Such pain and suffering as are substantially contemporaneous
with death or mere incidents to it, as also the short periods of
insensibility which sometimes intervene between fatal injuries and
death, afford no basis for a separate estimation or award of
damages under the Employers' Liability Act, as amended by the Act
of April 5, 1910.
St. Louis & Iron Mountain Ry. v.
Craft, 237 U. S. 648,
237 U. S.
655.
Although an error not challenged in the state supreme court may
not be relied on here as a ground of reversal, it is proper for
this Court to point it out in anticipation of a possible new
trial.
Under the Employers' Liability Act, as amended April 5, 1910,
when the personal representative unites a claim for the injury
suffered by the decedent with a claim for losses resulting to the
beneficiaries from his death, the damages recoverable under the
former claim are limited to such as will reasonably compensate for
the loss and suffering of the injured person while he lived, and it
is error to permit
Page 242 U. S. 145
the jury to increase them by taking account of his premature
death and of what he would have earned or accomplished in the
natural span of his life.
St. Louis Iron Mountain Ry. v. Craft,
supra.
127 Minn. 144, 128 Minn. 537 reversed.
The case is stated in the opinion.
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
While employed by the railway company as a switchman, William M.
Ward was accidentally killed, December 13, 1912, and the
administrator brought suit in a state court under the federal
Employers' Liability Act, as amended, for the benefit of his father
and mother, seeking to recover their pecuniary loss and also
damages for the injuries suffered by him prior to death. Some
evidence tended to show that, after being run over by one or more
cars, although wholly unconscious, the deceased continued to
breathe for perhaps ten minutes. Testimony of other witnesses
supported a claim that there was no appreciable continuation of
life. Judgment upon an unapportioned verdict, in favor of the
administrator, was affirmed by the state supreme court, October,
1914. The railway company duly excepted to the following portions
of the charge:
"Did Ward's injuries kill him instantly? If he was killed
instantly, one rule of damages applies, while if he lived some time
after he was injured, another rule of damages would apply. There is
some evidence that he lived a few minutes after receiving his
injuries; there is other evidence that he was dead when taken out
from
Page 242 U. S. 146
under the car. If you should find that Ward died from his
injuries without living an appreciable length of time, then the
plaintiff could only recover, if at all, what would have been the
pecuniary value of Ward's life to his father and mother had he
lived. . . . And in that connection it would be proper for you to
consider his health, his disposition to contribute to the support
of his parents, the evidence of what he customarily earned, his
earning capacity, the amount he was in the habit of giving to his
parents, his age, his condition in life, the length of time he
probably would have lived had not this accident happened, and the
expectancy of the life of the father and mother, and the reasonable
expectancy of the parents in respect to benefits, if any, from the
services of their son; . . ."
"In case you find that Ward did not die instantly from his
injuries, but that he lived some appreciable length of time after
the accident, then you would come to another question in the
case."
"Under the law of the United States, it is provided that any
right of action given by the act of Congress in reference to
injuries of this kind under such circumstances, that the right of
action shall survive to the personal representatives of the
deceased for the benefit of his parents, if there is no surviving
widow and children. And if you should find from the evidence that
Ward did not die instantly from his injuries, but that he lived
some little time after he was injured, then, under the law, the
plaintiff would be entitled to recover damages in the same amount
that Ward, the deceased, would have been entitled to recover had he
brought the action in his lifetime. That is, you can award such
damages as, in your judgment, would be a full, fair, and reasonable
compensation for the loss sustained by Ward, the deceased, by
reason of the injuries he received. . . . And, in that connection,
it would be proper for you to consider his age, his habits
Page 242 U. S. 147
of industry, his health, his ability to work, his earning
capacity, and the amount he usually earned at the time he was
injured, and the length of time he would probably have lived had he
not been injured, using your best judgment under all the
circumstances in arriving at what would be a fair compensation for
his loss."
In
St. Louis & Iron Mountain Ry. v. Craft,
237 U. S. 648,
237 U. S.
655-658 (June 1, 1915), we held that, under the
Employers' Liability Act, as amended in 1910, the administrator of
a fatally injured employee might recover the beneficiary's
pecuniary loss and also for pain and suffering endured by deceased
between the moment of injury and final dissolution. We were
careful, however, to say (
237 U. S. 655),
"But to avoid any misapprehension it is well to observe that the
case is close to the borderline, for such pain and suffering as are
substantially contemporaneous with death or mere incidents to it,
as also the short periods of insensibility which sometimes
intervene between fatal injuries and death, afford no basis for a
separate estimation or award of damages under statutes like that
which is controlling here."
And, referring to the two separate grounds of recovery (
237 U. S.
658),
"Although originating in the same wrongful act or neglect, the
two claims are quite distinct, no part of either being embraced in
the other. One is for the wrong to the injured person, and is
confined to his personal loss and suffering before he died, while
the other is for the wrong to the beneficiaries, and is confined to
their pecuniary loss through his death. One begins where the other
ends, and a recovery upon both in the same action is not a double
recovery for a single wrong, but a single recovery for a double
wrong."
The present record presents the very circumstances which we
declared afforded no basis for an estimation or award of damages in
addition to the beneficiary's pecuniary loss. And although
apparently not challenged in the state supreme court, and therefore
not now to be
Page 242 U. S. 148
relied on as ground for reversal (
Harding v. Illinois,
196 U. S. 78,
196 U. S.
87-88), in view of a possible new trial, it seems proper
to point out that the method approved by the trial court for
estimating damages where the deceased's cause of action does
survive conflicts with the rule sanctioned by us in the
Craft case.
The judgment below is reversed, and the cause remanded for
further proceedings not inconsistent with this opinion.
Reversed.