[233 U.S. 80, 81] Messrs. J. E. McDonald, L. E. Jeffries, and B. L. Abney for plaintiffs in error.
Mr. Justice Holmes delivered the opinion of the court:
This is an action under the employers' liability act of April 22, 1908, chap. 149, 35 Stat. at L. 65, U. S. Comp. Stat. Supp. 1911, p. 1322, for causing the death of the plaintiff's intestate. The plaintiff got a verdict for $25,000, on which the court ordered judgment upon the plaintiff's remitting $5,000. Exceptions were taken, but the judgment was affirmed by the supreme court of the state. 98 S. C. 42, 79 S. E. 710. The exceptions related to the instructions of the court on the matter of liability, and to the entering of judgment upon a verdict alleged to be excessive. As to rulings of the former class, we have indicated that then the statute is made a ground for bringing up ordinary questions of negligence, we shall deal with them in a summary way, and usually content ourselves with stating results. Whether such questions are open in a case coming from a state court we need not decide, as, if open, they can be disposed of in a few words.
The defendant was killed by the falling of his engine through a burning trestle bridge. There was evidence tending to show that the trestle was more or less rotten, that the fire was caused by the dropping of coals from an earlier train, and that the engine might have been stopped had a proper lookout been kept. The first complaint is against an instruction to the effect that, if a servant is injured through defective instrumentalities, it is prima facie evidence of the master's negligence, and that the master 'assumes the burden' of showing that he exercised due care in furnishing them. Of course the burden of [233 U.S. 80, 86] proving negligence in a strict sense is on the plaintiff throughout, as was recognized and stated later in the charge. The phrase picked out for criticism did not controvert that proposition, but merely expressed in an untechnical way that, if the death was due to a defective instrumentality and no explanation was given, the plaintiff had sustained the burden. The instruction is criticized further as if the judge had said res ipsa loquitur-which would have been right or wrong according to the res referred to. The judge did not say that the fall of the engine was enough, but that proof of a defect in appliances which the company was bound to use care to keep in order, and which usually would be in order if due care was taken, was prima facie evidence of neglect. The instruction concerned conditions likely to have existed for some time (defective ash pan or damper on the engine and rotten wood likely to take fire), about which the company had better means of information than the plaintiff, and concerning which it offered precise evidence, which, however, did not satisfy the jury. We should not reverse the judgment on this ground, even if an objection was open to an isolated phrase to which no attention was called at the time.
The supposed error most insisted upon is the entering of judgment upon a verdict said to be manifestly excessive. It is admitted that the judge charged the jury correctly, according to principles established by Michigan C. R. Co. v. Vreeland, 227 U.S. 59 , 57 L. ed. 417, 33 Sup. Ct. Rep. 192, but it is thought to be apparent as matter of law that the jury found more than the charge or the law allowed. The argument is this: The deceased was making not more than $900 a year, and the only visible ground of increase was the possibility that he might be promoted from fireman to engineer, with what pay was not shown. He could not have given more than $ 700 a year to his family. His expectation of life was about thirty years by the tables of mortality. Therefore at the legal rate of interest the income from $10,000 [233 U.S. 80, 87] for thirty years was all that the plaintiff was entitled to, whereas she was given the principal of $20,000 out and out. It may be admitted that if it were true that the excess appeared as matter of law,-that if, for instance, the statute fixed a maximum and the verdict exceeded it,-a question might arise for this court. But a case of mere excess upon the evidence is a matter to be dealt with by the trial court. It does not present a question for re-examination here upon a writ of error. Lincoln v. Power, 151 U.S. 436 , 38 L. ed. 224, 14 Sup. Ct. Rep. 387; Herencia v. Guzman, 219 U.S. 44, 45 , 55 S. L. ed. 81, 82, 31 Sup. Ct. Rep. 135. The premises of the argument for the plaintiff in error were not conclusive upon the jury, and although the verdict may seem to us too large, no such error appears as to warrant our imputing to judge and jury a connivance in escaping the limits of the law.