Baltimore & O. R. Co. v. State, to Use of Kelly

• Decision Date: 22 March 1866
• Citation: 24 Md. 271
• Parties: BALTIMORE & OHIO R. R. CO. v. STATE, Use of Kelly et al.
• Court: Maryland Court of Appeals

24 Md. 271

BALTIMORE & OHIO R. R. CO. v. STATE, Use of Kelly et al.

Court of Appeals of Maryland

March 22, 1866

Appeal from the Superior Court of Baltimore City:

This action was brought by the appellee, in the Superior Court of Baltimore City, to recover damages under the Act of 1852, ch 299, for the killing of a certain William Henry Kelly.

Exception.--The plaintiff to maintain the issues on his part joined, at the trial of the cause offered evidence tending to prove:

That the deceased was one of the employees of the Baltimore & Ohio R. R. Company before and on the 20th July, 1857; and that on said day he was killed "by being caught and crushed between an engine and tender, on the former of which he was at work;" that the company's agent in charge of the locomotive that caused the accident was incompetent for his place; that said locomotive was defective, and that the company had knowledge of said facts; that said Kelly was at the time of his death from thirty to thirty-six years of age a sober, moral, industrious man, enjoying good health; that he left surviving him a widow, a son about five years old and a mother, which survivors were the cestui que uses in the present action; that for about four years prior and up to the time of his death, said Kelly kept house in Baltimore supporting his wife and child, who lived with him; that he left little or no property; and that since his death his widow had supported herself and child by her own exertions.

It was further proved that said Kelly had been for four years prior to and up to the time of his death employed by the company as one of the hands in the boiler shop at Mount Clare; that he was an industrious man, a good hand, etc. "There was no proof of the specific wages paid to Kelly at the time of his death."

No prayers were offered by the plaintiff below; seven prayers were offered by the defendant, all of which were granted by the court except the fifth, which was in these words:

"That in the absence of proof, (other than the death, age and condition of health, and members and state of the family of said Kelly,) of actual damage, the verdict of the jury, in the event of its being for the plaintiff, must be for nominal damages only."

To the refusal of the court (Martin, J.,) to grant this fifth prayer the defendant excepted, and the verdict being for the plaintiff, this appeal was taken.

The cause was argued before BOWIE, C.J., and BARTOL GOLDSBOROUGH, COCHRAN and WEISEL, JJ.

John H. B. Latrobe, for the appellant:

The prayer in question was suggested by the belief that, with the power to prove what the wages were, the plaintiff was unwilling to show that they are comparatively small, and went before the jury at a venture. Now, the rule of law is well known, that the best evidence of which a case is susceptible must be produced where practicable. 2 Stevens' Nisi Prius, 1509. The question here was as to the amount that would compensate the widow and children for the loss they had sustained.

Punitive damages were not claimed; no prayer was offered by the plaintiff asking for them. The naked question was the compensatory damages. To ascertain what would be the best proof of them we must look at the elements properly entering into the calculation; these were:

1st. The age of the party and the probable length of life, during which he would be able to earn a support for his family, in a case where, like the present, his family was dependent on his daily labor. Sufficient evidence to this extent, it is admitted, was given.

2nd. The wages of such a person at the time of his death. These, unquestionably, ought to have been shown, when the jury would have had the elements for a fair conclusion as to the actual pecuniary loss sustained by the widow and children in consequence of the death. In stands to reason that the widow and children of a man, say, for illustration, at ninety cents a day, suffer less pecuniary damage from the loss of the husband and father than the widow and children of a man earning two dollars a day would suffer.

The verdict in this case was for $5,000. The income from this at six per cent. is $300 per annum in perpetuity, which will be the income paid to the plaintiffs if the present verdict stands; when, allowing even that the earnings of the deceased were one dollar per day, and that he would never have lost a day until he was sixty years of age, (a most improbable supposition,) the plaintiff, had he lived, would have had such an income for 25 years only, and from this income even there would have had to have been deducted the cost of his own support. In other words, the finding of the jury in the case is a perfect illustration of the importance of the best evidence where it can be procured, where damages purely compensatory in their character are sought.

The exception to the rule requiring the best evidence is the case where it is impossible to obtain it. But here there was no difficulty of the sort.

The authorities seem to be conclusive that the verdict, if for more than nominal damages, must be based, not merely on the fact of the death, but upon data which the jury may weigh in coming to a pecuniary result.

The Maryland Act is, in the main, taken from Lord Campbell's Act, 9 and 10 Victoria, ch. 93, and on this several decisions have taken place in England, showing that the pecuniary loss is the only loss to be considered. Armsworth v. R. R. Co., 11 Jurist, 758. Gilbard v. R. R. Co. See Chitty on Carriers, 413. Blake v. R. R. Co., 83 Eng. C. L. 93. See also New York v. Ransom, 23 How. 487.

A. W. Machen and R. J. Gittings, for the appellee:

The only question is, whether the court below was justified in rejecting the defendant's fifth prayer. There is no question of the plaintiff's right to recover, nor as to the amount of the verdict if actual damages were allowable; for the jury were properly instructed upon the measure of damages, and the quantum was a matter for their own determination, subject only to the discretion of the Superior Court on a motion for a new trial.

The defendant's fifth prayer demanded a peremptory instruction to the jury, that in finding for the plaintiff they must give nominal damages only.

1. It is a conclusive objection to the prayer that in pronouncing that there was no evidence of actual damage, other than the death, age and condition of health, and members and state of health of the family of William H. Kelly, the deceased, it altogether excluded the material facts, that by means of his labor he was keeping house and supporting his family, who by his death were thrown upon their own exertions.

The prayer has the vice condemned in the second prayer of the defendant in Planters' Bank v. Bank of Alexandria, 10 G. & J. 350, 351, 357, and in the prayer contained in the fourth exception in Byer v. Etnyre, 2 Gill, 162.

The statute of 9 and 10 Victoria, ch. 93, adopted--with modifications immaterial to the present inquiry--in our own Act of 1852, ch. 299, has now received a settled construction in England. If the deceased himself, had he not been killed, could have sued, there is a foundation for a case against the defendant. The extent to which the actual plaintiffs can recover depends upon another consideration, viz: Their reasonable expectation of pecuniary benefit from the continuance of the life of the person killed. They do not recover as his executors, (although in England the action is in the name of the executor,) nor is the quantum of damages fixed by the injury to his estate. And their expectation does not need to be founded on a right--if it is a reasonable expectation this is all that is required. Dalton v. R. R. Co., 4 C. B. N. S. 296, 93 Eng. C. L. 296.

In every trial there are some things which may be safely left to implication from matters of general knowledge. This rule of evidence, which is common to all jurisprudence, is well stated by Domat. "Some facts are such that they are always reputed to be true till the contrary has been proved; and there are others which are always reputed contrary to truth, unless they are proved. 1 Domat, by Cushing, section 2070, (1 Dom. Civ. L. 3 s. 4 pl. 7.) It was upon this principle it was held in Fay v. Prentice, 1 C. B. 828, 50 Eng. C. L. 728, that the jury might find that rain fell in a certain garden at Islington, in Middlesex, some time during the interval between the 1st of May and the 2nd of July, in the year 1844, although no evidence of the fact had been offered.

The tortious killing being established, only two things, as we have seen, were necessary to make up the claim to damages: 1st, that the person killed, if he had survived, would have been able to render pecuniary assistance to the parties for whose use the suit was brought; and 2nd, a reasonable probability that he would have bestowed such benefits.

The proof in this case more than supplies the demands of the law.

Now, as to the worth of that support and maintenance including as to the child, his education also, the jury had before them the age and habits of the parent, the age of the child, and especially the condition or station in life of all the parties. Who can say that the pecuniary value to a wife and her child five years old, of the support, which, during the child's minority at least, and the mother's life time, they would have continued to enjoy in the household of a laboring man of the...