#### B. A. IRVIN, Administrator, v. SOUTHERN RAILWAY COMPANY et al.

(Filed 26 November, 1913.)

1. Railroads — Federal Employer's Liability Act — Transactions with Deceased — Interest—Evidence—Interpretation of Statutes.

In an action brought by the administrator of the deceased, for the benefit of the mother, under the Federal Employer’s Liability Act, to recover for the pecuniary loss she has sustained in the *6negligent killing by tbe defendant railroad company of her son, it is competent for her to testify as to what pecuniary benefits she had received from her son, such testimony, though she is interested in the event of the action, not being against the representative of a deceased person and prohibited by Revisal, sec. 1631. Bunn v. Todd, 107 N. C., 266, cited and applied.

2, Railroads — Federal Employer’s Liability Act — Prospective Benefits — Support of Parent — Evidence, Material — Argument to Jury —Instructions—T rials.

An action may be sustained under the Federal Employer’s Liability Act brought by the administrator of the deceased employee • for the’benefit of. his parent, for the reasonable expectation of pecuniary benefit from the continuance of the life of the child, although the child has not contributed to the support of the parent, but evidence of contributions when made by the child to the support of the parent is material and important in determining whether such reasonable expectation exists, and also as to the amount of the recovery. Therefore, where the parent has not testified as to the pecuniary benefits he had received during the life 'of the child, it is competent for the defendant’s attorney, in his argument to the jury, to comment on this fact; and while matters of this character are largely left within the discretion of the trial judge, he may not deprive a party litigant of .the benefit of-his counsel’s argument when made within proper bounds and addressed to the material facts of the case; and his doing so, in this case, is held for reversible error, especially as it appears that the error was accentuated by a refusal of a special prayer for instructions tendered by the defendant, that there was no evidence of contribution by the son to the support of the parent, and a charge that the jury may consider what support he had given, when there was no evidence thereof.

3. Railroads — Engineer —Joint Actions — Negligence—Trials—Instructions.

The railroad company and its engineer were jointly sued for the negligent killing of plaintiff’s intestate while endeavoring to hold, with another employee, a long pole between' the engine and caboose car, so that the latter could be pushed clear of the track at a crossing it was necessary for the former to pass over. There was evidence tending to show that the engineer was not negligent, which was found to be true by the jury and included in their verdict, but as to the defendant railroad company they found affirmatively upon the issue of negligence upon evidence tending to establish it as to other employees: Held, á prayer for special instruction should have been given as requested by the defendant *7railroad company, that if they found the engineer not negligent, his acts or conduct would not support an affirmative answer to the issue as to the company’s negligence and should not be considered in determining its negligence; and a charge held for reversible error, that the defendant, acting necessarily through its employees, was responsible for any acts of negligence on the part of the train crew which proximately • caused the injury complained of.

4. Issues — Assumption of Risks — Trials—Instructions.

In this action to recover damages from a railroad company for the negligent killing of plaintiff’s intestate, an additional issue to those of negligence and contributory negligence is suggested as to the assumption of risks, the jury to be instructed in their, answer thereto upon their finding as to a certain phase of the controversy with respect to the conduct of the defendant’s engineer in signaling the engine forward at the time of the injury. Horton v. B. B., 162 N. Cs, 424.

Clark, C. J., concurs in result.

Appeal by defendants' from Cooke, J., at Mareb Term, 1913, of Forsyth.

This is an action under tbe Federal Employer's Liability Act, to recover damages for tbe alleged wrongful death of plaintiff’s intestate and son, Leonard C. Ervin, caused by. being caugbt between an engine and a freight caboose in tbe cburse of a switching movement by using a push pole on tbe yards at Rural Hall, North Carolina.

Tbe engineer, W. D. Thomas, was made a party defendant, and filed an answer, tbe jury answering tbe issue directed at bis conduct and tbe allegations of negligence in respect thereto in bis favor.

Tbe deceased was a member of tbe crew, acting in tbe capacity of flagman, and was 23 years old when be was killed. Tbe train, which was a freight train, bad just come in from Mount Airy. While tbe conductor was up at tbe station, getting tbe bills from tbe station agent, preparatory to checking tbe cars that were to be put into bis train, tbe engineer- and tbe fireman, who were on tbe engine, together with Irvin, O’Neal, and Wall, were endeavoring to get tbe caboose at a point on tbe yard where it could be placed at tbe rear of the train. To do this, *8it was necessary to get it over and across a switch or “crossover,” where the Wilkesboro main line and the Mount Airy main line converge. The first effort made in this direction was to push the caboose on a knoll and release the brakes, expecting gravity (it being down grade) to take it across the switch. This failed, however, the caboose getting only partially across the switch, thus blocking it, and preventing the engine from getting to a necessary portion of the yard. It was necessary to get the caboose out of the way, and from across the switch. It was while endeavoring to do this that Irvin was killed.

The switch on which the caboose stood was a cross-over switch, the caboose having come down from the knoll on one track while the engine stood on another, these tracks crossing at the switch. The method employed was to get a pole, carried on the side of the tender for that purpose, which was 8 feet 4 inches long and some 6 inches in diameter, weighing about 74 pounds, and put one end against the end sill of the caboose where it was held by Irvin, and let the engine come up and strike the other end, which was held by Wall, thus giving the caboose sufficient momentum to- clear the switch by shoving it forward on the track it came in on from the knoll, while the engine (the switch being thrown by O’Neal) would proceed across the switch along the same track it stood on.

The pole, which was called a push pole, would be at a slight angle. At the time the push pole was taken down by Irvin, the conductor was still in the neighborhood of the station, but the evidence of the plaintiff tended to- prove that he was present when the intestate was killed and gave the signal to the engineer to move forward. No evidence was introduced that the intestate had ever contributed to the support of his mother.

After setting forth in paragraph 5 that the conductor “was personally present, standing within a few feet of plaintiff’s intestate at the time he was injured, and directed plaintiff’s intestate in the discharge of his duties at said time, and gave the signal to the engineer to come forward with the engine,” the complaint proceeds to charge negligence as follows: That the deceased was negligently ordered to hold the push pole “against the end of the caboose car, which was standing near the inter*9section of the main track and a side-track, while another employee was holding the other end of the pole, so that the engine” would in moving’ up come in contact with the pole, thereby giving the caboose car sufficient momentum to get it off the switch; that the deceased was “negligently required to stand at the crossing under the direction of the conductor, and hold his end of the pole against the caboose”; that there was no socket on the caboose to hold the end of the pole up against the caboose; that the engine was. an old engine without sufficient brakes, and otherwise defective, and that the pole was old and not strong enough to do the work; that the engineer was not a prudent and careful engineer, and negligently and at an excessive speed brought the engine in contact with the pole, “causing the pole which plaintiff’s intestate was holding against the caboose to bend and slip,” thereby catching the plaintiff’s intestate between the engine and caboose; that the manner in which the work was being done was negligent ’and irregular.

As a result of failure of proof by the plaintiff, the jury was instructed not to consider the following allegations: (b) That the -intestate was ordered to use the push pole; (c) That the intestate was required by the conductor “to stand at the crossing and hold his end of the pole against the caboose”; (J) That the engine was an old engine, without sufficient brakes and otherwise defective; (e) That the push pole was old and not strong enough.

The following is the whole of his Honor’s charge on the allegations of negligence left to the jury:

“This is an action brought by the administratrix of Leonard 0. Irvin to recover damages for the death of her intestate,' which she alleges was caused by the negligence of the defendants, and the court charges you it is the duty of a railroad company, or its servants and agents, when engaged in operating a train, to be continuously in the exercise of reasonable care to avoid injury to its servants, as well as its passengers, and if there shall be a failure to perform such duty and in consequence thereof one is killed or injured, that shall be negligence, and if the jury should find by the greater weight of the evidence that such negligence was the proximate cause of the injury, that would be actionable negligence.

*10“Reasonable care is such, degree of care as a prudent man should use under like circumstances and charged with a like duty.

“Proximate cause' of an injury is one which produces the result in continuous sequence and without which such injury would not have occurred, and from which any man of ordinary prudence could foresee that such result was probable, under the facts as they existed. . . . Now, applying these principles of law to the facts in this case, the court instructs the jury that if they shall find by the greater weight of the evidence that the defendant, the railroad company, through' its servants or agents who were operating the train by which the plaintiff was killed, and W. D. Thomas, the engineer, failed to exercise reasonable care — both of them — for the safety of its crew, and in consequence thereof the plaintiff was killed; and if the jury shall further find by the greater weight of the evidence that such failure was the proximate cause of the injury, then they shall answer that issue ‘Yes’ as to both of them. If they should so find as to only.one of the defendants, they should answer ‘Yes’ as to one, and name the one. If they should not so find as to either one of the defendants, they should answer that issue ‘N o’ — ‘N othing.’

“If any of that negligence or any negligence which resulted in the death of the intestate was caused by the negligence of any one of the crew who was on that train, and it was the proximate cause — as I have explained proximate cause of an injury— and the negligence was due to a want of exercise of reasonable care, then the railroad company is responsible, because they have to operate their train by agents, and if the death of the plaintiff was due to a want of exercise of reasonable care on the part, of any one who was representing the railroad company there in the operation of its train, it would be imputed to the railroad Company. • :

“So far as Thomas is concerned, the court charges you that notwithstanding Thomas was the engineer, and the conductor was there about the train, or whether he was there or not, or whether he was directed by the conductor to move it or not— *11doesn’t make any difference wby be did it — -if when be was proceeding witb that engine be saw, or by tbe exercise of reasonable care could bave seen, and it was a fact that be could not pass along there and move that car that they wanted to move’ — that is, tbe caboose — without imperiling tbe safety of tbe men who were bolding tbe end of tbe pole, ánd if that was tbel proximate cause of tbe injury, that is, bis moving down there, whether it was at, greater speed or not — if be saw be could not’accomplish it without great danger to tbe plaintiff, and that was tbe cause of tbe injury, then it was the proximate cause, and you will say 'Yes’ as to him.

Tbe defendant requested bis Honor to charge tbe jury: “If tbe jury find from tbe evidence that tbe defendant W. D. Thomas is not guilty of negligence, then in so far as the plaintiff seeks to charge the railway company by reason of bis conduct and acts witb respect to tbe movement and handling óf tbe engine, I charge you that such conduct and acts will not support an answer to tbe first issue, and you will not consider that phase of tbe case against tbe railway company.”

This was refused, and tbe defendant excepted.

During tbe argument of tbe counsel for tbe Southern Railway Company, tbe last one who addressed tbe jury in its behalf said to tbe jury in substance that bad Mrs. Irvin gone on tbe stand she could bave testified whether her son, during bis life, contributed to her support or not, and bow much. Whereupon tbe court stopped counsel, stating that if Mrs. Irvin bad gone on tbe stand as a witness she could not bave -testified to such a fact, and directed tbe jury not to consider such an argument. Whereupon, and at tbe time, tbe counsel of tbe Southern Railway Company objected to tbe ruling of tbe court, and upon tbe objection being overruled, excepted.

Tbe defendant requested bis Honor to charge upon tbe issue of damages: “Upon tbe question of tbe pecuniary value of tbe life of tbe deceased to bis mother, I charge you that there is no evidence that be gave any part of bis earnings to bis mother.” Refused, and defendant excepted.

His Honor charged tbe jury on tbe issue of damages as follows: “As this action is brought under tbe act of Congress *12known as the ‘Federal Employer’s Liability Act,’ its provision's govern the rights and liabilities of the plaintiff and the defendant, the Southern Railway Company, and all rules of law must be determined by and in accordance with its provisions, for it is absolutely exclusive as to the subject-matter of its provisions. The State law cannot govern in any aspect of the case.

“By virtue of the provisions of the Federal Employer’s Liability Act, the fact that an employee inay have been guilty of contributory negligence cannot, as it does under the State law, bar a recovery; but the damages, if the jury find -that the plaintiff is entitled to damages, shall be diminished in proportion to the amount of negligence attributable to such employee.

“The measure of damages in this case is hot the measure of damages obtaining under the State practice, to wit, the pecuniary value of the life of the intestate during its prospective continuance, but is the measure of damages as fixed by the Federal Employer’s Liability Act, and is brought for the benefit of some certain person, to wit, in this case, the mother; so that the measure of damages in this case is the loss in money caused the mother by reason of the death of her son. It is purely and entirely a money or financial loss. How much money has the mother been deprived of by the death of her son, computing the same at its present worth or value? It is not a question of how much the son could have made for his own use had he lived out his allotted time, but the present value of the sum his mother might reasonably have expected to receive from his earnings during her life, for the limit of time within which she could expect to receive financial aid from her son is the time which she could reasonably be expected to live:

“You must not undertake to give the equivalent or the value of human life. You will allow nothing for the suffering or sorrow of either the deceased or-his mother. You must not attempt to punish the railway company, but endeavor to give a fair and reasonable pecuniary value for the continuation of the life of the deceased to his mother.

“Therefore, you will consider what sum of money, paid at the present time, in a lump sum, would represent the fair value *13of what the mother had a reasonable right to expect, nnder all the circumstances, to receive from the earnings of her son, had he lived until her death.

“As a basis on which to enable you to make your estimate, it is proper for you to consider the wages the son was receiving, the age and health of the son, the fact that the son might have married and thereby made it necessary to use all or a part of his earnings in the support of his own family; you will consider the habits, prospect in life, industry and skill of the son, the business in which he was engaged, and its hazards as to life; you will consider how much of his earnings he spent on himself or otherwise, either for necessities or for other purposes, as distinguished from what he spent on or gave to his mother, if you find from the evidence that he contributed anything from his earnings to his mother; because the part of his wages that he spent on himself or for other purposes than that contributed to his mother, or what in the future she might reasonably expect he could contribute, would be entirely eliminated from your calculations.

“There is another limitation upon the amount that you will allow as damages, and that is this: You will allow only the present value of what you may find the mother has lost in money because of the death of her son; for she is getting now in a lump sum that which she would have received from time to time during a future period. By this you are not to understand that you are" to ascertain the number of years that the contributions to the mother from her son would probably continue, and then multiply such number of years by the amount of such probable yearly contribution, but you are to give a sum of money that will represent the present value of such contributions.

“The evidence you have heard as to the probable duration of the life of the mother, based upon the mortality tables of the insurance companies, is not conclusive upon the question, of the duration of her life. Such tables are submitted to you not to control you, but merely to guide you. They' are based upon averages, and there is no certainty that any person will live the average duration of life.

*14“Now, if you answer the first issue ‘Yes/ to wit, that the Southern Railway is chargeable with negligence, you should first consider the question of damages, without relation to the question of contributory negligence. If you find that the plaintiff’s intestate was guilty of contributory negligence, it would then be your duty to reduce the amount of damages in proportion thereto, since the act provides that damages shall be diminished in proportion to the amount of negligence attributable to the injured employee.

“I instruct you that this provision means this: If you find that the negligence of the two is equal, that is, that the railway company was guilty of negligence and the plaintiff’s intestate was guilty of equal negligence that contributed to the injury, you will reduce the damages one-half. If you find that the plaintiff’s intestate was guilty of more negligence than the railway company, then the damages should be reduced more than one-half. If he was guilty of less negligence than the railway company, then the damages should not be reduced as much as one-half.”

The following verdict was returned by the jury:

1. "Was the plaintiff’s intestate killed by the negligence of the defendant, the Southern Railway Company, -and of William D. Thomas, or either one of them, and if only one, which one, as alleged in the complaint? Answer: Yes; Southern Railway.

2. Did tie plaintiff’s intestate, by his own negligence, contribute to his injury, as alleged in the answers of the defendants, the Southern Railway Company and William D. Thomas ? Answer: No.

3. What damage, if any, is the plaintiff entitled to recover? Answer: $8,000.

Judgment was entered upon the verdict for $6,000, the plaintiff having consented to the reduction, and'the defendant appealed.

.'Watson, Buxton & Watson and D. L. Ward for plaintiff.

Manly, Hendren & Womble for defendant.

Allen, J.

We will first consider the exception to the refusal Of his Honor to permit counsel for the defendant to argue that *15the failure of the sou to support the mother should be considered by the jury, and that if he had contributed to her support it would have been proven by the mother.

If the failure of the son to contribute to the support of the mother is a relevant circumstance, and the mother is a competent witness to prove the fact, there is error in the ruling.

1. Is the mother a competent witness to prove the fact of support ?

The only objection urged against her competency is under section 1631 of the Eevisal.

An accurate and comprehensive analysis of this section will be found in Bunn v. Todd, 107 N. C., 266, where the present Chief Justice says:

> “It disqualifies

> WHOM — 1. Parties to the action.

> 2. Persons interested in the event of the action.

> 3. Persons through or under whom the persons in the first two classes derive their title or interest.

A witness, although belonging to one of these classes, is incompetent only in the following cases: '

> WHEN — To testify in behalf of himself, or the person succeeding to this title or interest against the representative of a deceased person, or committee of a lunatic, or any one deriving his title or interest through them.

And the disqualification of such person, and in even such cases, is restricted to the following—

> SUBJECT-MATTER — As to a personal transaction or communication between the witness and the person since deceased or lunatic.

And even- to those persons and in those cases there are the following—

> EXCEPTIONS — When the representative of, or person claiming through or under, the deceased person or lunatic is examined in his own behalf, or the testimony of the deceased person or lunatic is given in evidence concerning the same transaction. Burnett v. Savage, 92 N. C., 10; Sumner v. Candler, 92 N. C., 634.”

*16Tested by this construction of the statute, the mother is a competent witness, because, while interested in the event of the action, she would not be testifying against the representative' of a deceased person, etc.

2. Is the failure of the son to contribute to the support of the mother a relevant circumstance?

We held in Dooley v. R. R., 163 N. C., 454, that an action may be .maintained under the Federal statute in behalf of a parent when there is a reasonable expectation of pecuniary benefit from the continuance of the life of the child, although the child has not contributed to the support of the parent, and the authorities which support this principle also hold that evidence of contributions by the child to the support of the parent is material- and important in determining whether such reasonable expectation exists, and in the assessment of damages which may be recovered, and .if such evidence is material and competent for the parent, the defendant may prove the contrary.

The mother is not only a competent witness, but in all probability the only witness, who would know all the facts, and it is held in Hudson v. Jordan, 108 N. C., 12, “that the introduction or nonintroduction of a party as a witness in his own behalf is the subject of comment exactly as the introduction or nonintroduction of any other witness would be.”

The conduct of counsel in presenting their causes to juries is left largely to the discretion of the trial judge, and that this discretion has been exercised liberally is shown by the following excerpt from 38 Cyc., 1471, where the author says: “Counsel may bring to- his use in the discussion of the case well established historical facts, and may allude to such principles of divine law relating to transactions of men as may be appropriate to the case. He may argue matters of which judicial notice is- bound to be taken, and state matters which the law presumes, and he may indulge in impassioned bursts of oratory, or what he may consider oratory, so long as he introduces no facts not disclosed by the evidence. It is not impassioned ora- , tory which the law condemns and discredits in the advocate, but the introduction of facts not disclosed by the evidence. It *17bas been beld tbat be may even sbed tears during tbe argument, tbe only limitation on tbis right being tbat tbey must not be indulged in to sucb excess as to impede or delay tbe business of tbe court.”

It does not seem tbat counsel in tbis case exercised all bis privileges; but however tbis may be, tbe discretion vested in tbe judge does not “include tbe right -to deprive a litigant of tbe benefit of bis counsel’s argument, when it is confined within proper bounds and is addressed to the material facts of tbe cáse.” Puett v. R. R., 141 N. C., 335.

We are, therefore, of opinion tbat tbe ruling of bis Honor was erroneous, and tbat it constitutes reversible error, because tbe defendant was not only deprived of tbe argument of its counsel on a material matter, but tbe error was accentuated when bis Honor refused to charge tbe jury, at tbe request of tbe defendant, tbat there was no evidence tbat tbe son gave any part of' bis earnings to bis mother, and assumed in bis charge there was sucb evidence, when there was none, by saying, “You will consider bow much of bis earnings be spent on himself or otherwise, either for necessities; or for other purposes, as distinguished from what be spent on or even gave to bis mother, if you find from tbe evidence tbat be contributed anything from bis earnings to bis mother.”

Tbe defendant was also entitled to have tbe jury instructed, as requested, tbat if tbey found from tbe evidence-that tbe defendant engineer was not negligent, bis acts and conduct would not support an answer to the first issue in favor of tbe plaintiff, and should not be considered in determining tbe liability of tbe railroad company.

We at first thought tbis might be treated as harmless, in view of the fact tbat tbe jury found tbat tbe engineer was not negligent and could not, therefore, be presumed to base their findings of negligence against tbe defendant company upon bis acts and conduct; but it not only appears tbat tbe prayer was refused, but also tbat bis Honor charged the jury: “If any of tbat negligence, or any negligence which resulted in tbe death of tbe intestate, was caused by tbe negligence of any one of tbe crew who was on tbat train, and it was tbe proximate cause — ■ *18as I bave explained' proximate cause of an injury — and tbe negligence was due to a want of exercise of reasonable care, tben tbe. railroad company is responsible, because they bave to operate tbeir trains by agents, and if tbe death of tbe plaintiff was due to a want of exercise of reasonable care on tbe part of any one wbo was representing tbe railroad company there in tbe operation of its train, it would be imputed to tbe railroad company.”

Tbe charge given is, of course, predicated upon a finding of negligence, but it fails to direct the minds of tbe jurors to tbe facts in controversy or to exclude tbe conduct of tbe engineer if be was not negligent.

.The principal benefit to be derived from a charge to tbe jury is not tbe statement- of propositions of law, but tbe elimination of irrelevant matters, and causes of action or allegations as to which no evidence has been offered, and thereby let tbe jury understand and appreciate tbe precise facts that are material and determinative.

As said by Merrimon, C. J., in S. v. Wilson, 104 N. C., 873: “The jury should see tbe issues, stripped of all redundant and confusing matters, and in as clear a light as practicable.”

Tbe prayer for instruction is a correct statement of tbe law upon an aspect of tbe case presented by tbe evidence, and as said by Justice Walker in Baker v. R. R., 144 N. C., 42: “We bave held repeatedly that if there is a general charge upon tbe law of the case1, it cannot be assigned here as error that tbe court did not instruct tbe jury as to some particular phase of tbe case, unless it was specially requested so to do. Simmons v. Davenport, 140 N. C., 407. It would seem to follow from this rule, and to be inconsistent with it if we should not so bold, that if a special instruction is asked as to a particular aspect of tbe case presented by tbe evidence, it should be given by tbe court with substantial conformity to tbe prayer.”

There must, therefore, be a new trial as between tbe plaintiff and tbe railroad company.

- We bave not discussed tbe refusal to submit an issue as to assumption of risk, because Ave expressed our views on this- ques*19tion in Horton v. R. R., 162 N. C., 424, and it is not necessary to repeat them; but we would suggest that the issue be submitted at the next trial and that the jury be instructed to answer it “No,” if they fin’d by the greater weight of the evidence that the plaintiff was injured by the negligent conduct of the conductor in signaling the engine forward.

We have set out the charge of his Honor on the issue of damages in full, because it involves a new question and is clear, accurate, and comprehensive, as applied to the facts of this case, but would, of course, have to be modified to fit other facts.

New trial.

Claek, C. J., concurs in result.