#### St. Louis, Iron Mountain & Southern Railway Company v. Rodgers.

Opinion delivered April 26, 1915.

1. Pleading — separate causes of action — election.—Plaintiff ¡brought an action to recover damages for wrongful death, for the estate and for the next of kin; held, there is no error in refusing to require ■the plaintiff to elect between ithe two canses of action.

2. Damages — personal injury action — form op verdict. — Where plaintiff brought an action for wrongful 'death, asking damages for the estate and for the next of kin, deceased being in the employ of defendant railroad company, and engaged in interstate commerce, it is not error for ¡the trial court to refuse to require the jury to apportion the award of damages so as to show what sum they found on the cause of action for deceased’s pain and suffering, and the cause of action in favor of deceased’s widow and next of kin for their pecuniary loss.

3. ¡Negligence — personal injuries — contributory negligence. — In an ¡action for damages due to personal injuries, when the defendant has .raised the issue of contributory negligence, the burden is upon the defendant to show ithe same by the greater weight of the evidence, and even though deceased was guilty of contributory negligence, that fact would not preclude a recovery, but the jury should reduce the amount of their verdict in proportion to the amount of the negligence attributable to the deceased.

4. Damages — wrongful death — elements—child.—Where deceased was killed by the negligence of defendant railroad company, in assessing damages to his minor child, it is proper for the jury to consider as elements of damage the loss of instruction, training and care, which the child has sustained.

Appeal from Clark Circuit ¡Court; Jacob M. Carter, Judge;

affirmed.

STATEMENT BY THE COURT.

Appellee, as 'administratrix of ithe estate of her husband, James Rodgers, deceased, instituted this suit against the appellant to recover damages to the estate ■and the next óf Mu, alleging that on the 29th of May, 1913, James Rodgers was in the employ of the appellant as a ■brakeman ou a train engaged in interstate commerce, and at the time of 'his death was acting as .a ¡brakeman ou said train; that the train arrived at Gurdon from the south in the night time, ¡and at a point about a half mile.south of *264the .depot, near what is known as the brick yard, the train men ran a caboose upon a sidetrack with .such unusual force and at such a high .and dangerous rate of .speed that Rodgers, who was in the .cupola of said caboose where his duties required him to be, was thrown forward against the window in the oaboo.se; that his head was driven through the' glass .and his throat cut; that he lingered in great agony until about .an hour after bis injury when he died; that he left ¡surviving him the .appellee .and two children ; that appellee as administratrix, for herself and children and for the benefit of the estate, brings ¡this suit under the act of Congress of April 22, 1908, as amended April 5, 1910; that at the time of his death Rodgers was earning wages at the rate of $75 per month; that he was sober and industrious, and contributed all that he made to the support and maintenance of his family. She prayed for .damages to the estate in the sum of $5,000 and to the next of kin in the sum .of $6,000.

Appellant moved to require the appellee to elect between the cause of .action for the benefit of the estate and the cause of action on account? of the loss of pecuniary support. The motion was overruled and appellant duly saved its exceptions.

The appellant .answered, denying the material allegations of the complaint, and setting up the .affirmative defenses of assumed risk and ¡contributory negligence. The cause was submitted to the jury upon instructions, upon which we will comment in the opinion. There was a verdict in favor of the appellee in the sum of $2,000. After the verdict was read, and before the court had accepted it, both parties being present, the appellant asked the court to direct the jury to apportion the amount of the verdict between the two causes of action for deceased’s pain and suffering and for pecuniary .loss to the next of kin so as to show what sum they found on each. The' court refused to direct the jury to apportion their verdict, and appellant duly excepted.

*265From a judgment entered in favor of the appellee in the sum of $2,000 this appeal has ‘been duly prosecuted. Other facts stated in the opinion.

E. B. Kinsworthy, R. E. Wiley and'IF. D. Crawford, for appellant.

1. The court erred in refusing- to require the plaintiff to elect which cause of action she would prosecute. This question having been determined adversely to our contention in other cases, it is raised now merely to save the question.'

2. It was error, an abuse of 'discretion, for the court to refuse to require the jury to apportion the award of damag-es. “Though the judgment may be for a gross amount, the interest of each beneficiary must be measured by his or her individual pecuniary loss. That apportionment is for the jury to return.” 228 U. S. 173, 156 Ky. 550.

3. The third instruction .given at plaintiff’s request is erroneous. The correct rule is stated in instruction 11, given at appellant’s request, .and the request for the giving of the latter amounts to .a specific objection to the former. 229 U. S. 114; St. Louis S. W. Ry. Go. v. Anderson, 117 Ark. 41; 104 Ark. 67.

4. In the fourth instruction given for plaintiff, the court erred in charging the jury that they might consider as one of the elements of damage “the care and attention, instruction and training, one of his disposition and capacity * * * might reasonably be expected to give his wife and children, which was lost to them :by this- death.”

There is nothing in the statute to permit the plaintiffs to recover for the loss of care and attention, instruction and training which deceased might have given his wife and children. 227 IT. S. 59. The effect, of the instruction, so far as the wife was concerned, was to permit her to recover for the loss of the society of her husband; and a similar objection may be raised as to daughter who is of age and has been living away from home. 13 Cye. 371; 98 Ark. 413.

*2665. The court in instruction 6 had told the jury that deceased assumed “the ordinary .and usual risks of the occupation. ’ ’ In instruction 7, requested by appellant, they were told that he would be held to have assumed those risks which were known to. him or were plainly observable. The court erred in refusing to give this instruction. 220 U. S. 590.

McRae & Tompkins, for appellee.

1. A refusal of the court to have the jury apportion the verdict is no cause for complaint on the part of a defendant in a personal injury action of this kind. 101 Ark. 436; Id. 424-426; 112 Ark. 305.

While there can be only one recovery, it is none the less true that the action which accrued to the injured party if he had survived can be added to that which accrued on his death to. the 'widow and children, or next of kirn 106 Ark. 421 ,• 227 U. S. 59; 232 U. S. 363. The request to require the jury to apportion the verdict was in the nature of asking a special .finding, and such a request comes too late after the return of a verdict. Moreover, it is a matter within the discretion of the court. 38 Cyc. 1915.

2. There was no error in the third instruction. It follows the exact language of 'the statute, and is free of the Objectionable words criticised in the Earnest case, 229 U. S. 114, relied on iby .appellant. Instruction 3 declares the statute, and instruction 11, given for appellant, explains it.

3. There is no error in the fourth instruction. If counsel had by specific objection called the court’s attention to the wife being included in the care, attention, instruction, etc., the court might have stricken that word out, but it is too late to raise that question now. The cases cited do not hold that those are improper elements of damages for the wife. 35 U. S. Sup. Ct. Rep. 140,144; 227 U. S. 59, 71, 73. See also 112 Ark. 305.

*267Certainly, the wife is entitled to recover for “care and attention’ ’ iand the jury-would know that “instruction ■and training” applied to the children onlly.

4. Bequested instruction 7 was properly refused. An employee does not .assume an extraordinary- risk caused by the master’s negligence, -unless he knows if, appreciates the danger, and voluntarily exposes hifnself to the danger. 103 Ark. 61; 77 Ark. 367; 90 Ark. 555; 98 Ark. 145-150.

Wood, J.,

(after stating the facts). We will consider the assignments of error in the order presented ¡by appellant’s counsel.

(1) There was no error in refusing to require the appellee to elect between the cause of action for the benefit of the estate and that for the pecuniary loss to the widow and next of kin. K. C. S. Ry. Co. v. Leslie, 112 Ark. 305-327; St. Louis & S. F. Ry. Co. v. Conarty, 106 Ark. 421.

(2) There was no error in refusing to require the jury to apportion the award of -damages so- as to show what sum they found on the cause of action for deceased’s pain .and -suffering and the cause of action in favor of the •deceased’s 'widow and next of kin for their pecuniary loss. In Gulf, Colorado & Santa Fe Ry. Co. v. McGinnis, 228 U. S. 173-176, it is- -said: “Though the judgment may be for a gross 'amount, the interest of each beneficiary -must be measured by his or her individual pecuniary loss; that apportionment is for the jury to return. This will, of course, exclude any recovery in behalf of such as -show no pecuniary loss.”

In St. Louis, I. M. & S. Ry. Co. v. Hesterly, 228 U. S. 702, it is held that under the -act only one recovery can be had. And in Taylor v. Taylor, 232 U. S. 363, it was held that the act under consideration supersedes all State statutes upon the subject covered by it, and that the distribution of the amount recovered in .an alotion for the death of an -employee is determined by the provisions of the Federal ¡statute and not by the State laws. See also Railway v. Hesterly, supr a.

*268There is nothing in any of these decisions that requires that the jury, in returning their verdict, should apportion the damages between the two causes of action, showing the amount allowed for the deceased’s pain and suffering ¡and the amount .allowed for pecuniary loss to the widow and next of kin. The statute .and the amendment, as we construe it, does not require that there should be any such apportionment. It does require that there “shall be only one recovery for the same injury,” and the personal representative is entitled to recover only for the benefit of those surviving relatives of the deceased employee who derived pecuniary assistance from him during his life, and who, therefore, were entitled to compensation for the pecuniary loss resulting to them from 'his death. As was said in the case of Railway Company v. McGinnis, supra, “The recovery, therefore, must be limited to compensating those relatives for whose benefit the •administrator sues as .are shown to have sustained some pecuniary loss. ’ ’

The appellant did not ask (the court to instruct the jury that it could find no damages in favor of the daughter of Rodgers, who was of age and who .was not shown to have been receiving any pecuniary assistance from her father. The request to apportion the verdict between damages for pain and suffering and damages for the pecuniary loss to. 'the next of kin did not include such request. Appellant did not ask the court to make a ruling to this effect, and it is therefore not in ’an attitude to complain. No possible prejudice could have resulted to appellant in the ruling of the court refusing to. require the jury to apportion the verdict. The .amount of the verdict was $2,000. This was not .an excessive amount, even though it had been for only one of the causes of action. The evidence was amply sufficient to sustain it as a recovery for the peicuniary loss alone to the widow and infant son.

(3) Objection is urged to the following instruction which was given at .appellee’s request:

*269“3. The defendant pleads that the deceased was. guilty .of contributory negligence. You .are to'ld that the burden is upon the defendant to show such contributory negligence, if any, by the greater weight of the evidence. Even if you should believe that the deceased was guilty of contributory negligence, this would not preclude a recovery by the plaintiff; but you should reduce the amount of the verdict in proportion to the amount of the negligence attributable to the deceased. ’ ’

This instruction follows the language of the statute on the subject of contributory negligence. The court granted the appellant’s prayer No. 11, telling the jury, in effect, that where the deceased’s negligence contributed to his injury that “the damages .should be diminished in the proportion that deceased’s negligence bears to the .combined negligence of the deceased and the defendant. ’ ’

In Norfolk & Western Ry. Co. v. Earnest, 229 U. S. 114-122, it is said: “The statutory direction that the diminution shall be ‘in proportion to the .amount of negligence attributable to such employee’ means, and can only mean, that, where the causal negligence is partly attributable to him and partly to the carrier, he shall not recover full damages, but only a proportional amount bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both; the purpose being to abrogate .the common law rule completely exonerating the carrier from liability in such a case .and to substitute a new rule confining the exoneration to .a proportional part of the damages corresponding to the amount of negligence attributable to the employee. ’ ’

There is no conflict in the instructions, and when considered together the jury could not have possibly been misled to the prejudice of the appellant. Instruction No. 3, given .at the instance of appellee, follows the exact language of 'the ¡statute, and instruction No. 11, given at the instance of the ¡appellant, explains what the statute means, in accord with Norfolk & Western Ry. Co. v. Ear *270 nest, supra. See also St. Louis S. W. Ry. Co. v. Anderson, 117 Ark. 41.

(4) The appellant complains because the court permitted the jury to consider ¡as one of the elements of damage “the care and attention, instruction and training, if any, one of Bodgers ’ disposition,,and capacity, as shown by the evidence, might reasonably be expected to give his wife .and children, which was lost to them toy his death. ’ ’

The instruction was correct ,so far as it applied to the infant child of the deceased. See Norfolk & West. Ry. Co. v. Sarah E. Holbrook, Admx., 235 U. S. 625; Mich. Cent. Rd. Co. v. Vreeland, 227 U. S. 59; Railway Co. v. Sweet, 60 Ark. 550; Railway Co. v. Leslie, supra.

The jury, as sensible men, must have understood that the instruction and training mentioned referred to deceased’s ¡children. Moreover, there is nothing in the ■amount of the verdict to indicate that it w:as the result of ■any passion or prejudice. The instruction complained of only related to the measure of ¡damages, and the amount is so much less than the jury might have found for the pecuniary loss to appellee and her minor ¡child, it can not toe ¡said that the instruction, even if erroneous, in any way prejudiced appellant’s rights.

(5) The court did not err in refusing appellant’s prayer for instruction No. 7, in which the appellant ■sought to have the jury told that the deceased Bodgers ¡assumed “those unusual and ¡extraordinary risks -that were plainly observable to the eyes of an ordinarily prudent man,” etc.

In ¡appellant’s prayer for instruction No. 6, the court told the jury that Bodgers, when, he entered the employ of the appellant, “assumed the risk of the ¡ordinary and usual dangers of the occupation, and told them that if they ‘¡believed from the testimony that Bodgers’ injury and death resulted from one of the ordinary and usual dangers to which brakemen are exposed in the course of their work as usually and customarily conducted,” the verdict should toe for the defendant.

*271Under the evidence this- instruction was all that was demanded and -all that it was proper to give to -correctly ■suhonit the issue of assumed risk. There was no testimony to warrant -a,submission to the jury of the issue as to whether there was an unusual risk which was so obvious that Rodgers must -have known and -appreciated the danger arising therefrom. See St. Louis, I. M. & Sou. Ry. Co. v. Vann, 98 Ark. 145-150. The instruction, as an abstract proposition of law, was not correct, because it failed to make ia -proper distinction ¡between contributory negligence -and a-ssumed risk. See Choctaw, Oklahoma & Gulf Rd. Co. v. Jones, 77 Ark. 367; St. Louis, I. M. & Sou. Ry. Co. v. Holman, 90 Ark. 555; St. Louis, I. M. S Sou. Ry. Co. v. Owens, 103 Ark. 61.

(6) This is the second appeal in this case. The cause was reversed on the first appeal 'because the evidence was not sufficient to sustain the verdict. On the trial from which this -appeal -comes there were new developments and material changes in the evidence which it wonl-d unnecessarily lengthen this opinion to discuss. It was proper to submit to the jury the issues of negligence, contributory negligence and assumed risk, under the testimony -discl'osed by this record. The instructions are free from error and there was evidence to sustain the verdict.

The judgment is therefore correct, and it is affirmed.