Haynes v. Waterville & Oakland Street Railway

Emery, J.

Motion. At the time and place of the injury to the plaintiff from being run over by a car of the defendant street railway company in Main Street, Oakland, the railway track was unfinished. The ground had been leveled to a level surface, the sleepers were laid on this surface, and the rails on the sleepers, but no ballast or earth had been filled in between the sleepers. The top of the rail was about a foot above the surface of the street. The plaintiff and his grandfather were riding in a wagon along the street to the left of the railway track and a car of the defendant was coming toward them. When the car came near, the plaintiff’s horse was frightened by the car and, after a few moments swerved violently and upset the wagon, throwing the plaintiff on the track in front of the moving car which ran over, him to his injury. There was much conflict of evidence as to how all this happened, but we think the jury could have legitimately found from the evidence in favor of the plaintiff’s contention that the horse, upon becoming frightened, first made a quick sharp turn to the right to get about and away from the car in that direction, but, meeting and seeing the unballasted track, was repelled by it and made an even sharper turn to the left with the effect of upsetting the wagon and throwing the occupants on the track. The jury might also have found that the horse would have got round and away but for the unfinished condition of the track, and that that condition, com- *337 billed with the frightening of the horse by the defendant’s car, was a cause of the injury.

The defendant company contended that it had before that time been duly authorized by the Railroad Commissioners to operate its railroad with the track in its unfinished condition at that place, but, if so, that did not exempt it from liability for injuries caused by that condition to persons in the situation of the plaintiff. While the defendant may have had the right to run its cars at that place, yet it was bound to know that it might thereby frighten horses, and it should not have left its track in a condition to add to their fright and prevent their getting out of the way. There was some evidence, therefore, of causative negligence on the part of the defendant company. There was some evidence also of the plaintiff’s freedom from contributory negligence. We do not think the evidence preponderates so heavily the other way as to show unmistakably that the jury erred on either issue.

The damages assessed were perhaps large, but not so glaringly excessive as to show clearly-that sympathy or prejudice overcame the judgment of the jury. The total loss of the left hand by a boy ten years of age takes a great deal of usefulness and enjoyment out of his prospective life. The loss of earning power is by no means the extent of the injury.

The motion to set aside the verdict cannot be sustained.

Exceptions. As bearing upon the expectancy of life of the plaintiff, his grandfather was permitted to testify, against the defendant’s objection, as to the age at which his own father and grandfather respectively had died. It is common knowledge that physicians and life insurance companies regard the longevity of one’s ancestors as an important factor in determining his expectation of life. The various “mortality tables” only give averages, and in an individual case the expectation may be higher or lower than that average by reasou of many circumstances peculiar to that case, such as the presence or absence of inherited disease, deformity, &o. • A descent from robust, long-lived stock gives greater promise of long life than descent from frail, short-lived ancestry, other things being equal.

The defendant urges that if such evidence be admissible, then the *338 inquiry may branch out interminably as to the length of life of all one’s ancestors on both sides through grandmothers and great grandmothers. The court has power, however, to restrain the inquiry within reasonable limits within which the effect or influence can be seen. In this case the inquiry did not go beyond those limits. This exception must be overruled. The others are not urged.

Motion and exceptions overruled.