Burton v. Wilmington & Weldon R.R. Co.

• Decision Date: 31 January 1880
• Citation: 82 N.C. 504
• Court: North Carolina Supreme Court
• Parties: R. O. BURTON, Adm'r, v. WILMINGTON & WELDON RAILROAD COMPANY.

82 N.C. 504

R. O. BURTON, Adm'r,

v.WILMINGTON & WELDON RAILROAD COMPANY.

Supreme Court of North Carolina.

January Term, 1880.

CIVIL ACTION for Damages removed from Halifax and tried at Spring Term, 1879, of NORTHAMPTON Superior Court, before Eure, J.

This action was brought under Bat. Rev., ch. 45, §§ 121, 122, 123, to recover damages for the pecuniary injury resulting from the death of Edward Conigland, (intestate of plaintiff) alleged to have been caused by the negligence of the defendant company. The statement of the case of appeal, sent up with the record proper, states that no special requests for instructions to the jury on the part of the defendant were refused, and that no exception was taken to any direction that was given, and so, the attention of this court is to be given to the matters assigned for error in the progress of the trial, and in the law as laid down to the jury by the judge.

In the course of the trial, the plaintiff, among other proofs adduced upon the point of the quantum of damages resulting from the death of his intestate by the alleged negligence and default of defendant, proved, against the objection of defendant, by one Gooch, that the intestate at the time of his death was administrator of the estate of J. L. Long, deceased, worth in all about twenty-two thousand dollars, and indebted to its full value, and requiring a sale and application of the whole of it to his debts. He also proved that intestate had collected and administered only five thousand of the assets, leaving the residue worth about seventeen thousand dollars, to be administered by the witness, who succeeded him as administrator de bonis non, and that the usual commissions allowed was from two and a half to five per cent on the receipts and disbursements, according to the amount of the estate and the trouble and difficulty in administering it.

To the admission of this evidence, the defendant objected, and in its reception error is assigned. Verdict and judgment for plaintiff, appeal by defendant.

Messrs. Day & Zollicoffer, Mullen & Moore and J. B. Batchelor for plaintiff .

Messrs. Gilliam & Gatling, for defendant .

DILLARD, J., after stating the case.

It seems to us the evidence was properly received by the court. The action, though not allowable at common law, is authorized by statute in our state, wherein it is permitted to be brought by and in the name of the personal representative of the deceased, and the amount recovered is directed to be disposed of according to the statute of distributions of personal property in cases of intestacy. In assessing the damages, the jury in the terms of the act are restricted to such as they shall deem fair and just, with reference to the pecuniary injury resulting from the death. And it is declared that the damages so recovered shall be for the exclusive use and benefit of the widow and issue in all cases where they are surviving. So we see that the plaintiff, if entitled to recover, was entitled to recover damages to the extent of the pecuniary injury resulting from the death of Edward Conigland to his children, of whom he left one or more surviving him, and for their benefit, and not to swell the assets of the estate.

The damages thus sustained were uncertain and indefinite, and no absolute or definite rule has been or can be laid down on the subject. In estimating the injury, it must necessarily be left in a great degree to the sound sense and discretion of the jury, in view of all the facts and circumstances. By the death of the intestate, his next of kin presently got what he had, and if he had not been killed, he might not have added anything more for their advantage, and in that event, they suffered no injury, or but little, in dollars and cents from his death. But then he might have accumulated something more, and whatever that might be in the judgment of the jury, is the measure of the injury sustained according to the statute.

To determine whether the deceased would have earned something or...