and with a robust constitution, at the age of nearly twenty-six years died, leaving an estate of $37.10. This verdict of itself, as to the measure of damages, is its own refutation. Besides, our statute give the highest damages of any statute upon this subject. (8 N. W. Reporter, 522; 8 Gray, 45; 21 Wis. 380; 22 id. 586; 29 id. 584; 87 Ill. 131, 245; 86 id. 296, 212; 37 N. Y. 288; 38 id. 450; 10 Kas. 524; 18 Mo. 164; 31 Pa. St. 273; 33 id. 318.)

13. Damages should be calculated on reasonable expectation of benefit. (54 Pa. St. 495; 7 Am. Rep. 450; 47 N. Y. 317; 25 Ohio 510; St. 66 N. C. 154.)

14. We complain of instruction No. 22:

"The burden of proof is upon the plaintiff to prove all the material allegations of his petition not admitted by the defendant, and upon the defendant to show contributory negligence on the part of the deceased by a preponderance of the evidence in the

case."

In a case where the connection of the deceased with the accident is shown by the plaintiff in making out his case, as in the case at bar, the better doctrine is, that the burden is upon the plaintiff to show the deceased free from fault. If it were the case of a passenger or a stranger, when the mere injury suggested negligence, the rule would be as the court intended to give; but not so here. Again, the court does not inform the jury, nor do they know what allegations are "material," nor is the court clear as to the burden until it reaches the defendant, when it says that he must show contributory negligence by a "preponderance of the evidence in the case," leaving the jury not only to infer, but to understand that the burden on the defendant is the greater. If this order is correct, we were prejudiced by the manner in which it was manifested. A proposition may be correctly stated in the abstract, and yet be misleading. (19 Ohio St. 110; 24 id. 668.)

15. We were entitled to a judgment for costs; its denial was prejudicial to us, and the order of the court below overruling our motion and demand for judgment "involves the merits of this

action."

We believe that this case comes within the third subdivision of 542 of the code; and claim, as a matter of law, that when the court below overruled and denied our motion for a judgment, it made just as much of an "order" as though it had granted our motion. It is only a ruling for plaintiff, instead of defendant.

We think the case at bar distinguishable from that of Burton v. Boyd, 7 Kas. 17, for in that case the findings of the jury were against the party moving for a new trial. Here we claim that all the findings touching plaintiff's right to recover are in favor of the defendant below. The refusal to give us judgment was material error, affecting the substantial rights of the complaining party. This error was not cured by the granting of a new trial. If our

substantial rights were injured, we are entitled to a remedy, and if a new trial is insufficient to give us what we are entitled to under the law, then we cannot be estopped by the statement that a new trial protects us in our rights.

Granting a new trial shows that in the opinion of the court below the opposite party was not entitled to a judgment, but does not prove that we are not deprived of some substantial right which might have been corrected without a new trial. True, we asked for a new trial; but can it be held that this deprives us of any other remedy provided by law? We do not think we waive any of our rights by asking and obtaining a new trial. If upon the special findings we are entitled to a judgment, would it not be wrong to put us to the expense of another trial? The very "justice of the case" requires, as a matter of law, judgment to be entered for the defendant when the merits of the case, as disclosed by the special findings of fact, show that the general verdict is inconsistent therewith. (Code, § 287.)

This case then is very similar to a case upon a demurrer to the evidence. In the one case the jury say what the facts are; in the other, the party by demurring to the testimony of the plaintiff, admits it to be true. In either case the question arises, to what judgment, if any, do the facts entitle the plaintiff? If a demurrer to the evidence is overruled, the defendant may, after he has made a motion for a new trial have the error reviewed; and the question involved, if the evidence is all presented to this court, is not alone whether a new trial should be granted, but whether or not the evidence so demurred to entitles the plaintiff in error to a judg ment. This court will presume that the plaintiff below presented all his evidence. And if all the evidence did not entitle him to recover, what reason would there be in remanding it for a new trial? So here, if the evidence supports the special findings, and these findings do not show any right to recover, why say that the defendant below must take a new trial?

Scott & Lynn, for defendant in error:

1. The district court erred in granting defendant's motion for a new trial on the ground named in its motion, to wit: excessive damages appearing to have been given under the influence of passion or prejudice. (Field on Damages, § 882.) The verdict having been rendered under proper instructions of the court, in harmony with the principles governing this class of cases as laid down in K. P. Ry. Co. v. Cutter, 19 Kas. 83, we insist that the court had no right to disturb it. The legislature having fixed the maximum of damages recoverable in such cases, we submit that no verdict, not in excess of such amount, is or can be excessive, and that the limitation in the statute is expressive of the legislative idea of what would or would not be excessive. The The proper construction of that statute is to make the jury, under the facts of the

case, when brought within the law, the exclusive judges of the amount of damages up to the limit fixed by the statute, and it has been held that when the statute makes the jury the sole judges of the amount of damages, the court cannot disturb their finding. (27 Miss. 423.) This act is in the highest sense remedial, and is entitled to receive the liberal construction which appertains to such statutes. (2 Vroom, 349.)

The court had no right to disturb the verdict in the face of the statute, and especially in the absence of any proper showing. (62 Pa. St. 329; see also 2 Sedgw. on Dam. [7th ed.] 652–655, note a.) Even where it has been held that the power to disturb the verdict as being excessive, rests in the discretion of the court (20 Ga. 428), yet this discretion does not supplant that of the jury. The court must decide whether there is enough evidence to support the verdiet, and if in its opinion there is sufficient, then the discretion of the court ceases. Beyond that point the discretion of the jury is unrestrained. Hence it follows that verdicts are often sustained, although they do not meet with the full approval of the court. (61 Ill. 287; 5 Ind. 224; 23 Barb. 639; 4 E. D. Smith, 110.)

We might for argument's sake grant that the verdict is large; but if we admit it to be excessive, that is no ground for a new trial. The statute says, "excessive damages, appearing to have been given under the influence of passion or prejudice" (Code, $306.) This court has decided that "the mere fact that damages are excessive, is not ground for a new trial. They must appear to have been given under the influence of passion or prejudice." (16 Kas. 456.) The law is, however, that the verdict must be so flagrantly excessive that the mind at once preceives it to be grossly unjust, or such as to warrant the belief that it was brought about by corruption, malice, or other undue means. (1 Minn. 156; 10 id. 350; 8 id. 154; 27 Mo. 28; 21 id. 354; 8 Rich. [S. C.] L. 144; 25 Ark. 381; 27 Miss. 68; 53 How. Pr. 385; 54 Ga. 224; 12 Barb. 492; 19 id. 461; 24 Cal. 513; 36 id. 590; 516 Ill. 405; 7 id. 432; 38 id. 242; 13 N. J. L. 294; 32 id. 70; 19 Conn. 317;1 Bibb, 247; 16 Me. 187; 16 Pick. 541.)

Granting or refusing a new trial for any ground mentioned in the statute may be reviewed like any other final order or judgment. (Dass. Comp. Laws, § 542, p. 674.) The granting of a new trial on the ground of excessive damages is a question of law, and if the court errs in so doing, it is the duty of the court of errors to reverse the judgment. (34 Wis. 188.)

Although pain and anguish cannot be considered in a death case, courts rightly consider death the most damaging species of personal injury. (8 Kas. 656; 9 Heisk. 829.) The following cases will illustrate what the courts of the country think are not excessive verdicts; 19 Kas. 488; 11 id. 8; 14 id. 520. In Shaw v. B. and W. R. R. Co., 8 Gray, 46, there were three verdicts for $15,000, $18,000

and $22,250, for personal injuries less than death; last verdict sustained. When a lawyer suffered permanent injuries less than death a verdict for $20,000 was sustained. (63 Barb. 260.) Permanent injuries less than death to a common laborer were held to warrant a verdict of $15,000. (13 Nev. 106.) In a case of injuries to a brakeman less than death, $12,000 was held not to be excessive. (50 Tex. 254.) In case of a brakeman getting $540 per annum, and being 30 years old, $11,000 was held not to be excessive for permanent injuries less than death. (43 Iowa, 662.) Permanent injuries less than death to a female school teacher, were held to justify a verdict for $8958. (88 Ill. 377.) In case of a common teamster suffering permanent injuries less than death, $9500 was held not excessive. (62 Me. 552.) In Wisconsin, where the court is very strict on damages, it sustained a verdict of $5500, where a sailor got one leg and two ribs broken, which confined him ten or twelve days in bed. (28 Wis. 569.) In a criminal conversation case, $10,000 was held not excessive. (4 E. D. Smith, 110.) A verdict for $200 in a death case was held so grossly inadequate that it was set aside. (46 Cal. 26.) In case of killing an infant daughter, a person from whom the least can be expected, the next of kin recovered $5000, and the verdict was sustained. (42 Cal. 216.)

It was suggested below that the relation of this mother to her son would not warrant as much damages as a needy wife and children. If this be the law, it is the first case we are aware of where poverty or wealth cuts any figure in the amount of recovery. If such were the law, it would pay railroads to employ none but men of wealthy families, for in such case, the next of kin not needing his support, could not recover if he were killed. This court says such is not the law. It is not to be determined by the needs of the survivors. (19 Kas. 91; 29 Gratt. 431, 570; 84 Pa. St. 419; 48 Tex. 372; 9 Heisk. 12, 841; 4 Col. 162.)

A new trial should not be granted for excessive damages, when the only defence at the second trial will be one that goes in mitigation of damages. (1 Bibb, 354.)

The jury were bound to consider all this evidence showing the relations of the deceased and his next of kin, his intelligence and vigor, the salary he was obtaining, his savings, and the fact that he was engaged in an employment which has a regular system of promotions, and that he was an attentive, intelligent, and energetic man, who had already been advanced by the defendant after two weeks of service, and would, in all probability, in time have earned a much larger sum than $684 in a higher position, if the possibilities of the future had not been forever closed to him by his untimely death. (19 Kas. 488-494; 43 Iowa, 676; 16 Irish L. R. [N. S.] 415.)

2. The defendant sought to prove by different witnesses that it was the custom of railroad companies throughout the country to

load long and projecting timbers on one car, we suppose, for the purpose of establishing that the flat car in question was not negligently loaded. To this character of testimony the plaintiff objected; the objection was sustained, and on the argument of the motion it was strenuously insisted that this testimony was improperly excluded, and that the ruling is error. The offered testimony was properly excluded. (107 Mass. 496; 109 id. 126; 1 Allen, 187; 8 id. 564; 8 Gray, 547; 55 Me. 444; 2 McLean, 157; 50 Md. 5; 91 U. S. 454; 31 Ala. 501; 3 Cush. 174; 50 Ill. 61; 7 Mo. App. 358; Lawson on Usages and Customs, 328; 17 Wall. 357.)

3. The railroad company, on its motion for a new trial, contended that the question propounded to Mr. Ferren was improper, he not being an expert. This question involved how far over the timbers projected an unmeasured distance, upon which any witness may give an opinion. (14 Kas. 110; 24 id. 453; 117 Mass. 122.)

4. Another and most important point is, have we any cause of action? The court below thought we had, and overruled that part of the defendant's motion for a new trial. The company also thought we had, as it did not demur to our evidence. However, if we have no cause of action, although the company has waived that question, we should like to know it. A completer man-trap than that in which Haas was caught, was never, in our judgment, invented. The following authorities show this to be a double case of negligence: 50 Tex. 254; 36 Iowa, 31; 8 Allen, 441; 100 U. S. 213; Dass. Comp. Laws, p. 784, §§ 28, 29.

5. It was strenuously insisted by the defendant in the court below that the question of the expectancy of the life of the next of kin, the mother, must be taken into consideration by the jury in determining the damages to be recovered, because, as it was claimed, the deceased being younger, his expectancy of life would be greater, and the probabilities are that but for his unfortunate death he might have outlived her, and no part of his probable future earnings could have gone to her. She might not have lived to enjoy any of his future accumulations, and therefore it is insisted the court erred in not allowing evidence on this point, and not instructing the jury in this regard as requested. Was this error?

We say the damages were fixed at the death of Haas; and so far as prospective increase or decrease of wealth or probable earnings are concerned, or enter into the case, the question is, what would probably accrue to him or to a man of his age? However, the next of kin is not a matter to be tried in the district court in this suit, more than perhaps to show that Haas left some next of kin. It is a matter for the probate court to settle when distribution is made by the administrator. (48 Ill. 410; 82 id. 198; 88 id. 204; Field on Dam., § 634; 46 Iowa, 195.)

The opinion of the court was delivered by