17,500 is excessive, and should not be allowed to stand. This court has set aside a number of verdicts as excessive, where the facts were as strong as in this caset

In Standard Oil Co. v. Tierney, 96 Ky., 89 [16 Ky. L. R., 327 ; 27 S. W., 983], a verdict for $20,000 was set aside as excessive Avhere a vigorous man, thirty years old, and earning good wages, Avas badly burned and disfigured for life, the use of his left arm lost, and his right hand crippled.

In Louisville Southern Railroad Co. v. Minogue [12 Ky. L. R., 378; 14 S. W., 357], a verdict for $10,000 was set aside, as excessive, Avhere the evidence authorized punitive damages, and the appellee was nearly as badly injured as here. .

In Louisville & Nashville Railroad Co. v. McEwan, [17 *49 Ky. Law R., 406; 31 S. W., 465], a verdict for $18,000 for injuries received by a young lady while a passenger upon appellant’s train was set aside, as excess-' ive, where she had been shot in the face, the ball breaking the bone of the face, closing one nostril, partially paralyzing the face, and disfiguring her for life.

In Louisville Water Co. v. Upton, [18 Ky. L. R., 326; 36 S. W., 520], a verdict for $6,750 for loss of a hand was set aside as excessive.

A number of other cases might be cited in this and other States. It is hard to measure the just-amount of compensation in such cases as this, but the amount allowed by the jury here is so large as to strike the mind at first blush as excessive.

The same is true of the verdict for the death of the child. No recovery can be had for the sorrow or suffering of the parents. The measure of damages is the fair compensation to the estate of the child for the destruction of his capacity to earn money. The child was under four years of age. There are many diseases incidental to childhood, and it was by no means assured that this child would reach manhood. His earning capacity would -be nothing, or comparatively little, until he reached puberty, or near that time. In the meantime he would have to be supported, if he survived the dangers incidental to childhood. What his earning capacity would be after all this is largely a matter of conjecture. This court has sustained a number of verdicts for loss of life, where compensation only was allowed, from amounts ranging from $5,000 to $10,000, for adults who were vigorous and had actual money-earning capacity; but we do not think that, where compensation only is allowed, a verdict of $10,500 for the death of a little child like this ought to stand. *50 The appellee, Mrs. Creighton, did a most heroic deed, that was calculated to win the sympathies of the jury, rendering it very difficult for them to try this case dispassionately. Her health was in a great measure wrecked, and it was very hard for the jury to keep out of their hearts, no doubt, the feeling that the defendant ought to pay high for the gloom that had thus been brought upon two' households. But these sad occurrences are necessarily incidental to our mode of life and business. Money can not atone for them. The real injury can never be made good. This the law does not attempt to do. It simply tries to measure the pecuniary loss sustained, and it does not justify a recovery beyond a fair compensation for the injury. The judgment im each of these cases is therefore reversed, with directions to the court below to grant appellant a new trial.. ’•