Alabama & Vicksburg Railway Co. v. Lowe , 73 Miss. 203 ( 1895 )

Woods, J.,

delivered the opinion of the court.

The first and second assignments of error are without merit.. These go to the action of the court in sustaining the appellee’s objection to evidence going to show at what age the child killed would have become a source of revenue to the father, and what would have been the expense incurred by the father in maintaining the child up to that age. It may be, under that low and sordid figment of the common law which professes to give compensation to a parent for the mere pecuniary value of the lost services of a child destroyed by the fault of another, and which regards the destruction of the life of a child as it would that of a dumb brute, that the evidence should have been admitted when offered; but the error was cured by the withdrawal of its ruling, and its subsequent permission given for the introduction of this excluded evidence. May a court not be permitted to rectify an error made in the heat of a nisi prius trial ? And may counsel refuse to accept at the hands of a trial court full reparation of an error committed, counting upon the chances of victory, by refusing to exercise a legal right once erroneously denied, but subsequently tendered him, and, failing of the victory, count on reversal for an error which he refused to.have set right? To permit such practice would be to allow any experimentation by counsel with the trial court. Here there was opportunity given for the introduction of the once rejected evidence, and the opportunity was refused by the party now complaining of the original action of the court.

The third assignment of error brings under review the court’s action in refusing a peremptory instruction for the railway company.

There was much evidence showing that the train was being run on and across frequented streets, in a densely populated part of the city, at a high rate of speed, and without due caution being used in keeping a lookout in turning a sharp curve on which the view was obstructed, and, on which account, danger was constantly to be apprehended. But the jury has found the fact of the negligence of the railway, and found it properly, in our opinion.

Was the nurse in charge of the child guilty of contributory negligence? The jury has answered this negatively, and properly, also, as we think. When the nurse started to cross the track she saw the smoke from the engine and knew that a train was approaching^ but the train was several hundred feet away, and she' had ample time in which to have prudently gone forward and to have safely crossed the track, even at the high rate of speed at which the train was being run. She failed to so cross, because, when she arrived just on the track, her course was arrested by the general alarm made that the ‘ ‘ bear was loose, ’ ’ the flight of the crowd in every direction and the outcries directed to her. Terrified, stunned, incapable of action, the unhappy old nurse stood motionless, a,nd was, herself, with the baby in her arms, only saved from death under the wheels by the prompt and heroic conduct of an obscure colored man, whose name is worthy to be embalmed with lasting honor, William Hulitt. This humble hero saved the nurse and the baby. He narrowly escaped with his life.in a second effort to save the tender little child, whose soul rose heavenward that moment. He saved two. The third he could not save. He, therefore, was in no way responsible for the harrowing death of the little innocent, and the poor nurse was not guilty of contributory negligence.

We find no error in the court’s action in giving and refusing instructions. We remark on one only. The eighth refused instruction asked by the railway company on the facts disclosed, was properly refused. While it is true, as an abstract proposition and in a general sense, that a railroad has the right to a clear track, yet this is true only when the railroad is operating its trains in conformity to law. It has the right to a clear track when acting within the limits of its legal rights, but when acting in clear violation of law, it has no such right.

Nugent da Me Willie, for the appellant,

Filed a lengthy suggestion of error, again urging the view that the appellant was relieved of liability by the contributory negligence of the nurse.

No complaint is made of the amount of the verdict, it being conceded by counsel that, if entitled to recover at all, the amount awarded is not excessive.

Affi/i'ined.

Suggestion of error overruled.