Carter v. North Carolina R. Co.

• Decision Date: 15 November 1905
• Citation: Carter v. North Carolina R. Co., 52 S.E. 642, 139 N.C. 499 (N.C. 1905)
• Parties: CARTER et al. v. NORTH CAROLINA R. CO.
• Court: North Carolina Supreme Court

52 S.E. 642

139 N.C. 499

CARTER et al. v. NORTH CAROLINA R. CO.

Supreme Court of North Carolina

November 15, 1905

Petition for rehearing.Allowed.

For former decision, see52 S.E. 642.

In an action for wrongful death, an instruction that it was "necessary for the administrator to show by affirmative evidence that the net earnings of the deceased exceeded his expenditures, and unless he has done that it is the duty of the jury to say that he is not entitled to recover anything," was erroneous, as confining the jury to the consideration of the testimony in regard to the net earnings of deceased at and prior to his death, and directing the jury to deduct from the gross earnings which the deceased would have made his expenditures.

PER CURIAM.

This is a petition to rehear this cause disposed of at the last term 138 N.C. 750, 52 S.E. 642.His honor said to the jury, among other things: "The court charges you as a matter of law and it is so plain that there can be no mistake about it that in this case, whenever an adult has been killed--no matter whether he was killed by an individual or a corporation, it is all the same--and his administrator brings suit, it is necessary for the administrator to show by affirmative evidence that the net earnings of the deceased exceeded his expenditures, and unless he has done that it is the duty of the jury to say that he is not entitled to recover anything."To this instruction the plaintiff excepted.

There was error in two respects.The instruction, whether so intended or not, confined the jury to the consideration of testimony in regard to the net earnings of the deceased at the time of his death or prior thereto, or, in other words whether he had accumulated anything at the time of his death.By a proper construction of the statute(Code, § § 1498, 1499) the inquiry whether or not the relatives of the deceased have suffered any pecuniary loss by his death is not limited to the date of his death.It must necessarily extend beyond that period.The true question is, did the relatives really suffer any loss by reason of the fact that the deceased failed to live out his expectancy?In determining it, the jury must take into consideration the entire life, character, habits, health, capacity, etc., of the deceased, and, from the result of such consideration, estimate as near as may be, and ascertain according to the rule laid down by the court, what pecuniary advantage would have accrued to his relatives if he had lived out his expectancy, as the jury may find it to be, using the mortuary tables prescribed to aid them.This question is within the peculiar province of the jury.The court may not take it from them and decide it as a question of law.He instructs the jury in regard to the rule for ascertaining the net income during the entire life of the deceased, and how to ascertain the present worth of the amount fixed by the jury as the total accumulation during his life, and their verdict in the light of...