Appellee, as executrix of the will of her husband, Thomas S. Humphries, deceased, brought this action in the circuit court of Holmes county against appellant to recover damages for the death of her husband, an employee of appellant, alleged to have been caused by appellant's negligence while the deceased was performing his duties as head brakeman for appellant. Both deceased and the appellant were engaged in interstate commerce at the time; therefore the Federal Employers' Liability Act, 45 U.S.C.A., sections 51-59, applies. There was a verdict and judgment in the sum of fifty thousand dollars, from which judgment appellant appealed to this court, which affirmed the judgment as to liability and reversed and remanded the cause to be tried on the issue of damages alone. Illinois Cent. R. Co. v. Humphries, 170 Miss. 840, 841, 155 So. 421. Such trial was had, resulting in a verdict and judgment in appellee's favor in the sum of forty-two thousand five hundred dollars. From that judgment, appellant prosecutes this appeal.
The evidence on the two trials which was admitted in connection with that offered and ruled out was to a very large extent substantially the same. A rather full history of the evidence in the case will be found in the opinion of the court on the former appeal. It is deemed unnecessary, therefore, to go into such a history in this opinion.
Appellant contends that under the Federal Employers' Liability Act Humphries' railroad earnings alone are to *Page 467 be taken into consideration in fixing the damages; that earnings or income from any other business he was engaged in are not to be considered. The argument is that such earnings and income have no relation to interstate commerce, and that therefore, under the Commerce Clause of the Federal Constitution, Congress had no power to legislate with reference to the matter; that it could not go beyond the railroad earnings. We are of opinion that the contention is without merit, although the decision of the Supreme Court of the United States in the Railroad Pension case (Railroad Retirement Board et al. v. Alton Railroad Co. et al.,295 U.S. 330, 55 S.Ct. 758, 79 L.Ed. 1468) gives it some show of reason. The exact question was involved in Chesapeake Ohio Ry. Co. v. Russo, 91 Ind. App. 648, 163 N.E. 283, and decided against appellant's contention. An application for certiorari in that case was made to the Supreme Court of the United States. The application was denied. 282 U.S. 846, 51 S.Ct. 25, 75 L.Ed. 750. The petition for certiorari, however, shows on its face that no question was presented to the Supreme Court of the United States in reference to outside earnings; the petition was based on alleged error relative to an instruction on assumed risk. We think the decision of the Indiana court is sound. No other decision has been brought to our attention where the question was involved.
Under the Federal Employers' Liability Act, the assumption of risk is a complete defense in an action based thereon. Jacobs v. Southern Ry. Co., 241 U.S. 229, 36 S.Ct. 588, 60 L.Ed. 970; Chesapeake Ohio R. Co. v. De Atley, 241 U.S. 310, 36 S.Ct. 564, 60 L.Ed. 1016; Louisville N.R. Co. v. Russell, 164 Miss. 529,144 So. 478; Yazoo M.V.R. Co. v. Dees, 121 Miss. 439, 83 So. 613. Under the act contributory negligence is not a complete defense; it is only a defense to the quantum of recovery, it can be used by the defendant only in mitigation of damages. To illustrate: Where the plaintiff is guilty *Page 468 of fifty per cent of the negligence and the defendant is guilty of fifty per cent, the plaintiff is only entitled to recover one-half of his proven damages. Roberts on Federal Liabilities of Carriers (2 Ed.), section 858, and authorities cited.
On the first trial appellant's defense was assumption of risk and contributory negligence in mitigation of damages. Assumption of risk was pleaded, contributory negligence was not. Nevertheless, under Kansas City Southern Ry. Co. v. Jones,241 U.S. 181, 36 S.Ct. 513, 60 L.Ed. 943, appellant had the right and did rely on contributory negligence in mitigation of damages, although it was not pleaded. At appellant's request the court in a very awkward instruction submitted that question to the jury. On the second trial the question of liability being out of the way, the only issue was the quantum of damages. Appellant pleaded contributory negligence in mitigation of damages. The court sustained appellee's objection to certain evidence, later set out, offered by appellant to show contributory negligence; that action of the court is one of the principal grounds upon which appellant asks a reversal of the judgment.
Appellant's line of railroad from Durant to Aberdeen is known as the Aberdeen branch. The entire line is ballasted with cinders. On the 9th of November, 1931, the deceased, as head brakeman for appellant, was on a trip from Aberdeen to Durant. He was killed in the railroad yards at Ethel. He was standing on the step in the rear of the tender of the engine with his feet protruding over the edge of the step. The cinders were piled so high that his feet struck them, and he was raked off under the train and instantly kill. That was the first working trip he had made over the line between the 3d of November of that year and the day he was killed. On both issues appellant introduced evidence tending to show that the deceased knew that the railroad was ballasted from one end to the other with cinders, knew that the tracks in *Page 469 the yards at Ethel were ballasted with cinders; that the ballasting in the yards was done several months before the 3d of November, 1931; that the deceased had worked the yards at Ethel time and again prior to the 3d of November, and knew of whatever dangers there were from the cinders. Appellant's evidence also showed that at the time the deceased was raked off of the step to the tender by the cinders, instead of having hold of the handhold convenient for the purpose, he had one arm resting on it, and was waving to some friends with the other. The evidence for appellee was to the effect that the cinders causing the death were placed there between the 3d of November and the 9th of November, therefore Humphries did not know of their existence, because the trip on which he was killed was the first one he had made between those dates.
On the second trial appellant offered the same evidence with reference to when the cinders were put in the yards at Ethel. It was offered, of course, to show contributory negligence. It was ruled out, although the court did admit as pertinent to that issue Humphries' conduct at and immediately before his injury and death.
It is argued on behalf of appellee that the question of whether the dangerous cinder bed was placed there before or after the 3d of November was involved in the first trial, resulting in a judgment for appellee, and is therefore res adjudicata. In other words, on the issue of contributory negligence appellant was confined to the situation and conduct of Humphries at the time of and just before his injury and death. Putting it differently, on the first trial the question of contributory negligence was involved and settled and was out of the case on the second trial, except as stated. Why appellee does not go further and contend that what occurred with reference to his situation and conduct at the time and immediately before his injury and death was not also settled on the first trial against appellant we are unable to understand. *Page 470 If the principle contended for is sound, contributory negligence was entirely out of the case on the second trial. That it was not out of the case, but in it as fully on the second trial as on the first, is settled, so far as this court is concerned, in the case of New Orleans N.E.R. Co. v. Snelgrove, 148 Miss. 890, 115 So. 394, 395. It was held in that case that upon a reversal and remand to be tried on the question of damages alone "all issues having a bearing on that question are retried, including the negligence and contributory negligence of plaintiff and defendant, respectively." The reversal of the judgment for retrial of the question of damages alone necessarily left open to be tried anew all the elements entering into that question. A new trial on damages could mean nothing else. The fact that some of the evidence relied on by appellant in the first trial as constituting assumption of risk also tended to show contributory negligence does not bar it from use by appellant in the second trial on the latter issue. To hold otherwise would deny appellant a federal right. In Norfolk Southern R. Co. v. Ferebee,238 U.S. 269, 35 S.Ct. 781, 59 L.Ed. 1303, this question is not directly decided, and still the whole case proceeded on the idea that on the affirmance on liability, and reversal and remand for the assessment of damages alone, all the elements of damages were left as fully open as on the first trial. The opinion of the court, in effect, simply said that. If this court should hold that the first trial closed the door so far as contributory negligence is concerned, how could the contention be answered that under our practice of partial reversal appellant was denied a federal right? We see no answer.
All the judges concur that the proof of earnings is not to be confined to railroad earnings alone. Judges McGOWEN and COOK and Chief Justice SMITH concur with the writer that the testimony offered by the railroad company on the issue of contributory negligence was admissible, and that the court committed reversible error *Page 471 in excluding it. All of the judges, except the writer, concur in the opinion that the evidence of net profits mentioned in the succeeding paragraph was properly admitted as one among many other features to be placed before the jury, and all the judges except Judge ETHRIDGE are of the opinion that the cautionary instruction requested by the railroad company that profits are not to be taken as the measure of damages should have been given. The writer stands alone upon the proposition that the evidence of net profits was not admissible, and what is said from and after this paragraph is by way of dissent from the prevailing opinion on that particular proposition.
Over appellant's objection the court admitted evidence of net profits made by Humphries from his dairying and farming interests. Net earnings from invested capital and labor of others should be excluded. As stated, Humphries lost his life on the 9th of November, 1931. The evidence on this subject covered the years 1928 to 1931, inclusive; it showed, or tended to show, that Humphries had rather large farming and dairying interests, and that his average net income therefrom for those years was between five and six thousand dollars. Appellant not only objected to such evidence, but requested an instruction from the court, which was refused, in which it sought to have the court inform the jury that profits from Humphries' farming and dairying business were not the measure of damages. Appellee, the widow, during the life expectancy of her husband, and the two childen, during their minority, were entitled to recover only the pecuniary loss which they suffered on account of the death of the husband and father; and in measuring that loss his contributions in the past to their maintenance and support and his probable contributions in the future based on his earning capacity but not on net earnings of his invested capital and the labor of others are to be taken into consideration. It was competent to show the *Page 472 volume of his different business enterprises, but not the net profits; on the other hand, the railroad company would not be permitted to show that he was operating at a loss. LoSchiavo v. Northern Ohio Traction Light Co., 106 Ohio St. 61, 138 N.E. 372, 27 A.L.R. 424; Baxter v. Philadelphia R. Ry. Co.,264 Pa. 467, 107 A. 881, 9 A.L.R. 504; Wallace v. Pennsylvania R. Co.,195 Pa. 127, 45 A. 685, 52 L.R.A. 33; Lombardi v. California St. Ry. Co., 124 Cal. 311, 57 P. 66; Chicago, R.I. P.R. Co. v. Hale (C.C.A.), 186 F. 626; Pryor v. Metropolitan Street Ry. Co., 85 Mo. App. 367; Homan v. Franklin County, 90 Iowa, 185, 57 N.W. 703; Normandin v. Kansas City (Mo. App.), 206 S.W. 913; Marks v. Long Island R. Co., 14 Daly (N.Y.) 61; Louisville N. Ry. Co. v. Howard, 90 Tenn. 144, 19 S.W. 116; 8 R.C.L. 473.
Under the above authorities it was proper to show the volume of business and the part Humphries took in its management and supervision and the reasonable value of his services, but not the net profits of the business. Net profits of a business are too speculative; they are subject to too many contingencies; there are unexpected fluctuations, unlooked for competition, changes in habits and modes of living, in sources of supply, increase or decrease in demand, rising and falling markets. Any inquiry into such profits opens a wide field for speculation and fraudulent practices, they could only be arrived at by an investigation of the business with the help of an expert accountant. Such facts are peculiarly within the knowledge of the party conducting the business. For illustration: Suppose the evidence had shown that the dairying and farming businesses were losing ventures each year, and notwithstanding Humphries contributed annually a certain amount to the support of his wife and children, would they be entitled to recover nothing? What period should be taken to ascertain the net profits four years more or less before the death of the decedent? If net profits should be considered on the one side, why not *Page 473 a losing business on the other? The soundness of these principles is illustrated by the evidence in this case. On direct examination Mrs. Humphries testified that her husband's net income for the four-year period in question from his railroad salary, dairying, and farming interests was an average of five thousand six hundred sixty-five dollars and twenty-seven cents. On cross-examination her husband's income tax returns for the first three years and hers for the last year were produced, showing an average annual net income during the period of only one thousand six hundred thirty-one dollars and eighty-six cents, which she admitted was probably correct.
Appellee relies on Louisville, E. St. Louis R. Co. v. Clarke,152 U.S. 230, 14 S.Ct. 579, 38 L.Ed. 422; that decision does not sustain her contention. It holds that it was not error to allow proof of gross not net income, which with the other evidence tended to show the loss sustained by the widow and children. The other evidence concerned age, occupation, ability to labor, and the usual earnings of the deceased derived from invested capital and the labor of others.
Reversed and remanded.