Louisville, N.A.&C. Ry. Co. v. Rush
Decision Date | 19 March 1891 |
Citation | 127 Ind. 545,26 N.E. 1010 |
Court | Indiana Supreme Court |
Parties | Louisville, N. A. & C. Ry. Co. v. Rush. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Carroll county; M. Winfield, Judge.
E. C. Field, for appellant. Hammond & Austin, for appellee.
On the 21st day of September, 1887, the appellee's daughter, then nearly seven years of age, was struck and killed by appellant's train of cars at Monon, Ind. The appellee brought this suit, and recovered a judgment for damages. From this judgment the appellant appeals, and assigns and discusses three alleged errors. The first is that the court erred in giving the following instruction to the jury: The court, at the request of the appellant, also gave the jury another instruction upon the same subject, which must be considered in connection with the one complained of. The additional instruction given reads as follows: The instruction given by the court on its own motion, when read in connection with the other instruction given, we do not think is erroneous. It is urged that the jury has no right to take into consideration the condition of appellee's family in estimating his damages. The appellee is entitled to recover for the pecuniary loss sustained on account of the death of the child. It is the pecuniary loss sustained by the father that the jury have to estimate and fix a value upon. The jury cannot rationally estimate and determine the amount of this loss without considering the condition of the appellee's family with respect to and use for the child. This was what the jury were considering; and the instruction, taken in connection with the other instruction on the same subject, did not infer that the condition of the family should be taken into account, except in relation to and bearing upon the value of the child's services. The condition of appellee's family might have been such as that the services of the child would be of no value to him, or they might have been such as to have been very valuable. In the case of Railway Co. v. Twiname, 121 Ind. 375, 23 N. E. Rep. 159, the wife of the appellee was engaged in managing a millinery business for her husband, without charge to him, and it was held that it was proper to admit evidence of the value of the services of the wife in the capacity in which she served her husband; that the husband was entitled to recover for the damages sustained on account of the loss of the services of the wife, and the value of her services and loss sustained by reason of her inability to perform them depended on the character and value of the services which she was capable of performing and accustomed to perform for her husband. In Pennsylvania Co. v. Lilly, 73 Ind. 252, the instruction also states that the jury may consider “the pecuniary value of all acts of kindness and attention which might reasonably be anticipated that she would have performed for the plaintiff and his family until her majority that would administer to their comfort as well as to their necessities.” The jury are expressly told in this instruction that they shall not consider acts of affection simply, and loss of companionship; and...
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