LANDRY, Judge ad hoc.
On August 15, 1958, at approximately 10:30 A. M., Paul E. McFarland, Sr., received fatal injuries (from which death resulted approximately one hour thereafter) when a milk truck he was driving in the course of his employment by Louisiana Creamery, Inc., collided with a freight train operated by employees of defendant Illinois Central Railroad Company at the Centerville Street grade crossing of said defendant's railway in the Town of Denham Springs, Louisiana.
National Surety Corporation (in the capacity as compensation insurer of decedent's employer Louisiana Creamery, Inc.) intervened in the proceedings below averring it had paid plaintiff Patsy Lee Kelly McFarland workmen's compensation benefits at the rate of $35 per week for a period of 35 weeks through April 16, 1959, or the sum of $1,225, plus funeral and medical expense in the sum of $676.50 which aggregate amount it is entitled to recover from defendant railway company in the event of plaintiffs' recovery herein. Said intervenor further set forth that under the workmen's compensation laws of this state it is liable to plaintiffs for compensation at the rate of $35 per week for an additional period of 365 weeks, or the further sum of $12,775 and is entitled to subrogation against defendant railway company in the total sum of $14,676.50, said amount being the total extent of intervenor's liability to plaintiffs under the compensation laws of our state.
Trial of this cause before a jury in the court below resulted in a verdict in plaintiff's favor pursuant to which judgment was rendered in favor of petitioner Mrs. Patsy Lee Kelly McFarland in the sum of $15,000, individually, and in her favor for the use and benefit of her two aforesaid minor children in the sum of $20,000.00 each. Judgment was also rendered in favor of Intervenor, National Surety Corporation in the sum of $2,881.50 (apparently compensation accrued to date of judgment) and for future compensation payments made by said intervenor, said payments to be made in the proportion of ½ by plaintiff Patsy Lee Kelly McFarland and ¼ each by the minors Paul E. McFarland, Jr., and Terry Lee McFarland. From this judgment defendant has taken this appeal. Plaintiffs have answered the appeal suggesting the quantum allotted is inadequate and should be increased.
In order that the contentions of the adverse parties may be more readily comprehended, we deem it advisable to set forth, at this point, certain admitted facts and circumstances attending the crossing at which the accident in question occurred.
Centerville Street in Denham Springs is a black topped two lane thoroughfare running in a northwesterly-southeasterly direction. For all practical purposes it may be said defendant's railroad runs from east to west. The angle at which the street intersects the railroad right of way is very sharp. The tracks are somewhat higher than the general elevation of the street which is, therefore, inclined on each side of the tracks so that vehicular travel is afforded a smooth ascent to track level and an even descent therefrom. The crossing is in a state of good repair quoad the surface of the roadway and tracks. On the west side of Centerville Street approximately 75 feet north of the railroad right of way is the usual "Louisiana Law Stop" sign plainly visible to motorists proceeding southerly along said street. Approximately 450 feet north of the intersection is the customary small yellow Louisiana Highway Department sign with a black "X" thereon indicating the presence of a railroad crossing ahead. The above mentioned signs were the only facilities by which motorists were made aware of the crossing. There were no audible or visible automatic cautioning devices such as flashing lights or ringing bells. Neither was there any contrivance by means of which self-operated barriers or gates would function to bar the crossing to vehicular traffic upon the approach of defendant's trains.
Plaintiffs contend the accident was caused solely by the negligence of the train crew. More specifically, plaintiffs charge defendant's employees were negligent in failing to construct the crossing in a safe manner, failing to provide special warning signals, failing to blow the whistle and sound the bell on the train when the train reached a point 300 yards from the crossing until the crossing was passed as required by law, failing to give proper signal or warning where the approach of the train could not be heard because of noise emanating from a nearby industrial installation of which defendant's employees were or should have been aware, operating the train at excessive speed within an incorporated municipality, failing to maintain a proper lookout, failure to keep the train under proper control, placing a box car on a siding to the east of the intersection (the direction from which the train was approaching) in such manner as to obstruct and impede a southbound motorist's view of a westbound train and permitting weeds, trees, grass and brush to grow upon defendant's right of way near the crossing to such height as to completely obstruct the tracks and approaching train from the view of a southbound motorist until such motorist reached a point between the rails of defendant's tracks. The petition further recites that, to the knowledge of defendant's employees, Centerville Street had been a heavily traveled thoroughfare for some time preceding the accident because of the closure of other streets due to repair and reconstruction projects then under way in Denham Springs. Plaintiffs further allege that despite Centerville Street having become a heavily traveled street for the reasons stated, defendant, nevertheless, permitted the aforesaid dangerous condition to persist thereby creating a dangerous trap for unwary motorists using same. In the alternative, plaintiffs plead last clear chance.
Defendant's answer admits the occurrence of the accident but denies its cause may be attributed to any act of negligence on the part of its employees. In its answer defendant alleges its train approached the crossing with the whistle blowing and the bell sounding as required by law and when the engine reached a point approximately 75 feet east of the crossing the engineer first noted the approach of decedent's truck from the north. Defendant next asserts that when the train was approximately 50 feet from the crossing the engineer realized
Needless to say there is considerable variance between the testimony adduced by the contesting parties with respect to the events immediately preceding the collision.
Joe Elzey Minton, (newspaperman) called on behalf of plaintiffs, testified that on the day of the accident he took numerous pictures of the scene of the tragedy. He was questioned with particular reference to a photograph introduced in evidence and marked P-1 for identification, which picture was taken from the west side of Centerville Street approximately 40 feet north of the tracks (said point being between the "Louisiana Law Stop" sign and the tracks). The picture (an enlargement of a smaller photo) graphically illustrates that from that point a motorist traveling southerly could not see the approach of a westbound train because of the presence of a profuse growth of trees and bushes to his left. Plaintiff contends the picture is an accurate reproduction of the terrain as it existed on the date of the accident, whereas, defendant contends the trees and brush shown therein are not on defendant's right of way but upon adjacent privately owned property over which defendant has no control. Minton freely admitted taking numerous pictures but denied the implication of defendant's counsel that he had taken but had failed to produce other photographs which would have shown the crossing in a light more favorable to defendant.
Ivy McDonald, an employee of the veneer mill, who testified as plaintiff's witness, stated he was standing outside the plant some 400 or 500 feet from the crossing talking to some employees after finishing scaling a load of logs on a truck. As the truck drove away, despite the noise of the mill, he heard the train whistle and knowing that the truck which had just departed was traveling toward the Centerville Street crossing, he climbed upon a stack of lumber to see if the truck was in any danger. When he looked he did not see the log truck but did observe decedent's southbound milk truck drive to within a short distance of the track and stop. He stated that after stopping, the truck started forward and was struck by the train. McDonald estimated the speed of the train at 35 to 40 miles per hour. His testimony clearly indicated he considered the crossing dangerous and was apprehensive every time he had to negotiate the intersection which he was required to do several times each day. According to McDonald about two or three weeks preceding the accident, a railroad crew had cut the weeds on the right of way commencing at the crossing and extending 25 or 30 feet back therefrom in each direction. His testimony further shows he heard the train whistle when the train was in the vicinity of the Hatchell Street crossing and that the whistle sounded continuously.
Plaintiff's next witness, Earl Myers, stated he was driving southerly along Centerville Street behind decedent McFarland and although he did not see the impact he came upon the scene while the truck was still "rocking" and its wheels yet spinning. According to Myers, the train had not yet come to a stop and was still moving along "pretty good" although its
Dr. James Pearce, Veterinarian, plaintiff's witness, stated he was outside his office situated at 971 Centerville Street (on the east side of the street south of the crossing) and first observed the train when it was west of Hatchell Street. He estimated the speed of the train at 50 miles per hour and did not hear its whistle blowing. His attention was attracted to the train because it was an unusual time for a train to be passing. He was not aware of the accident until after its occurrence but upon entering his office remarked to his secretary, Mrs. Gertrude Mitchell, that the train was traveling too fast. Upon hearing of the accident, he went to the scene and attempted to render first aid to decedent who was obviously seriously hurt and in great pain. He further stated that on the way to the hospital it was necessary to forcibly hold decedent in order to administer oxygen to him. Dr. Pearce did not pay any attention to the condition of the crossing with respect to the presence of weeds or brush which might obstruct view.
Mrs. Gertrude Mitchell, who testified on behalf of plaintiffs, stated she was looking out of the window of Dr. Pearce's office and was attracted to the train because it was passing at an unexpected time. She first saw the train when it was approximately halfway between Hatchell Street and the Centerville Street crossing at which time she observed that a man in the cab was pulling on the whistle cord. She did not see the impact but testified that in her opinion, the train was "flying".
Plaintiff's next witness, John Gilbert Ballard, testified decedent McFarland was his immediate superior. On the day of the accident, decedent was substituting for the witness who had the day off. About noon of the day of the accident, Ballard visited the scene of the mishap and observed the weeds were badly trampled but saw no evidence of recent cutting. He closely examined the crossing and found that in order to see down the right of way, a motorist was required to get almost upon the tracks. He particularly noted the presence of the box car on the veneer mill spur. His examination also disclosed that the position of the box car was such as to obscure all vision of the track to the east thereof and to see beyond the position of the box car a motorist would have to be on the track at the crossing. He also testified decedent substituted for him one day in alternate weeks.
Cecil O. Burlingame, called on behalf of plaintiffs, testified he operated a grocery store situated approximately 125 feet south of the crossing and to the west of Centerville Street. He was thoroughly familiar with the crossing, traversing same as frequently as two or three times daily. He was standing behind his establishment and heard the impact of the crash. He looked up and saw the truck going over the top of
Plaintiffs' witness, Tynes D. Fletcher, an acquaintance of decedent, testified that the day following the accident, while taking his dog to Dr. Pearce's office for treatment, he visited the scene of the accident and noted the presence of weeds, willows and briers within the right of way adjacent to the tracks. Upon examination of the crossing, he found that because of the growth mentioned he had to get within five or six feet of the tracks in order to get a good view down the right of way. Several days following his visit to the crossing he noticed that the weeds and briers had been cut.
Harvey Childers, testifying on behalf of plaintiffs, stated that he was proceeding southerly along Centerville Street approximately 60 to 75 feet ahead of McFarland's truck. After stopping close to the track he crossed immediately in front of the train without having either seen or heard it. Upon crossing the track he heard the train blow and, looking back, for the first time saw the train just as it struck the truck. He considered the crossing dangerous because of the underbrush and weeds present.
Walter Backes, testifying on behalf of defendant stated he is a railroad engineer but at the time of the accident was acting as fireman on the train in question because there were then no openings for engineers with his seniority. He was seated in the fireman's position on the left (south) side of the westbound engine. The engineer began blowing for the Hatchell Street crossing and blew continuously until the moment of impact. He stated the train was proceeding at a speed of 30 miles per hour during the entire run which was the limit set by company rules. He was positive the train did not reduce its speed on entering the municipality but that it continued at its normal speed of thirty miles per hour. He did not see the truck and when the engineer placed the train in emergency he was then unaware of the reason therefor. He considered that the engineer made a good stop under the circumstances.
Weldon H. Yates, brakeman, on the train, stated he was seated on the left side of the engine in a seat behind that occupied by the fireman Backes. The engineer commenced blowing the whistle and sounding the bell before reaching Hatchell Street. He estimated the speed of the train at about 25 miles per hour. Like Backes, he did not see the truck and did not know the reason for the emergency stop until after the accident.
Defendant's next witness, Floyd Hess, a brakeman serving as flagman at the time of the collision, stated he was stationed in the middle of the engine on an improvised seat. Because of his location he could not see the truck. He estimated the speed of the train at 30 miles per hour and stated the whistle was blowing and the bell ringing at the moment of impact.
James C. Burk, conductor on the train testified the train left Baton Rouge, Louisiana, at approximately 11:40 P. M. the previous night to proceed to Hammond and other points. During the outgoing run, the box car near the Centerville Street crossing had been spotted by his crew as a service
Philip Ellsworth, testifying on behalf of defendant, stated he was standing up on the bed of a truck which had just come from the veneer mill. The truck was parked approximately 500 feet from the crossing and he and a co-employee were in the act of loading wood thereon. From the aforementioned position he saw the train at or near the Hatchell Street crossing at which time the truck was approximately 300 feet from the track. He stated that decedent did not stop but continued on and ran into the train. The testimony of Ellsworth was corroborated somewhat by that of Ernest Erp Boby who testified he was standing on the ground assisting Ellsworth load the truck on which the latter was standing. He heard the train blowing before the accident and although he did not see the accident, he recalled hearing Ellsworth state he, Ellsworth, believed the train would strike the truck.
Luther Edwards, engineer, testified the train had been proceeding at a speed of 30 miles per hour on the entire trip and that he did not reduce speed upon entering Denham Springs. However, because he was scheduled to stop in Denham Springs on the return trip, he intended to commence reducing his speed after passing the Centerville Street crossing. He was positive of his speed because he was constantly consulting the speedometer situated on the instrument panel directly within his view. Before reaching the Hatchell Street crossing he commenced blowing the whistle and sounding the bell and continued to give both means of warning as he approached Centerville Street. Upon reaching a point about 75 feet from the Centerville Street crossing, he first observed the approach of decedent's truck. He could not see the truck prior to this time because of the angle of the street and the presence of growing brush and trees. It is only fair to state, however, he contended the obstructions mentioned were not within defendant's right of way but on private property adjacent thereto. When his engine reached a point approximately 50 to 60 feet from the crossing, he realized the approaching truck would not stop and immediately placed the train in an emergency stop but it was then too late to avoid the collision. According to his testimony (as well as that of other witnesses for defendant) the train traveled 18 car lengths after application of the brakes, an average car length being 39 feet.
James A. Fowlkes, section foreman for defendant railway company, testified he lived in Denham Springs. On the Wednesday preceding the accident, utilizing a section crew of four laborers, he had cut the right of way in question from the center line of the tracks extending outward a distance of fifty feet on each side thereof. He stated that the willows and brush referred to by plaintiffs' witnesses are not situated on defendant's right of way. At the time of cutting prior to the accident he cleared the right of way a distance of only 100 feet back from Centerville Street in accordance with orders previously received. After the accident he cleared the entire right of way between Hatchell Street and Centerville Street which method of cutting was different from that theretofore employed.
Robert I. Forte, Electrical Engineer and consultant employed by defendant, after being furnished information regarding the composition and weight of the train in question stated that a train thus assembled traveling at 30 miles per hour should be able
Despite all the averments of negligence contained in plaintiffs' petition, it is, nevertheless, accurate to state plaintiffs' principal reliance is upon the allegation of excessive speed and the contention the crossing constituted a dangerous trap to motorists because of defendant's failure to cut the weeds, trees and brush within its right of way thereby rendering it impossible for a southbound motorist to detect the approach of a westbound train until the motorist was in a position of danger upon the tracks. In this connection, plaintiffs argue that decedent's failure to stop, look and listen as required by law (if such failure be established in the record) was immaterial under the facts and circumstances shown herein. On this issue, plaintiffs further maintain that had decedent stopped such conduct would have been a useless gesture because, assuming he stopped at any point north of the crossing, he could not have observed the approach of defendant's train because of the obstruction of his view resulting from the growth of weeds, trees and shrubs shown to have existed at the time. On the other hand, defendant argues the record shows decedent did not stop in obedience to state statute, that his view was not obstructed or impeded as contended by plaintiffs, that the train was giving all audible signals required by law, that the evidence shows its right of way was free of obstruction and that if such obstruction did exist it was upon adjacent privately owned premises over which defendant had no control and no right, duty or obligation with respect to maintenance thereof.
In support of defendant's contention learned counsel for defendant has cited numerous authorities relied upon as establishing freedom from fault on the part of defendant's employees under the circumstances shown herein. Additionally, esteemed counsel has cited innumerable decisions in which recovery of an individual has been barred because of contributory negligence resulting from failure to stop, look and listen prior to negotiating a railroad crossing. We have read many of the cited cases and have no quarrel with the results reached in view of the circumstances in each individual case. It is fundamental that the question of negligence of a particular defendant (as well as contributory negligence of a given plaintiff) is purely a question of fact to be determined in the light of the circumstances of each individual case.
The "dangerous trap doctrine" principally relied upon by plaintiffs herein is clearly set forth in American Jurisprudence Volume 44, Verbo Railroads § 507, page 747, as follows:
On the issue of the burden of care imposed upon railroads because of the presence of obstructions upon the railroad right of way, the following appearing in 74 C.J.S. Railroads § 722, pp. 1331-1332 is deemed particularly appropriate:
Counsel for plaintiff's contends the death trap principle or theory has been recognized and applied by the courts of this state on previous occasions.
In Downing v. Morgan's L. & T. Railway & S. S. Company, 104 La. 508, 29 So. 207, 212, which involved an accident wherein a decedent was killed by a backing train in the Town of Berwick at a crossing rendered unusually dangerous by certain conditions shown, it was stated:
Lampkin v. McCormick, 105 La. 418, 29 So. 952, 954, involved a factual situation wherein an individual meeting a train in the City of Shreveport was killed by another train backing from the opposite direction. In reversing a jury verdict in favor of defendant and awarding recovery to plaintiff, the court stated as follows:
We find that the pronouncements in the foregoing cases were reaffirmed in Ortolano v. Morgan's L. & T. R. & S. S. Co., 109 La. 902, 33 So. 914, 917, in which the court, in awarding damages for the death of a 5 year old child, stated the duty of a railway company, with respect to obstructions of view at or near crossings, to be as follows:
Parents of boys 6 and 10 years of age, respectively, were granted recovery for the death of their children killed by a train while traversing a railroad crossing in a wagon being driven by their grandfather in the Town of Minden. The crossing in question was obscured by the presence of freight cars parked in proximity thereto so as to impede the vision of a person crossing the tracks. In finding the defendant liable, the court in Cherry et ux. v. Louisiana & A. R. Co., 121 La. 471, 46 So. 596, 598, stated as follows:
The rule thus evolved with respect to the degree of extra care required by temporary obstructions such as parked box cars, growing brush and similar non-permanent impediments has likewise been extended and applied to permanent obstructions such as a depot building. See Holstead v. Vicksburg S. & P. Ry. Co., 154 La. 1097, 98 So. 679, 680. On the question of contributory negligence, the court in the Holstead case, supra, used the following language in holding that a motorist was not contributorily negligent in entering upon a side track where a depot was situated in such manner as to completely obstruct the view:
A more recent case dealing with the general subject matter is that of Bergeron v. Greyhound Corporation, La.App., 100 So.2d 923, 926, involving a crossing accident in which defendant bus company was sought to be held liable on the theory the parking of one of its disabled busses in such position as to obscure the view of a motorist crossing a railroad track was the proximate cause of an accident resulting in damage to plaintiff's truck which was struck by a train while negotiating the crossing. In reversing the judgment of the trial court dismissing plaintiff's demand on defendant's exception of no cause of action we stated therein:
Stevens v. Illinois Central R. R. Co., 6 La.App. 165, is confidently relied upon by defendant as controlling the issue presently before this court. The facts in the cited case were quite different from those in the case at bar. By implication the court recognized the "dangerous trap doctrine" but found as a fact that the circumstances complained of did not constitute a trap and rejected plaintiff's demand upon the ground the driver of the automobile involved in the accident was solely responsible for plaintiff's injuries.
After careful consideration of the evidence of record we conclude the crossing in question was dangerous and constituted a "trap" by virtue of the incline of the street, the sharp angle at which the street
In contending the testimony of plaintiff's witnesses with respect to the condition of the right of way is refuted rather than corroborated by the record, counsel for defendant relies principally upon the testimony of the section foreman James Fowlkes who testified he cut the right of way two days preceding the accident. In this regard defendant's learned counsel also contends certain photographs of the crossing introduced by plaintiffs do not show the true conditions existing on the date of the accident. The aforesaid charge is addressed particularly to that certain photograph taken by Joe Ellzey Minton and marked P-1 for identification. The disputed photograph was taken by Minton on the day of the accident. It was taken from the west side of Centerville Street at a distance of 40 feet north of the tracks, said distance being measured from the spot where Minton stood along the western edge of the street in a southeasterly direction to the railroad track. The photograph was taken from the aforesaid spot with the camera facing southeasterly along Centerville Street. It shows the top of the parked box car appearing above the foliage blocking a motorist's view to the east. The picture graphically illustrates that a motorist stopped 40 feet north of the track (if he did in fact so stop) could not possibly see beyond the box car on the siding and would have a quite limited and restricted view (if any view at all) of a train between the box car and the crossing. On this point, counsel for defendant argues strenuously that the growth shown on the picture in question is not within defendant's right of way but upon adjacent privately owned lands. It is conceded by Minton that the picture in question is an enlargement of a smaller original snapshot but he steadfastly maintained it correctly represented the view of a motorist from the spot where the picture was taken.
The testimony of Fowlkes to the effect that two days prior to the accident he supervised the cutting of the right of way extending 50 feet on either side of the center line of the tracks does not appear to be confirmed by certain photographic evidence in the record. Notably, a photograph marked P-3 for identification, taken August 19, 1958 (four days following the accident), which is a view looking northwesterly across the intersection of Centerville Street from a point on the railroad right of way 70 feet east of the street, shows the presence of weeds and grass growing up to and between the track rails. If the weeds had been cut one week previous thereto as contended by Fowlkes, it is most unlikely they could have attained the height shown therein in such a short span of time. We note also with considerable interest, the further testimony of Fowlkes that he cut the weeds for a distance of only 100 feet each way along the right of way prior to
We are also considerably impressed with the testimony of the engineer Edwards who stated that because of the conditions existing at the crossing he could not and did not see the approaching truck until the vehicle was only about 75 feet from the crossing. If he could not see the truck from his position of added height in the cab of the engine by the same token decedent could not have been expected to see the train.
Special note is also made of the testimony of various members of the train crew who readily admitted familiarity with the crossing in question and who likewise conceded the speed of the train was not reduced upon entering the city limits. Assuming the speed of the train to be 30 miles per hour as contended by the crew thereof, we find such speed excessive under the facts and circumstances shown herein.
Pursuant to instructions received from the trial judge, the jury concluded the negligence of defendant's employees was the proximate cause of the accident and that defendant failed to carry the burden of proving contributory negligence on the part of decedent McFarland, both of which determinations are findings of fact.
It is the well settled jurisprudence of this state that the conclusions of the trial court on questions of fact are entitled to great weight and will not be disturbed unless manifestly erroneous. This well established principle has, on numerous occasions been applied to determinations of a jury as well as those of trial judges. Veal v. Audubon Insurance Company, La. App., 144 So.2d 648; Alford v. Lyons, 11 La.App. 670; Rachal v. Texas & Pacific Ry. Co., La.App., 61 So.2d 525; Cush v. Griffith, La.App., 95 So.2d 860; Whitner v. Scott, La.App., 116 So.2d 180.
Finding no manifest error in the verdict of the jury imposing liability upon defendant Illinois Central Railroad Company, said verdict is entitled to affirmance by this court. There remains, however, the question of quantum to be decided.
As previously stated, plaintiffs answered the appeal requesting an increase in the allotments made below whereas defendant's appeal alternatively prays for a reduction in the awards granted.
The evidence shows decedent McFarland was 25 years old on the date of his death. According to the testimony of Forest G. Ray, actuary produced by plaintiffs, said decedent had a full life expectancy of 49.41 years and a working life expectancy of 36 years. According to American Experience Mortality Tables appearing in LSA-R.S. Title 47, Section 2405, said decedent had a life expectancy of 38.81 years. At the time of his death said decedent's income was approximately $400 per month or $4,800 per year.
Learned counsel for plaintiff contends that in determining the award to plaintiff Patsy Lee Kelly McFarland for loss of support we should indulge in a slight modification of the formula employed in Duree v. State La.App., 96 So.2d 854, Stephens v. Natchitoches Parish School Board, 238 La. 388, 110 So.2d 156, and Day v. National U. S. Radiator Corporation, La.App., 117 So.2d 104, pursuant to which an award of $83,500 would be made to said plaintiff herein. Esteemed counsel suggests that using decedent's take home pay of approximately $362.22 per month and multiplying same by his full life expectancy of 49.41 years (as testified to by the actuary Ray) and discounting the sum thus obtained at 2½, the future earnings of decedent would be established at $167,000 of which amount the surviving widow would be entitled to one-half or $83,500.
Notwithstanding the ingenious attempt of counsel to persuade our deviation from the formula which has been consistently followed in the cases mentioned, we deem it advisable to adhere to the aforesaid formula which calls for a 5% discount factor in computing the present value of a widow's share of her deceased husband's prospective earnings.
The American Experience Mortality Table appearing in our LSA-R.S. 47:2405 (showing full life expectancy only) was compiled some time ago and does not take into consideration recent increase in the average life span resulting from present day scientific and medical discoveries and developments. We are confident (as indicated by the testimony of the actuary Ray who testified in the present case) a revision of the aforementioned mortality table predicated upon current data would reveal a substantial increase in the life expectancies therein shown. Said table, however, does not purport to set forth "working life expectancy".
It is common knowledge, however, that under our present day economy only a few individuals continue to remain gainfully employed throughout their full life expectancy. The social security program inaugurated by our Federal Government, as supplemented by pension and retirement funds and provisions which have come to form an integral part of every employee's total compensation, now assures that virtually every employed citizen may reasonably anticipate retirement while yet possessing several years life expectancy.
In the case before us the testimony of the actuary Ray, shows decedent possessed a "working life expectancy" of 36 years which figure, for the reasons hereinabove set forth, will be used in determining decedent's gross prospective income. Decedent McFarland is shown to have had a "take home pay" of $362.22 per month which we shall also employ herein (considering it reflects his income after deduction of estimated income taxes and considering further the amount to be received by plaintiff widow will be tax free).
Utilizing the figure of $362.22 per month we find decedent had an annual income of $4,346.64 which, projected over a period of 36 years results in a gross prospective income of $146,479.04, of which amount plaintiff widow would be entitled to one-half or $73,239.52. Employing the annual figure of $2,173.32 (one-half decedent's annual "take home pay" of $4,346.64) and using 16.54685171 as the present value of one taken at a discount of 5% for 36 years (See Mathematics of Finance, Second Edition, Thomas Marshall Simpson, Ph. D., Table 6 page 96 of the Appendix of Tables), the value of the widow's claim for loss of support is determined to be $35,961.60. Under such circumstances we fix the award to plaintiff Patsy Lee Kelly McFarland for loss of support in the sum of $35,000.
The next element of damages which must be determined on behalf of the surviving widow is the loss of the love, companionship and affection of decedent. In this connection the testimony of plaintiff is unrefuted to the effect decedent was a devoted husband and father who loved, and, in return, was loved by his wife and children. We believe that all attending circumstances considered, an award to plaintiff
As prayed for in their petition, plaintiffs are entitled to recovery for the pain and suffering endured by decedent in the interval between his injury and death. The evidence shows decedent lived approximately one hour following the accident. There is some evidence to show he suffered intensely at the scene of the accident and on the way to the hospital. There is no evidence of record to indicate the length of time he remained conscious or showing in any detail the medication or treatment prescribed. In view of the limited evidence of record we are disposed to allow an award of $4,500 for decedent's pain and suffering, said amount to be divided equally among the three plaintiffs herein. On this basis plaintiff Patsy Lee Kelly McFarland is entitled to 1/3 thereof or the sum of $1,500.
The evidence discloses that plaintiff widow remarried December 18, 1959. Her marriage, however, can have no effect upon her right of recovery herein and is not to be considered in mitigation or reduction of the damages otherwise due. Stephens v. Natchitoches Parish School Board, 238 La. 388, 110 So.2d 156, Hightower v. Dr. Pepper Bottling Company of Shreveport, La.App., 117 So.2d 642.
In addition to the foregoing awards, plaintiff Patsy Lee Kelly McFarland is entitled to judgment in the sum of $2,422.70, said amount being the aggregate of medical and funeral expense incurred in the treatment of decedent's injuries and his burial following his death.
In determining the award for loss of support to be made to the minors Paul E. McFarland, Jr., and Terry Lee McFarland, we are presently disposed to modify the formula employed in Day v. National U. S. Radiator Corporation, supra, wherein we predicated such loss upon the present Federal Income Tax deduction of $600 per child per year. Upon further reflection we perceive no valid reason why the amount thus determined to be due a child for loss of support should not, as in the case of a widow, also be discounted. In each instance the amount received is immediately forthcoming.
With the foregoing in mind we find that the minor Paul E. McFarland, Jr. was two years old at the time of his father's death and was, therefore, entitled to support for 19 years at $600 per year or gross prospective support of $11,400. Using the annual figure of $600 and 12.08532086 as the present value of one to be taken at a discount of 5% for 19 years (see Mathematics of Finance, supra), the value of said minor's claim for loss of support would be $7,251.19. Under such circumstances we will award said minor Paul E. McFarland, Jr., the sum of $7,200 for loss of support. Terry Lee McFarland was one year old on the date of decedent's demise and was consequently entitled to support for 20 years at $600 per year or total prospective support in the sum of $12,000. Employing the annual figure of $600 and 12.4622-1034 as the present value of one to be taken at a discount of 5% for 20 years (see Mathematics of Finance, supra) the value of said minor's claim for loss of support would be determined to be $7,477.32, in view of which said minor Terry Lee McFarland will be granted the sum of $7,400 for loss of support.
With respect to the age of decedent and the ages of the minors seeking recovery for loss of love, affection and companionship of a deceased father, the case at bar is somewhat similar to that of Day v. National U. S. Radiator Corporation, supra, wherein we awarded each minor the sum of $6,000 for this particular element of damages. We feel a similar award in the present case will do substantial justice between the parties presently before the court.
In addition to the foregoing, each minor is entitled to the sum of $1,500 representing the pro rata share of each in the sum of
The awards herein made are recapitulated as follows:
(1) To Plaintiff Patsy Lee Kelly McFarland, individually: a. Loss of support $35,000.00 b. Loss of society 7,500.00 c. Claim of decedent for pain and suffering 1,500.00 d. Medical and funeral expense 2,422.70 __________ Total $46,422.70 (2) To plaintiff for the use and benefit of the Minor Paul E. McFarland, Jr. a. Loss of support $7,200.00 b. Loss of society 6,000.00 c. Claim of decedent for pain and suffering 1,500.00 ___________ Total $14,700.00 (3) To plaintiff for the use and benefit of the Minor Terry Lee McFarland a. Loss of support $7,400.00 b. Loss of society 6,000.00 c. Claim of decedent for pain and suffering 1,500.00 __________ Total $14,900.00
The judgment of the lower court in favor of Intervenor National Surety Corporation decreeing that said Intervenor be paid by defendant Illinois Central Railroad Company, by preference, all medical and funeral expense as well as all compensation payments paid or to be paid plaintiffs, out of the amounts awarded plaintiffs, was proper and will be affirmed.
From the foregoing it follows the judgment of the lower court must be amended by increasing the amount allotted plaintiff Patsy Lee Kelly McFarland, individually, from $15,000 to $46,422.70, decreasing the amount awarded said plaintiff for the use and benefit of the minor Paul E. McFarland, Jr., from $20,000 to $14,700, and decreasing the amount awarded said plaintiff for the use and benefit of the minor Terry Lee McFarland from $20,000 to $14,900.
The trial court fixed the fee of Forest G. Ray, Actuary, at the sum of $100 and taxed same as costs. We consider the sum allowed reasonable and affirm the judgment of the trial court in this regard.
For the reasons hereinabove assigned, it is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff Patsy Lee Kelly McFarland, and against defendant Illinois Central Railroad Company, individually, in the sum $46,422.70, together with legal interest thereon at the rate of five per cent from date of judicial demand until paid; for the use and benefit of the minor Paul E. McFarland, Jr., in the sum of $14,700, together with legal interest thereon at the rate of five per cent per annum from date of judicial demand, until paid; and for the use and benefit of the minor Terry Lee McFarland in the sum of $14,900, together with legal interest thereon from date of judicial demand until paid. All costs in the trial court and costs of this appeal to be paid by appellant Illinois Central Railroad Company.
Except as herein amended, the judgment of the trial court is affirmed.
Amended and affirmed.