On Rehearing.
SOMMERVILLE, J.[1] In support of its application for a rehearing, defendant says that the court “have exonerated the defendant from all of the charges of negligence, except the charge that the car was unprovided with a headlight.” In this the defendant has erred. The lack of a headlight was, in the opinion of the court, sufficient negligence to warrant an affirmance of the judgment of the district. court, and the other acts of negligence alleged and proved were not considered at length.
The record contains proof of great negligence on the part of the defendant company in the management, operating, and equipment of the motorcar used in transporting its bridge gang to and from the point of work. Defendant company required the bridge gang, of which the deceased, Lewis, was a member, to hoard on its boarding cars at Melville. Erom that point the gang, under the direction of the defendant’s foreman, departed each morning for the point of work, in an open motorcar with a trailer attached. At the time of the accident, the evidence shows that the car while returning to Melville was filled with 10 or 11 workmen and a large amount of loose tools and rope; that the car was without handholds, railing, or other means of protection in case of a sudden stop or collision. This was negligence on the part of the defendant company; and, together with other acts of negligence, including the want of a proper headlight, were the proximate causes of the death of Lewis. Again, nightfall was approaching, and darkness was certain to overtake the crew before it reached Melville, and the foreman knew that to be the case; yet, on its homeward journey he left the car, and placed it in charge of an inexperienced youth, weighing *233about 100 pounds, and some 17 years of age. This was another act of negligence. The car was started on its journey homeward, without any headlight whatever to show obstructions that might he on the tract after nightfall. When the accident occurred the youth who had been placed in charge of the car was unable to see the track before him for more than a few feet.
Again, this car was traveling at a rate of SO or 40 miles an hour, and at such speed as would prevent its being stopped within 150 or 200 feet; and at a place where the employes of the defendant knew that obstructions were likely to be on the track. A speed of 12 miles per hour in daylight would have been sufficient for this motor car to have made.
All of these acts of negligence, taken together, were the proximate causes of the accident to the deceased which resulted in his death.
[2-4] This action is founded on the federal Employers’ Liability Act of Congress of April 22, 1908 (chapter 149, 35 Stats. 65), as amended by act of April 5, 1910 (chapter 143, 36 Stats. 291 [U. S. Comp. St. §§ 8657-8665]).
Plaintiff, as the widow of Charles Lewis, in her own behalf and on behalf of her minor child, recovered a judgment in the district court for damages because of the death of Lewis while employed by the defendant in interstate commerce. The judgment was for $17,500. On the former hearing this judgment was affirmed, and a rehearing was granted principally as to the quantum of damages to be allowed.
Defendant has argued on this hearing that the deceased assumed the risks of his employment, and that therefore his widow cannot recover damages. The federal Employers’ Liability Act provides for the assumption of “extraordinary risks incident to his (employé’s) employment,” but the record does not disclose that Lewis assumed any extraordinary risks in boarding the motorcar, under the direction of his employers, for the purpose of being taken back to the board; ing cars of the defendant company, where he was required to return each night. But defendant failed to plead assumption of risk on the part of Lewis; and, as this is a special defense, which has to be specially pleaded, it cannot be heard on the trial of the case at this time, particularly on an application for rehearing, when it was not pleaded or argued in the trial court or on the former hearing of the ease in this court.
[5] Plaintiff answered the appeal, and asked for an increase in the judgment appealed from. The deceased was a young man, aged 25 years, who was engaged as a member of a bridge gang, working for the defendant railroad company at the time of the injury to him and his death. He was robust, intelligent, and ambitious, and without bad habits. He was at the time of his death- earning $2.50 per day, and his wife testified that he gave all of his salary to her for the support of herself and her child. The district judge assumed, as a basis of the judgment rendered by him that the deceased contributed $600 a year for the support of his wife and family, and rendered judgment against the defendant on that basis. But the evidence shows that at the time of the trial bridge gang workers were being paid $3.50 per day, and with the industrious habits and ambition of the deceased it is fair to assume that his earnings would have been still further increased. And with this increase, contributions to his family’s support would have been also increased, say to $800 per annum; and, plaintiff asks the court to take this fact into consideration in computing the amount of the judgment to be rendered against the defendant. Considering all the circumstances, particularly the character of the deceased, and the fact that his fellow employes were earning $3.50 per day at the time of the trial of the casé, the re*235quest is reasonable and proper that the judgment of the court should be based upon the advanced wages which the deceased would reasonably have been earning at that time if he were alive. As the minimum contribution of the deceased to his family would be at least ¡¡5800 per year; and as his life expectancy was 38.81 years, there should have been judgment for plaintiff in the sum of $16,996.60, under the rule used in the Jones Case, 143 La. 307, 78 South. 568.
[6, 7] Plaintiff asks that the judgment be increased by $5,000 for the suffering endured by the deceased during the two days that he was alive before he succumbed. But plaintiff has not demanded in her petition damages to herself and her child by reason of the sufferings of her deceased husband. This is not a suit for conscious pain and suffering of the decedent before the injury became fatal. Such claim might have been made by her under section 9 of the federal Employers’ Liability Act as amended, in the same suit with a claim for damages for pecuniary loss to herself and child, under the law as construed in the eases of St. Louis Iron Mountain & Southern Railway Co. v. Craft, 237 U. S. 648, 35 Sup. Ct. 704, 59 L. Ed. 1160, and Great Northern Railway Co. v. Capital Trust Co., 242 U. S. 144, 37 Sup. Ct. 41, 61 L. Ed. 208, L. R. A. 1917E, 1050.
Plaintiff alleges that her husband suffered because of the injuries inflicted upon him, but in her prayer for judgment she asks for only $10,000 for herself and her child because of the deprivation of the pleasure and solace of her husband’s companionship and of his care, etc., and the great physical pain and anguish to her, and for the further sum of $25,000 for her care and maintenance of which she and her child had been deprived by his death, and she asked for a total judgment of $35,000.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by reducing it from $17,500 to $16,996.60, with interest, and, as amended, it is affirmed. Costs of appeal to be paid by plaintiff.
O’NIELL and PROVOSTY, JJ., dissent from the ruling increasing the contributions from $600 to $800 per annum on the mere prospect that the wages which the deceased was earning at the time of his death would have been increased, and are of the opinion that the judgment should be for $12,747.46, according to the rule laid down in the case of Jones v. Kansas City Southern Ry. Co., 143 La. 307, 78 South. 568.