Atchison, Topeka & Santa Fe Railroad v. Rowe

The opinion of the court was delivered by Allen, J.

: It is insisted that both the evidence offered at the trial and the findings of the jury show that the tie which injured Pelton was thrown out of the car in the usual and ordinary manner, which was known to Pelton, and that the risk of pursuing his employment as the work was being carried on was assumed by him. The special questions submitted to the jury at the request of counsel for the railroad company were very artfully drawn, and some of the answers tend to uphold this contention; but, on a consideration of all the findings, and all the evidence on which they are based, we cannot say that the risk was assumed by Pelton. There is evidence tending to show that the tie which struck Pelton came out of the car in quite an unusual manner, and there is also evidence tending to prove that it was incumbent on those who were in the car to .look out, to some extent at least, for the safety of the men on the ground. The general verdict in favor of the plaintiff includes a finding in her favor of every fact which there was evidence tending to support necessary to uphold the verdict, and not directly negatived by the special findings. Taking all the findings together, we cannot hold that the risk was assumed.

*416 It is strenuously urged that the injury in this case was purely accidental, and that this is shown by the findings of the jury, especially the seventeenth, in which they say that Brickell accidentally lost control of the tie. In its ordinary use, the word “ accidental ” does not necessarily negative the idea of negligence. In ordinary conversation we often speak of a calamity as an accident without regard to its cause, and without considering whether it was the result of negligence or not. The seventeenth question was not so framed as to fairly challenge the attention of the jury to the question whether Pelton’s injury was purely an accident, occurring without the fault of any one, or not. The fifteenth question was whether Brickell purposely injured Pelton, which the jury answered in the negative. We think it clear, when the general verdict and all the questions and answers are considered together, that the jury regarded Brickell as negligent in permitting the tie to go out as it did, though he did not intend to injure anyone with it. The demurrer to, the evidence offered by the plaintiff and the motion for judgment on the special findings were properly overruled.

Amotion for a new trial was made, upon the grounds, among others, that the special findings of the jury were inconsistent with the general verdict and with each other, and that the verdict was excessive, contrary to the evidence, and given under the influence of passion and prejudice. It is also insisted that, although the action for the injury survives, the element of damages for pain and suffering resulting from it does not survive, but is personal to and dies with the person injured. The case of Cregin v. Railroad Co., 83 N. Y. 595 , is cited in support of this contention. Although the statute of New York under consideration *417 in that case is somewhat different from ours, it must be conceded that the reasoning of the court sustains the contention of the plaintiff in error, but we are not satisfied with the conclusions reached by that court. By our statute a cause of action for an injury to the person survives. The court of appeals of New York makes a distinction between what it terms pecuniary losses, which diminish the estate which would have gone to the personal representative, and losses personal to the injured party affecting only his feelings. But Jonathan Pelton had one entire cause of action, prior to the day of his death, against the railroad company. He had as full and complete a right to recover for the element of pain and suffering as for that of loss of wages. If he had recovered his damages in his lifetime, whatever he did not expend before his death would have been assets belonging to his estate. The dollars awarded for pain and suffering would have differed in no manner from those awarded for loss of wages, and would have been subject to precisely the same rules of distribution. We think the entire cause of action survived, and in this view we are sustained by the supreme court of Illinois. (Holton v. Daly, 106 Ill. 131 ; Railroad Co. v. O’Connor, 119 id. 586.) The argument drawn from decisions as to the nature of the recovery under section 422 of the code, which gives a cause of action where none existed at common law, has no application to causes of action which are made to survive under section 420, nor those actions already begun which section 421 of the code declares shall not abate.

We find it extremely difficult to harmonize the various findings of the jury, yet, if there were no other questions, it is possible that, in view of the artful manner in which the questions were framed, of the *418 unfairness of many of them, and of the rule that 'the general verdict is a general finding in favor of the plaintiff on every material fact not directly negatived by the special findings, we might uphold the verdict. But the j ury have found that Pelton died from a disease of the kidneys and bladder. The evidence shows that that disease was chronic, and must have continued for a considerable period of time. According to the testimony of one physician, he ’would have been unable to work for several weeks, months perhaps. In assessing the damages, the jury have allowed full wages for every working day from the date of the injury to the date of his death, without any allowance whatever for loss of time occasioned by the mor- ■ tal disease of which he died. Although the gross sum allowed for loss of time is not large, the allowance shows a want of that care and discrimination on the part of the jury which they ought to have exercised. The railroad company, clearly, was not liable for loss of time which Pelton would inevitably have sustained from causes other than the injury. ■ If he was rendered unable to work by disease in no manner resulting from it, he could not have been subjected to loss of wages during that time by the injury, for he could not in any event have earned any. The jury allowed $561.60 for loss of wages. They also allowed $3,438.40 for pain and suffering. As the injured man lived and suffered only a year and a half, this allowance seems very liberal, being at the rate of more than $2,200 per year. It is true that no definite measure can possibly exist for damages of this kind. No one can say just how severely another has suffered, nor just how much money would be an equivalent for that suffering. A comparison of the allowances made in other cases with the verdict in this impresses us *419 that it is very liberal, and when taken in connection with the indiscriminating allowance for loss of time, and the somewhat careless and conflicting answers to special questions, we are forced to the conclusion that the jury have failed to give this ease that fair and candid consideration it demanded, and that a new trial should be awarded.

The judgment is reversed, and a new trial ordered.

All the Justices concurring.