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pecuniary sources after his death. If the next of kin were in no way dependent upon the deceased for support, or if they had no reasonable expectation of pecuniary benefit from him, nominal damages only can be recovered. It is held under the Illinois statute, that while there can be no recovery for the bodily pain and suffering, yet where death results from a cause other than the injuries for which the suit is brought, there may be a recovery, notwithstanding the deatlı, for precisely the same injuries that the party himself could have recovered for lad he lived until after final trial."
In Iowa it is only compensation for the actual loss that can be recovered under the statute, and in estimating the injury to the children of the decedent the time beyond their majority cannot be taken into account."
In an action under General Statutes of Kentucky, chap. 57, $ 3, for wrongful neglect, punitive damages may or may not be given in the discretion of the jury; and it would be error to instruct the jury that they should give punitive damages if they found willful neglect. The inquiry should be limited to the power of deceased to earn money had he not been killed, in fixing the measure of compensatory damages.'
Under Rev. Stat. of Missouri, 1879, $ 2121, the amount of damages is fixed by the statutes as expressly conferred upon beneficiaries named therein, and the defense claiming that insurance money received by plaintiff upon the death of her husband, caused by the wrongful act of defendant inures to defendant and is a defense pro tanto, is irrelevant and immaterial, and is properly stricken out. Under Rev. Stat. 1879, $ 2123, the measure of damages in an action by a father for the death of his minor son caused by negligence is such an amount of money, not exceeding $2,000, as the jury may deern fair and just with reference to the necessary injury resulting from death to the party surviving who may
be Chicago & N. W. R. Co. v. Moranda, 93 III. 304. 'Chicago & N. W. R. Co. v. Sirett, 45 II). 197; Chica:jo & A. R. Co. v. Shan.
non, 43 III. 338. 3 Chicago & E. 1. R. Co. v. O'Connor, 6 West. Rep. 773, 119 Ill. 586. * Walters v. Chicago, R. I. & P. R. Co. 36 Iowa, 'Louisville, N. A. & C. R. Co. v. Brooks, 83 Ky. 129. Carroll v. Missouri Pac. R. Co. 3 West. Rep. 839, 88 Mo. 239.
entitled to sue; and also having regard to the mitigating or aggravating circumstances attending the wrongful act. The pecuniary loss for the death consists of the expenses attending the injury and burial of deceased, also the full value of services of the son during the son's minority less the expense of supporting him.'
Under the Tennessee statute which provides that the administrator of the estate of the decedent wrongfully killed by another, or the next of kin, by the use of his name, may, in the right of the deceased recover damages for mental and physical suffering. loss of time, and necessary expenses, exemplary damages cannot be recovered; and it is error for the court to instruct the jury that total disablement for the decedent's period of expectancy of life before the injury may be taken as a standard of measurement of damages recoverable.'
In an action by the personal representative of a deceased minor to recover damages for the death of the intestate it is within the province of the jury to form an estimate of the damages with reference to the pecuniary injury, present or prospective, resulting to the next of kin. In such a case the jury may estimate the pecuniary damages from the facts proved in connection with their own knowledge and experience which they are supposed to possess in common with the generality of mankind and it is not neces. sary that any witness should express an opinion of the amount of such pecuniary loss. Where the jury had presented to them evidence of the parents of the deceased, their position in life, the occupation of the father, the condition of his health, the age of his son for whose death the action is brought, his intelligence, his ability to earn money, etc., it was their province from this evidence and their general knowledge, to form an estimate of the damages with reference to the pecuniary injuries, present and prospective, resulting to the next of kin. It is impracticable to furnish direct evidence of the specific loss occasioned by the death of a child, and to hold that without such positive proof a plaintiff could not succeed, would in effect defeat any substantial recovery.'
, Hickman v. Missouri Pac. R. Co. 4 West. Rep. 754, 22 Mo. App. 344. Illinois Cent. R. Co. v. Crudup, 63 Miss. 291. 3 Union Pac. R. Co. v. Dunden, 37 Kan. 1; Ihl v. Forty-second St. & G. St.
F. R. Co. 47 N. Y. 317; Chicago v. Scholten, 75 III. 469; Little Rock & Ft. 8. R. Co. v. Barker, 39 Ark. 491; Nagel v. Missouri Pac. R. Co. 75 Mo. 653; Chicago v. Hesing, 83 III. 204; Missouri River R. Co. v. Richards, 8 Kan. 101; Mayher v. Burns, 1 West. Rep. 577, 103 Ind. 328.
The statutory measure of damages in case of death caused by the negligence of another are fixed at such sum as the jury may deem just, in Alabama, Arkansas, California, Maryland, Michigan, Missippi, Nevada, New Jersey, New York, North Carolina, South Carolina, Texas and Vermont. In Colorado, the amount is fixed between $3,000 and $5,000. In Connecticut, between $500 and $5,000. In Illinois, Minnesota, Nebraska, Oregon and Wisconsin the limitation is $5,000. In Indiana, Ohio, Virginia and West Virginia the damages are limited to $10,000. In Georgia, the full value of the life of the deceased is fixed as the measure of damages. In Kentucky, the damages are to be the same as in case of personal injuries, not causing deathı, but where death is willfully caused, exemplary damages may be given. Louisiana fixes the recovery at the damages sustained. In Missouri, the damages are limited to $5,000, as the jury may deem fair and just, with reference to the necessary injury to the party entitled to sue, having regard to the mitigating or aggravating circumstances. The pecuniary loss in Pennsylvania fixes the amount to be recovered. In Tennessee, the physical and mental suffering, necessary expenses, loss of time and damages to the beneficiary are to be the measure of recovery.
$ 182. Statutory Provisions for Distribution of
Recovery for Death from Negligence. In Maine, in case of the death by negligence of the defendant, the widow; second, the children; third, the heirs, may recover damages under an indictment in the name of the state. In Texas, the jury determine the proportionate amount of the recovery to which cach of the parties for whose benetit the action is brought --husband, wife, children or parents, are entitled.
In Virginia, the jury may direct the distribution between the husband, wife, parent or children. If they do not the distribution is to be as in case of intestacy. In Wisconsin, the recovery is for the benefit, first, of the wife or husband; second, the lineal descendants; and third, lineal ancestors. In South Carolina, the recovery is for the benefit of the wife, husband, parent and children. In Rhode Island, where either parer.. or children survive,
the distribution is to be one half to the parent and one half to the children. In Mississippi, the recovery is for the use of the person suing, except where a widow with children is the plaintiff, when the distribution is to be as personal assets of the deceased father and husband. In Massachusetts a moiety is given to the widow and children, or to the widow solely, or to the next of kin. There is a proceeding authorized by indictment as in Maine. In Connecticut, one moiety to husband or widow, and one to lineal descendants. If no lineal descendants, the whole to husband or widow, and if no husband or widow, to the heirs. Although in Maryland the proceeding is in the name of the state, it is civil. In Nevada, the recovery is for the benefit of the husband or wife; next, children; next, grandchildren; next, brothers and sisters; and last, next of kin. In New Hampshire, the damages are first, for the widow; second, the children; third, next of kin. In New Jersey it is for the benefit of widow and next of kin. In New York, for the benefit of husband, wife or next of kin, and to be distributed as assets of decedent's estate, after payment of debts. In Oregon administration upon the recovery is to be as upon personal property of the deceased. In Pennsylvania the recovery is to be distributed as in case of intestacy. In Vermont the wife and next of kin are entitled. Except as otherwise mentioned the recovery is, under these statntes, free from the lien of creditors and is distributed as in cases of intestacy.
NEGLIGENCE-CONTRIBUTORY AS PROXIMATE CAUSE.
$ 183. Degrees of Negligence.
a. Negligence Defined—Slight Neyligence.
c. Gross Negligence. $ 184. Contributory Negligence as Proximate Cause. § 185. Rule of Contributory Negligence in Admiralty Jurisdiction.
§ 183. Degrees of Negligence.
As the liability of the carrier of passengers for injuries suffered by them, depends upon proof of the negligence of the carrier, and as the degree of negligence which will render the carrier liable varies under different circumstances,-a high degree of care being exacted as to operative machinery and the roadbed, and a slight degree about its station houses, where the peril is slight, although even there, if there be danger, more than ordinary care is required, as, a railway company, although not bound to have its depot platform absolutely safe, is bound to use more than ordinary care and precaution in making it reasonably safe'-a definition of what
-a constitutes negligence and its different degrees is necessary, in order to determine the value of evidence introduced to render the carrier liable on the ground of negligence,
a. Negligence Defined-Slight Negligence.
Negligence in a legal sense is a failure to observe for the protection of the interests of another that degree of care, precaution and vigilance which the circumstances demand, whereby such * Ray, Neg. Imp. Duties, Personal, 361; Gulf, C. & 8. F. R. Co. v. Butcher (Tex.) 11 Ry. & Corp. L. J. 173.