#### B. R. RAINES, Administrator, v. SOUTHERN RAILWAY COMPANY.

(Filed 19 May, 1915.)

1. Master and Servant — Contributory Negligence — Infants—Trials—Evidence —Instructions.

In an action to recover damages of a railway company for the negligent killing of plaintiffs intestate, a member of its section crew, there was evidence that the intestate, a boy between 15 and 16 years of age, was sent out to flag an approaching train, and was struck by this train and killed while endeavoring to do so. Held, the degree of care required of *190the intestate upon the issue of contributory negligence is that which a boy of his age and knowledge would have taken in the exercise of ordinary prudence, under the circumstances, also requiring that his contributory negligence, if established, should be the proximate cause of the injury; and an instruction which leaves out of consideration the elements of age, experience, and proximate cause constitutes reversible error.

2. Instructions, Contradictory — Appeal and Error — Harmless Error.

An erroneous instruction is not rendered harmless by another and correct instruction upon the same phase of the case, unless the former has been retracted or by a proper explanation the wrong impression made thereby has been eliminated from the minds of the jury.

3. Master and Servant — Railroads—Flagging Train — Contributory Negligence —Proximate Cause.

Where the plaintiffs intestate, an employee of defendant railroad company, has been run over or killed by an approaching train he had been sent out to flag, the negligent failure of the defendant’s employees thereon to stop the train, after discovering intestate’s dangerous position, will be regarded as the proximate cause of the injury, though the intestate himself may have theretofore been negligent in placing himself in such perilous position.

i. Master and Servant — Federal Employer’s liability Act — Contributory Negligence.

The Federal Employer’s Liability Act does not change the doctrine of contributory negligence except as to its legal effect upon the issue of damages, in reducing the amount as indicated in the act instead of being a defense to the action.

5. Master and Servant — Federal Employer’s Liability Act — Reasonable Expectation-Measure of Damages — Instructions.

The measure of damages recoverable by the father of an employee of a railroad company under the Federal Employer’s Liability Act is according to the reasonable expectation of the benefit which would accrue to the parent by the continuance of the life in question, and an instruction is erroneous which requires the plaintiff to satisfy the jury by the greater weight of the evidence that the intestate would have continued to contribute to the support of his father, and that, in that event, they should find the present worth of such contributions from the time he was killed.

6. Master and Servant — Federal Employer’s liability Act — Reasonable Expectation — Evidence.

In an action by the father to recover damages for the negligent killing of his minor son, under the Federal Employer’s Liability Act, there was evidence that the intestate was a boy in good health, earning $1.10 per day, contributed regularly to the support of his father; was sober, industrious, of the average intelligence for his age; that his conduct towards his father indicated a proper conception of his filial duty. Held, sufficient to be submitted to the jury upon the right of recovery for the reasonable expectation which the father had of benefit or pecuniary aid, or other advantage of gift or inheritance, if the death of the intestate had not been negligently caused by the defendant.

Appeal by plaintiff from Webb, J., at February Term, 1915, of BttN-combe.

The son of the plaintiff, who was named Bub Raines, was employed by the defendant as a member of the section crew on its line between *191Asheville, N. C., and Spartanburg, S. C., and at tbe time of tbe accident be bad been sent out to flag an approaching train. In attempting to do so, be was struck by tbe train and killed. At tbe time be was between 15 and 16 years old. "With reference to bis contributory negligence tbe court instructed tbe jury as follows: “If be sat down near the'track in a dangerous position — if you find be thought that be was far enough away — if be put himself in a perilous position on the railroad track, and he was killed, tbe court charges you that be would be guilty of contributory negligence, and it would be your duty to answer tbe second issue ‘Yes.’ ”

Upon tbe third issue, as to damages, tbe court charged tbe jury as follows : “There is no presumption in law that Bub Raines would have contributed to tbe support of bis father after be arrived at tbe age of 21 years, and tbe burden is on tbe plaintiff to satisfy tbe jury by tbe greater weight of tbe testimony that be would have continued to contribute to tbe support of bis father after be'arrived- at the age of 21 years; and tbe burden is also upon tbe plaintiff to satisfy the jury as to tbe amount of tbe contribution be would have made 'to.,bis father after arriving at tbe age of 21 years, and unless tbe jury are satisfied by tbe greater weight of tbe testimony that be would have contributed to tbe support of bis father after reaching tbe age of 21 years, then the jury could only award in this ease, if they come to tbe issue of damages, tbe present value of such contributions as you find from tbe evidence Bub Raines would have made to bis father from tbe time be was killed until be reached tbe age of 21 years.”

Exceptions were duly taken to these instructions and each of them.

Tbe jury returned tbe following verdict:

1. Was tbe plaintiff’s intestate, Bub Raines, killed by tbe negligence of tbe defendant Southern Railway Company, as alleged in tbe complaint?- Answer: “Yes.”

2. Did tbe plaintiff’s intestate, Bub Raines, by bis own negligence, contribute to bis death, as alleged in tbe answer? Answer: “Yes.”

3. What amount, if any, is tbe plaintiff entitled to recover ? Answer: “$192.”

Judgment- was entered thereon, and plaintiff appealed.

J ones & Williams for plaintiff.

Martin, Rollins & Wright for defendant.

Walker, J.,

after stating tbe case: Tbe charge as to contributory negligence and damages was erroneous. If the plaintiff was young and inexperienced, and was not provided with the means of giving tbe signal, with due regard to bis own safety, and by reason thereof be was killed while in tbe exercise of that degree of care for bis own protection which *192a person of bis age, intelligence, and experience would ordinarily have given under tbe circumstances, be would not be guilty of contributory negligence. Ensley v. Lumber Co., 165 N. C., 687; Alexander v. Statesville, 105 N. C., 527. In tbe case last cited we said: “Tbe rule of law in regard to tbe negligence of an adult and tbe rule in regard to tbat of an infant of tender years is quite different. By tbe adult there must be given tbat care and attention for bis own protection tbat is ordinarily exercised by persons of intelligence and discretion. If be fails to give it, bis injury is tbe result of bis own folly, and cannot be visited upon another. Of an infant of tender years less discretion is required, and tbe degree depends upon bis age and knowledge. Of a child of 3 years of age less caution would required than of one of 7; and of a child of 7, less than of one of 12 or 15. Tbe caution required is according to tbe maturity and capacity of tbe child, and this is to be determined in . each case by tbe circumstances of tbat case,” citing Murray v. R. R., 93 N. C., 92; Bottom v. R. R., 114 N. C., 699; R. R. v. Gladman, 15 Wall. (U. S.), 401; R. R. v. Stout, 17 Wall. (U. S.), 657; Morgan v. R. R., 38 N. Y., 455; Sb. and Redf. on Neg., sec. 49, and other authorities. All tbat is required of an infant is tbat be exercise care and prudence equal to bis capacity. Robinson v. Cone, 22 Vt., 213. Examined in tbe light of this rule, tbe instruction as to contributory negligence was too broad, and should have been restricted to its proper limits. If the decedent was standing too near tbe track, or at a place near tbe track which brought him within tbe zone of danger, and bis exposure to injury was not tbe result of any failure to exercise tbat degree of care which one of bis age and knowledge would have taken for bis safety under the circumstances, bis act would not necessarily be contributory negligence. He was not an intruder or “licensee,” within tbe rule of some of tbe cases cited by appellee. If a person places himself on a track in front of a moving-train, or too near thereto for safety, and does so willfully or designedly or negligently, be must take tbe consequences; but where tbe act was not willful (and it was not so in this case), it must have been negligent in order to authorize a finding of contributory fault on bis part, and tbe negligence must have been tbe proximate cause of tbe injury. Tbe court excluded this question of negligence from tbe consideration of tbe jury when it gave tbe instruction that “If be sat near tbe track in a dangerous position — if you find tbat be thought tbat be was far enough away, ... it would be your duty to answer tbe second issue ‘Yes.’ ” The alternative proposition, that “if be put himself in a perilous position on tbe railroad track” it would be contributory negligence, if it was correct, did not cure tbe error, as we cannot tell by which branch of the instruction the jury were guided to their verdict. Tillett v. R. R., 115 N. C., 662; Williams v. Haid, 118 N. C., 481; Edwards v. R. R., 129 N. C., 78. *193An error in tbe charge must be eliminated by a retraction of it, or a proper explanation, which will remove the wrong impression made by it, and the giving of another correct but conflicting instruction does not answer the purpose, as it does not produce the desired result. If the deceased had fallen asleep on the track, his negligence in doing so would not be contributory, in a legal sense, unless it was the proximate cause of the injury to him; and yet the court charged the jury, in effect, that it would be. If, notwithstanding his negligence in sleeping on the track, the defendant’s engineer, after he saw him lying there and became aware of his perilous situation, could, by exercising the proper care, have stopped the train in time to avoid the injury, and failed to do so, his negligence in not doing so would be considered as the proximate cause of intestate’s death. The Federal Employers’ Liability Act does not, as we understand it, change the rule of law as to what is contributory negligence, except as to its legal effect upon the issue as to damages, an affirmative finding in respect of such negligence reducing the amount of damages as indicated in the act.

¥e are also of the opinion that there was error in the instruction of the court in regard to the measure of damages, and as the question may be again raised, we will now decide it. The intestate, at the time of his death, was employed in interstate commerce, and the case was, therefore, properly tried under the Federal Employers’ Liability Act. "With respect to damages, the court instructed the jury that the burden was on the plaintiff to satisfy the jury that the intestate would have continued to contribute to the support of his father after he arrived at the age of 21 years, and further, that he must satisfy them as to the amount of such contribution as he would have made after his maturity. This could hardly be the rule intended by Congress, as such facts would be incapable of anything like accurate or even approximate proof. They depend so much upon contingencies as to be beyond the human ken. We cannot foretell what a man will do with his estate in the future, and therefore Congress, aware of this difficulty in making proof, required that the, amount of recovery should be measured by the reasonable expectation of benefit which would accrue to the parent, or a dependent, by the continuance of the life in question. We think this part of the charge, in its general scope and tendency, was not in accordance with the correct principle to be gathered from the evident meaning and purpose of the act, and we have already so decided. Here the intestate was under no obligation to support and maintain his father. 29 Cyc., 1619. What he might do for him, in that way, would be voluntary on his part — a mere gift or gratuity, prompted, it is true, by filial devotion or duty, but nevertheless a moral and not a legal obligation. Dooley v. R. R., 163 N. C., 454. We said in that ease, quoting from and approving the language of Jus *194 tice Pollock in Franklin v. R. R., 4 Hurl, and Norman, 511: “If, tben, the damages are not to be calculated on either of these principles, nothing remains except that they should be so calculated in reference to a reasonable expectation of pecuniary benefits, as of right or otherwise, from the continuance of the life. "Whether the plaintiff had any such reasonable expectation of benefit from the continuance of his son’s life, and if so, to what extent, were the questions left in this case to the jury. The proper question then was left, if there was any evidence in support of the affirmative of them. We think there was. The plaintiff was old and getting infirm; the son was young, earning good wages, and apparently well disposed to assist his father, and in fact he had so assisted him to the value of 3s. 6d. a week. We do not say that it was necessary that the actual benefit should have been derived; a reasonable expectation is enough, and such reasonable expectation might well exist, though, from the father not being in need, the son had never done anything for him.” Again, this Court says in the Dooley case: “A person entitled to the benefit of the action may recover damages for the loss of a pecuniary benefit to which he was not legally entitled, but which it is reasonably probable he would have received except for the death,” citing Tiffany on Death by Wrongful Act (2 Ed.), sec. 159. Mr. Tiffany has classified the losses which may be considered in assessing the damages, and the persons entitled to be compensated therefor. The first description of loss is principally confined to a husband’s loss of his wife’s services, a wife’s loss of her husband’s support and services, a parent’s loss of the services of a minor child, and a minor child’s loss of the support of a parent. But the statutes do not confine the benefit of the action to husbands, wives, minor children, and parents of minor children. The second description of loss includes the loss by-the beneficiary of any pecuniary benefit which he might reasonably have expected to receive during the lifetime of the deceased by gift, and also the loss of any accumulations which it is probable that the deceased would have added to his estate had he lived out his natural life, and which the beneficiary would probably have received by inheritance. He then proceeds to say: “Thus the second description of loss may be divided into (1) losses of prospective gifts, and (2) losses of prospective inheritance. The loss sustained by a husband, wife, minor child and a parent of a minor child may be of both descriptions. The loss sustained by an adult child, parent of an adult child, or collateral relative, can only be of the latter description.” We approved this elucidation of the act in Dooley’s case, in which Justice Allen so fully and clearly explains this new law, and cited in support of Mr. Tiffany’s statement the following cases: Greenwood v. King, 82 Neb., 22; Hillebrand v. Stans. Bisc. Co., 139 Cal., 236; Duckman v. R. R., 237 Ill., 108; R. R. v. Kindood, 57 Texas, 498; Hopper v. R. R., *195 155 Fed. Rep., 277. The ease last cited was mueb like tbis one. Tbe action was there brought by a father for loss by the death of his daughter, who was killed by the negligence of the defendant in that case. She had not contributed anything to her father’s support, nor had she rendered any appreciable service to him. He had, on the contrary, been at considerable expense in supporting, maintaining, and educating her. Judge Van Devanter, then circuit judge, now a justice of the Supreme Court of the United States, said in regard to the father’s right to damages: “Considering this evidence, in the light of the natural influence or promptings of filial ties, we think it would have sustained a finding that there was a reasonable expectation of substantial, though not large, pecuniary benefit to the father from a continuance of the life of the daughter,” citing several cases to sustain his view. It may here be remarked that the Dooley case presents facts in almost exact analogy to those we are now considering, as it was an action by the father for loss sustained by the death of his son. In this case it appears that the intestate was a boy in good health, earning $1.10 per day, and was contributing regularly to the support of his father. He was sober, industrious, and of average intelligence for his age. His conduct towards his parent tended to show that he was, in mind and disposition, imbued with a proper conception of his filial duty and entertained the proper affection for his father. The evidence in this case of a reasonable expectation by the father of benefit or pecuniary aid or other advantage of gift or inheritance, if the life of his son had been spared to him, was sufficient for submission to the jury.

Before closing this opinion, we must advert to the recent ease of Irwin v. R. R., 164 N. C., 5, where it is said: “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.” That case sustains our conclusion, that the instruction as to damages was erroneous and was in harmony with what is thus said in Am. R. R. Co. v. Didricksen, 227 U. S., 145: “The cause of action which was created in behalf of the injured employee did not survive his death, nor pass to his representatives. But the act, in case of the death of such an employee from his injury, creates a new and distinct right of action for the benefit of the dependent relatives named in the statute. The damages *196recoverable are limited to sucb loss as results to them because they have been, deprived of a reasonable expectation of pecuniary benefits by the wrongful death of the injured employee. The damage is limited strictly to the financial loss thus sustained.” And the case of R. R. v. McGinnis, 228 U. S., 175, is to the same effect. "We think that the law is unquestionably settled by those decisions, as to the measure of damages under the Federal act.

New trial.