J. C. Freeman was employed by the defendant, St. Louis, Iron Mountain & Southern Railway Company, as an engineer, and was killed in a wreck of his train on December 8, 1907. His widow, as administratrix of the estate, sues to recover damages for the benefit of the next of kin on account of his death. She recovered judgment for $20,000 in the circuit court of Boone County, and defendant appeals to this court.
The wreck occurred at a spur-track near the station of Myrtle, Arkansas, in Boone County, about ten o’clock at night. The train was north-bound, and was derailed. The contention on the part of the plaintiff is that there was a defect in the point of the switch rail which caused the engine to “split” the switch and leave the rails. On the other hand, it is contended in behalf of the defendant that the switch was thrown by some one for whom the company was not responsible, and that the engine turned in on the spur, and was derailed’and turned over because of a weak place in the spur track.
Negligence of the company is set forth in the complaint on account of having permitted the switch point or rail to become defective so that it allowed a space of from one-fourth to one-half of an inch between it and the main rail, and- also -to become worn or crumbled off at the point; also that the flange on one of the drive wheels of the engine had become worn ; and that, by reason of this negligence in one or both of the particulars named, the wheels of the engine mounted the switch rail or passed through the crevice between the two rails so as to cause the engine to split the switch.
. The case was submitted to the jury on these questions of alleged negligence, and the principal contention of the defendant here is that the evidence was insufficient to support the verdict. It is contended very earnestly that certain physical facts shown to be in existence were inconsistent with the plaintiff’s theory of the case, and that the verdict should he set aside on that account. After a careful consideration of the evidence, we. are of the opinion that there was sufficient evidence to warrant the finding of negligence in the particulars named.
The evidence tended to show, from the testimony of several witnesses, that for several months before the accident, and continuing down to within a few days of it, the point of the switch rail was in the condition contended for b'y plaintiff; that is to say, it was worn and crumbled off at the point, so that there was a space of from a quarter to a half-inch between it and the main rail when the switch was closed. The evidence also tended to show that the flange on one of the drive wheels of the engine was worn so that it was only about one inch in thickness. The conclusion is warranted, from the conditions which were found to exist immediately after the wreck, that the engine and train did not pass into the spur, but that it became derailed, or “split the switch,” as the witnesses term it, and was turned over. Immediately after the wreck occurred, the engine was found lying on its side between the rails of the spur track. There was evidence tending to show that the engine, after being derailed, went for some distance along the main track and then plowed its way between the two tracks, and was turned over; and remained on the spur track. These conditions showed that the switch was not open, as contended for by the defendant, and that the engine did not pass into the spur and become derailed by reason of the weak foundation of the spur track.
There are, on the othef hand, certain conditions found to exist immediately afterwards, which tended to show that it was improbable that the switch was closed at the time. But we can not say that these circumstances and conditions were conclusive of that fact. The engine was turned over, and several of the cars were wrecked; and, while all of the conditions found are not explicable on the theory of the plaintiff’s evidence that the engine and cars split the switch, we cannot say that they are so inconsistent with the plaintiff’s theory as to render the evidence insufficient to justify the finding of the jury. Upon the whole, we are convinced that the state of the evidence was such that the learned trial judge properly submitted the question of negligence to the jury for its determination.
It is contended that the court erred in allowing witnesses to testify as to the defective condition of the switch rail several months before the accident occurred. It is true that the court admitted this evidence, but it tended to establish the continuance of the defective condition down to the time of the accident. It was competent, if for no other purpose, to show that this condition had existed for a long time, in order to establish the fact that the defect was one which should have been discovered by the defendant’s agents in time to have repaired it. In Little Rock & F. S. Ry. Co. v. Eubanks, 48 Ark. 460, this court said: “ Where a defective track is alleged to be the cause of a casualty, it is often impracticable to adduce evidence of the condition of the track at the precise moment the casualty occurred, it is enough to prove such a state of facts shortly before or after as will induce a reasonable presumption that the condition is unchanged.” The rule thus stated applies here with force. The plaintiff was unable to produce any witness who saw the switch rail in a defective condition on the day the accident occurred, or for several days preceding. But she did produce witnesses who testified that it had been in that condition for several months, and up to within eight days of the accident. Another witness, introduced by defendant, testified that the rail was not repaired in any way during this space of time not covered by the plaintiff’s testimony. It is true that he testified at the same time that the rail was not in a defective condition; but to this extent his testimony was in conflict with that of other witnesses, and the jury had a right to reject it, which they doubtless did. We find no error committed in this respect.
Error of the court is assigned in propounding a question to a witness, introduced by defendant, who testified in substance that under the rules of the company it is the duty of an engineer to inspect his engine before starting on a run, notwithstanding the fact that other rules provided for inspections by other employees at the round-house. The question propounded by the court is as follows: “Is he to put no faith in the inspection of the round house?” Witness gave no answer to this question, but the record shows that the defendant objected to the question, and that ihis objection was overruled. It is argued that the effect of the question was an expression of the court’s opinion that the engineer could have relied entirely on the round house inspection, and not inspected for himself according to the rules. We think that the question cannot be construed as an expression of the court’s opinion. The witness was testifying concerning the rules of the company and the duty of certain employees under given circumstances; and the purpose of the question doubtless was to obtain from the witness an expression of his opinion, based upon his familiarity with the operation of trains, as to the diligence that should be exercised by an engineer in his inspection, and how far it would be prudent for him to rely upon the previous inspection at the round house.
Even if the question was erroneous, however, it was not answered, and therefore there could have been no prejudice in propounding it. In no event can we discover any prejudicial effect. The particular matter under inquiry then was as to whether or not proper care had been exercised by the company’s servants in inspecting the engine; and the evidence tended to show that there was a discoverable defect. There is no plea of contributory negligence, and no contention anywhere in the record that the engineer was guilty of any negligence which contributed to his own injury.
Error of the court is dssigned in refusing to give the following two instructions, requested by the defendant:
“If you find from the evidence in this case that there are two theories as to how the accident occurred, and that the evidence tends equally to show that it was caused by reason of the switch being tampered with, or that there was some defect, or, in other words, you are unable to tell from the evidence whether the injury was caused by a defect or caused by the switch being tampered with, your verdict must be for the defendant.”
“You are instructed that where the evidence tends equally to show that an accident happened in one of two ways, the plaintiff cannot recover; therefore, if you find from the evidence in this case that the evidence tends as strongly to show that the accident was caused by some person having broken the lock and tampered with the switch as it goes to show that it happened because of some defect, then your verdict must be for the defendant.”
Without deciding whether these instructions were accurate, it is sufficient to say that they were covered by other instructions given at the instance of both parties. The court charged the jury that there could be no recovery by the plaintiff unless she established by a preponderance of the evidence the fact that the injury had been caused by negligence of the company’s servants in the particulars set forth in the complaint. Numerous instructions were given at the request of the defendant submitting the case to the jury on these disputed questions of fact; and, even if the two instructions quoted above are conceded to be correct, there was no prejudicial error in refusing them.
It is contended that the verdict is excessive. Plaintiff’s decedent was shown to have been twenty-four years of age, a man of good habits, healthy, intelligent and industrious. He left no children. The case was therefore stripped of all elements of damage except as to the amount of his probable contributions to those dependent upon him. The evidence tended to show a present earning capacity at the time of his death and contribution to his wife of $900 per annum. It tended to show also, and the jury were warranted in finding, that his earning capacity would probably have been increased — to what extent is a matter of speculation. It is shown that his wages had been increased from time to time, and that he was in line of promotion. According to the annuity tables, placing his contributions at $900 per annum, computing at the rate of 6 per cent, per annum, the recovery should have been for $10,845. Making due allowances for the probable increase in his earning capacity, we are of the opinion that the evidence is insufficient to sustain a verdict for more than $15,000. While much latitude is allowed the jury-in passing upon what the earning capacity will probably be, the power of the jury in this respect is not unlimited. They should not be allowed to indulge in extravagant speculation, not warranted by the evidence, as to what .the increased earning capacity might be. The burden of proof is on the plaintiff to produce evidence which tends to throw light upon the question, in some substantial way, as to what the future earnings will probably be and the present value thereof to those who were dependent on the decedent. Railway Company v. Robbins, 57 Ark. 384.
If the plaintiff will, within fifteen days, enter a remittitur down to $15,000, the judgment will be affirmed; otherwise it will be reversed and remanded for new trial.