[4] The measure of the damages is the loss of the probable contributions which deceased might have made toward support of respondent had he lived. This is to be measured as of the time the cause of action arose — at the time of the death due to negligence. But the difficult question is whether, in determining the probability of contributions as of that time, subsequent events which occurred up to the time of trial and which may throw light on that probability may be introduced. I think not. If the measure of damage is the loss of contributions commuted as of the time of death, we must consider the matter as if the jury had tried the case as of the time of death. The argument that any evidence of events occurring between the death and the trial which would tend to reduce the speculative element in the probability factor should be admitted is alluring *Page 320 but specious. The doer of the negligence should not benefit by another's windfall nor respond because of another's misfortunes unconnected with his negligence. While the judgment is to compensate for a loss and not to penalize for carelessness, the very principle that the defendant should not benefit because of good fortune, fortuitous so far as it is concerned, nor be mulcted because of misfortune not related to its acts, requires that as of the time of the death we measure the then commuted value of the loss of probable contributions. This rule is born of its practicality. Otherwise a widow might owe the defendant money if it caused the death of a poor and undesirable husband thus giving her the enviable opportunity of consummating marriage with a rich and more desirable spouse. And where the death resulted in payment to the plaintiff of life insurance money which she otherwise would not have obtained, could the doer of the negligence argue that the death had actually benefited her more than any living contribution which she might expect? Appellant cannot claim the result of a benefit which may have ensued from its own wrong nor can it any the more take advantage of a betterment which came about subsequent to but not consequent on the death it caused. The loss becomes fixed at the time of death, for at that time the probable contributor was removed. I therefore, concur in the conclusion that the probable value of the loss of contributions commuted as of the time of death does not permit evidence of good or bad fortune not flowing proximately from defendant's negligence to be introduced in order to throw light on the probability of contributions. The probability is as it existed at the date of death and not as it might change with subsequent events.
But I cannot concur in the conclusion that the reiteration of the ordinances and laws relating to duties of persons driving vehicles on the street was prejudicial. Those laws and ordinances touched the rights and duties of both deceased and defendant. If this "placed the emphasis upon certain propositions of law as against others entitled to *Page 321 equal weight" the propositions so emphasized were statutes specifying the rights and duties of both parties on the street. It was not a case of emphasizing the duties of the traction company and playing down the duties of the deceased or playing up his rights in relation to the defendant. If reiterated a dozen times it simply stated the statutory law governing both parties on the streets. It is not good practice to set out the claims of the parties pro haec verba as contained in their pleadings instead of condensing them in the court's own language, but to do so is not necessarily prejudicial.
Stating to the jury a claim as contained in the pleading when there was no evidence to support it is a more serious transgression, but in this case I think it could not have been prejudicial in view of the fact that the court notified the jury that the language of the pleadings was not evidence but only the claim as made by the plaintiff. Since there was no evidence to substantiate it and no instruction relating to it, we must assume that the jury did not consider it as evidence and did not take it into consideration. I think the judgment should be affirmed.
I call attention to the implication in the opinion that because Section 26, Article VIII of the Constitution requires this court to prepare a syllabus of all points adjudicated in each case which shall be concurred in by a majority of the judges, the syllabus is paramount over the language of the prevailing opinion. Where there is an ambiguity in the opinion the syllabus may be resorted to in clearing it up but where the syllabus and context are contradictory, I think we must still resort to the language of the opinion and not the syllabus as controlling. I must therefore emphatically dissent from portions of the opinion as indicated in my discussion.
McDONOUGH, J., being disqualified, did not participate herein. *Page 322