Plaintiff in this suit prays for the recovery of damages in the sum of $30,-000 for the benefit of herself as widow, and for the benefit of her minor children, alleged to have been suffered on account of the death of Thomas A. Jones, her late husband and father of her said children.
She charges that her said husband, who was a locomotive engineer in the employ of defendant company, was killed while so em*309ployed in a collision and wreck on defendant’s railroad near the city of Shreveport, said collision and wreck being caused by the gross negligence and carelessness of the said defendant and its employes. The defendant being an interstate commerce carrier, plaintiff based her cause of action on the act of Congress which regulates the liability of employers for personal injuries to their employes. Defendant, after unsuccessfully attempting to remove the case to the United States District Court, answered plaintiff’s demand, and was after due trial condemned to pay plaintiff the sum of $17,500. That judgment was appealed to this court, and was affirmed. See 137 La. 178, 68 South. 401.
The case was then brought by writ of error to the United States Supreme Court, and that tribunal reversed our decree on the ground that we had committed error in ruling that evidence of contributory negligence rejected by the trial court for a wrong reason was nevertheless properly excluded, because it was not offered for the specific purpose of mitigating damages, there being no local rule requiring counsel, without inquiry from the court, to announce in advance the purpose for which evidence is tendered. The cause was then remanded to the trial court, in order to afford defendant an opportunity to show, if it could, that deceased had contributed to his death by his own negligence.
Pursuant to the decree of the United States Supreme Court, the case was again tried in the district court for the parish of Caddo, and a verdict was then rendered in favor of plaintiff in the sum of $26,500, and the present appeal is from a judgment based upon that verdict.
Opinion,
Defendant alleges error on the part of the trial judge in his instructions to the jury. It complains of the failure of the jury to apply, the law as charged by the judge, and it also complains of the conclusions of fact reached by this court in its former opinion.
[1] On the last trial, which was ordered mainly for the purpose of permitting it to show contributory negligence on the part of Jones, the deceased, defendant signally failed to establish such contributory negligence. It may be the failure on its part to offer any testimony to that effect which inferentially it pretended to be able to produce, when it so strenuously complained of the ruling under which such testimony was declared inadmissible, that induced the jury to increase the original award of damages from $17,500 to $26,500. While the jury in the last trial was in no manner bound by the verdict found in the previous trial, yet, if we are correct in our surmise as to the cause which brought about the substantial increase in the amount awarded, such increase can certainly not be justified on any such ground. That would be penalizing a litigant for availing himself of a defense to which the United States' Supreme Court has declared him legally entitled.
[2] We understand defendant’s 'complaint in regard to the instructions given to the jury by the trial judge is not made with a view of having the case remanded. It is now well settled that in civil cases the court will apply the law which is pertinent to the facts, and proceed, to a proper and final decision of all the issues, regardless of the instructions which may have been given by the trial judge to the jury, but this complaint is made in order to substantiate the charge of serious error on the part of the jury in its appreciation of the evidence and in awarding plaintiff such a large amount of damages.
The questions of fact at issue herein were thoroughly investigated by this court on *311the previous appeal, and a reconsideration thereof as they are presented in the original record, as well as in the present one, has only served to confirm us in the conclusions which we then reached. Defendant contends that we erred when we characterized the movement of the loaded box car which came in collision with the passenger train and caused the death of Jones as resulting from a flying switch. Technically speaking, that was error, but in actual effect it is even more dangerous, and therefore it was greater negligence on the part of defendant to have permitted the loaded box car to be put in motion by gravitation on a descending grade, called in railroad parlance “high lining,” than to have imparted that motion on a level track, by means of a locomotive, in order to make a “flying switch.”
We are firmly of the opinion that the collision which caused the death of Jones was the result of gross negligence on the part of defendant, and that plaintiff is entitled to recover compensation. The amount of that compensation, due regard being had to the purposes of the law, cannot be fixed with any mathematical certainty, and it is left more or less to the discretion of the courts.
We are most earnestly asked to establish some fixed rule by which it might be gauged, but that function being more properly legislative than judicial, we are unwilling to assume it, however desirable and beneficial such a rule might be.
The original award of $17,500 made by the jury on the,first trial was approved by this court as fair and just, apd we see no good reason either to increase or diminish it, and so believing and for the reasons stated.
It is ordered that the amount of the judgment appealed from be reduced from $26,-500, to $17,500, and, as thus amended, that it be affirmed.