#### MARY M. SPEIGHT v. SEABOARD AIR LINE RAILWAY.

(Filed 4 December, 1912.)

1. Instructions — Construed as Whole — Objectionable in Part.

The charge of the judge to the jury must be construed as a whole, and one part in connection with the other parts of the *81charge; and objectionable parts standing alone will not be held for reversible error if the entire charge is correct.

2. Instructions — Negligent Killing — Measure of Damages — Expectancy — Mortuary Tables — Earning Capacity — Evidence.

In this action to recover damages for the alleged wrongful killing of plaintiff’s intestate, the charge of the court is approved on appeal, as to the evidence of intestate’s expectancy from the mortuary tables, the weight the jury should give them, and how they should consider the testimony of the intestate’s earning capacity, illustrating his meaning from the evidence, and as to finding by deducting his expenses, etc., the net present loss his negligent killing has caused to his estate.

3. Same — Arguments to Jury — Corrections—Appeal and Error.

In this action to recover damages for the negligent killing of plaintiff’s intestate, wherein defendant’s counsel argued to the jury that evidence of the intestate’s negligence should be considered upon the issue as to the measure of damages, the judge, in undertaking to correct any erroneous impression made thereby, properly instructed the jury that they should not consider the negligence of the intestate under that issue, and that evidence of his conduct, character, and habits were only relevant on the question of his earning capacity, and further Held that the charge was not to plaintiff’s prejudice.

4. Instructions — Construed as a Whole — Negligent Killing — Measure of Damages — Expectancy—Earning Capacity — Appeal and Error.

When damages are sought for the negligent killing of plaintiff’s intestate, their measure should not be determined conclusively upon his earning capacity at the time of his death; and while the charge of the judge in this case, by the use Of the words, “what he was making,” if taken, alone, may be objectionable, it is not held for reversible error in connection with other pertinent parts of the charge, that evidence of intestate’s habits, etc., was to aid the jury in determining whether he was industrious and would be constantly employed; that the mortuary tables were evidence only of his expectancy, and that the jury must ascertain from all the evidence what his income would be.

5. Instructions — Negligent Killing — Illustrations by Court — Appeal and Error.

After illustrating from the mortuary tables in evidence, and testimony as to the intestate’s earning capacity, in an action to recover damages for his negligent killing, it appears that the judge carefully instructed the jury that they must not accept *82the figures named, as they might be incorrect, and that they were used merely as an example: Held, not an expression of opinion upon the evidence, and no error.

6. Instructions — Negligent Killing — Measure of Damages — Expenses —Witnesses Interested.

Upon the issue of the measure of damages, in an action to recover for the intestate’s alleged negligent killing, and to find the net loss occasioned by the wrongful death, the mother of intestate testified that he was put to no (expense for his washing, for she did that for him: Held, it was proper for the judge to explain to the jury that the interest of this witness should be considered, and the charge, upon the evidence in this case, is approved.

7. Judgments — Contingencies — Agreements — Appeal and Error— Procedure.

In this action for damages for the alleged negligent killing of' plaintiff’s intestate, a certain part of the judgment ordering the plaintiff’s attorneys’ fees be paid by the clerk upon the parties entering into a certain written agreement, is Held improper and stricken out on appeal.

Appeal by plaintiff from Peebles, J., at July Term, 1912, of RICHMOND.

This is an action to recover damages for tbe negligent killing of the plaintiff’s intestate.

The jury returned the following verdict:

1. Was the plaintiff’s intestate, Arthur Speight, injured and killed by the negligence of the defendant, as alleged in the complaint? Answer: Tes. ^

2. Did the plaintiff’s intestate, by his own negligence, contribute to his own injury and death, as alleged in the defendant’s answer? Answer: Yes.

3. If so, notwithstanding the contributory negligence of the plaintiff’s intestate, could the defendant, by the exercise of ordinary care, have avoided the injury and death? Answer: Yes.

4. What amount of damages, if any, is the plaintiff entitled to recover of the defendant? Answer: $2,500.

Judgment was entered upon the verdict, and the plaintiff appealed, upon the ground of errors on the trial of the fourth issue.

*83The charge of bis Honor on the fourth issue was as follows :

“Now, if you answer the first issue and the third issue 'Yes/ then you will come to the fourth issue, ‘What amount of damages, if any, is plaintiff entitled to recover of the defendant?’ In respect to something said in regard to deducting some damages from your verdict for the reason that the intestate was negligent in getting out on that track, that is not the law in this case, and you must not consider his negligence at all. (The plaintiff is entitled to .recover whatever the next of kin lost by the death of the intestate, and it does not make any difference whether the boy was a good boy, a bad boy, a negligent boy, or hard-working. This evidence is simply to give you an idea as to the capacity of the man to earn money. If a bad man could earn as much as a good man, his next of kin would lose just as much. Those matters are just simply put before you in order that you might determine whether the deceased might be constantly employed and be an industrious employee.) The rule laid down by the Supreme Court is that you must ascertain as best you can how long the deceased would have lived if he had not been killed. In order to do that, the statute says you can introduce and consider the mortuary tables, because those tables are calculated by insurance people who have studied the matter thoroughly, and they have calculated with a view to try to find how long a man is expected to live when making calculation for insurance, and the Legislature has adopted that; and the mortuary tables say that where a man is 18 years old he is expected to live 43% years longer, making him 61 years old, I believe. Now, that is not an iron-clad rule — not one you have got to be governed by absolutely. (It is to aid you in coming to a conclusion as to how long the deceased would have lived. In coming to that conclusion, it is your duty to take into consideration his habits, as to health, sobriety, etc.) You are not bound to find that he would have lived 43% years longer, or that he would not have lived longer than that. You may find that he would have lived a longer or a shorter time. (Then after you determine how long he would have lived, you must ascertain as best you can, from all the evidence, what his income would be a year, *84tben take bis gross income, wbat be was making, and tben deduct wbat bis personal expenses would likely be, and take tbe expenses from bis annual gross income, and tbe balance would be tbe net earnings for one year.) (Now, upon that subject there are two witnesses, one for tbe plaintiff, saying it would cost $35, one saying it would not cost bim anything. Mrs. Speight said she did bis washing, etc., but as a matter of law that is not tbe rule, as no one can tell bow long she would continue to do that. You are not to be governed by wbat somebody else gives him.)”

His Honor tben made a calculation and said:

“Now, of course, you are not bound to find that be would work 365 days in tbe year, never be sick, or have doctor’s bills. These are all matters for you; tbe court cannot help you about that. (Tbe evidence is, be was getting $36 per month, and I am taking it as an example to explain to you bow tbe matter is done. You must not take wbat 1 took here, as tbe figures I have used might be incorrect. I divide tbe difference between tbe two witnesses — one said $35 per month, and one said nothing — and I divide it and put it down at $15 per month as tbe net income after paying all-personal expenses.) As I said before, this is just taken as an example to explain to you hoW tbe matter is done. You are not to conclude that I have expressed any opinion as to wbat you ought to find. As I said before, you are not bound to find that be would live 43% years; you may find that be would live a longer or a shorter time. Take everything into consideration and find out as best you can bow long be would have lived and wbat bis personal expenses would be per year. (His mother said be did outside work to pay for bis washing and bis board; cut wood, drew water. When you go to consider her testimony, it is your duty to consider tbe interest which she has in tbe result of this suit. According to tbe law, prior to 1868 in civil cases, and 1881 in criminal cases,’evidence of parties interested in tbe suit could not go before a jury at all; tbe law assumed that they were so prone to be biased in their own interest that they were not allowed to testify at all. That law was very properly changed, and now anybody interested in tbe result of tbe suit, whether criminal or civil, .can go *85upon tbe stand and testify. But it is your duty to carefully consider the testimony of the plaintiff and ascertain as best you can what influence the interest she has in the suit would have upon the truthfulness of her testimony; and take into consideration all the testimony.) . If you find that she told the truth, then you must give to her testimony the same faith and effect that you would to the testimony of any disinterested witness. (The first young man who said his expenses would be $35, that was an estimate of his; the plaintiff cannot ask you to say he told a lie, because, as the plaintiff’s witness, she could not im.peach him; you can take his testimony for what it is worth.)”

The plaintiff excepted to the portions of the charge in parentheses.

Douglass, Lyon & Douglass and Lorenzo Medlin for plaintiff.

W. II. Neal, and Murray Allen for defendant.

Allen, fl.

If we were, permitted to consider the portions of the charge excepted to by the plaintiff, alone and not in connection with other parts of the charge, we might conclude there was prejudicial error; but we cannot do so.

“The charge and every part thereof is given to the jury for their instruction and guidance, and they must consider it as a whole. They have no right to select such parts as suit themselves and reject the remainder, nor can counsel be permitted to do so upon an appeal to this Court. Such a course would be grossly unfair to the trial judge and would make the ultimate determination of causes depend more upon the skillful fencing of legal swordsmen than upon the merits. It is entirely proper for the court to explain or even correct any preceding portion of its charge, if in its opinion it is necessary to present the case fairly and fully. This is so well settled as scarcely to require the citation of authority. Cowles v. Hall, 90 N. C., 330, 333; Lewis v. R. R., 95 N. C., 179, 188; S. v. Keen, ibid., 646, 648.” Everett v. Spencer, 122 N. C., 1011.

“In construing an instruction given by the trial judge, the entire charge will be examined and language, excepted to read in connection with the context.” Liles v. Lumber Co., 142 N. C., 39.

*86The charge must be taken in its entirety, and not in “broken doses.” Wilson v. R. R., 142 N. C., 333.

This principle has been approved in Westbrook v. Wilson, 135 N. C., 403; S. v. Malone, 154 N. C., 200; Brazille v. Barytes Co., 151 N. C., 454, and in numerous other cases, and when applied to the charge before us, we find no reversible error.

The rule stated by his Honor for the admeasurement of damages in the event of death was in accordance with precedent. Pickett v. R. R., 117 N. C., 616; McLamb v. R. R., 122 N. C., 862; Mendenhall v. R. R., 123 N. C., 275; Watson w. R. R., 133 N. C., 188; Gerringer v. R. R., 146 N. C., 32.

The charge in the Mendenhall case has been specially commended, and in the Watson case it was suggested that it would not be improper to illustrate the rule by calculations.

The language criticised in the first exception was favorable to the plaintiff. One of the counsel for the defendant had argued before the jury that some damages ought to be deducted on account of the negligence of the intestate in going on the track, and his Honor undertook to correct any impression made against the plaintiff by the argument, by telling them that they could not consider the negligence of the plaintiff under the fourth issue, and that evidence of his conduct, character, and habits were only relevant on the question of his earning capacity.

The charge as to the effect of the mortuary tables is fully sustained by authority. Russell v. Steamboat Co., 126 N. C., 967; Sledge v. Lumber Co., 140 N. C., 461.

It would have been erroneous to instruct the jury that the gross income of the deceased was to be ascertained upon the basis of his earnings at the time of his death, and the use of the language, “what he was making,” the subject of the third exception, might lead to the conclusion that he intended to do so, but when considered in connection with the context, it could not have misled the jury.

His Honor had instructed the jury that evidence of habits, etc., had been introduced in order that the jury might determine whether the deceased would be constantly employed and industrious ; that the mortuary tables and evidence of habits, health, and sobriety were introduced for the purpose of ascertaining his *87expectancy, and immediately preceding tbe language complained of, tbat they must ascertain from all tbe evidence what his income would he.

Tbe jury were not instructed not to consider tbe evidence of Mrs. Speigbt, but tbat it was not controlling, and tbat tbe rule was not wbat some one would give bim, stating clearly tbat tbe net income was to be ascertained by deducting tbe personal expenses of tbe deceased from bis gross income during bis expectancy, and tbat tbe plaintiff was entitled to recover tbe present value of bis net income.

Tbe plaintiff does not challenge tbe correctness of bis Honor’s calculations nor tbe matbematical rule adopted by bim, but contends tbat be usurped tbe powers of tbe jury, and in effect expressed an opinion on tbe weight of tbe evidence.

An examination of tbe charge shows tbat tbe jury were carefully instructed tbat they must not accept tbe figures named, as they might be incorrect, and tbat they were used merely as an example.

It was proper to explain to tbe jury tbat tbe interest of Mrs, Speigbt should be considered, and we find no expression of opinion in tbe last clause of tbe charge excepted to.

There is an exception to evidence in tbe record, but bis Honor states tbat this exception was not entered at tbe trial.

There is nothing in tbe record which justifies or supports tbat part of tbe judgment providing tbat, “In case Willis Speigbt and plaintiff file with tbe clerk a written agreement as to a reasonable fee for plaintiff’s attorneys, then tbe clerk will pay over to said attorneys said fee. If said Willis Speigbt and plaintiff can agree upon a division of tbe balance, then tbe said clerk iss authorized to pay it out to them,” and it is ordered tbat it be stricken out.

Modified and affirmed.