Carter v. W. Jersey & S. R. Co.

• Decision Date: 16 November 1908
• Citation: 76 N.J.L. 602,71 A. 253
• Parties: CARTER v. WEST JERSEY & S. R. CO.
• Court: New Jersey Supreme Court

71 A. 253

76 N.J.L. 602

CARTER

v. WEST JERSEY & S. R. CO.

Court of Errors and Appeals of New Jersey.

Nov. 16, 1908.

(Syllabus by the Court.)

Error to Circuit Court, Camden County.

Action by William B. Carter, administrator of Ida M. Carter, against the West Jersey & Seashore Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Gaskill & Gaskill, for plaintiff in error.

Lewis Starr, Allen S. Morgan, and James Gay Gordon, for defendant in error.

PITNEY, C. This action was brought under the so-called "Death Act" (P. L. 1848, p. 151; Gen. St. 1895, p. 1188, § 10) and resulted in a verdict and judgment for substantial damages. It appears from the record and bill of exceptions that William L. Carter and Ida M. Carter, his wife, while traveling as passengers upon an electric railway car operated by the defendant company, lost their lives through the derailment of the car. The resulting actions against the company were tried together. The defendant's responsibility was admitted. The deaths occurred on October 28, 1906, when the husband was 36 years of age, and the wife two years younger. There was no direct evidence to show whether either survived the other. They left surviving two daughters, one 14 and the other 10 years of age, who by the terms of the statute (amended Act March 31, 1897 [P. L. p. 134]), are the beneficiaries of the resulting actions against the company. The present writ of error brings under review only the judgment in favor of the administrator of Ida M. Carter, the wife.

Motions were made for a nonsuit and for the direction of a verdict for the defendant, upon the ground that there was nothing to show any pecuniary loss to the next of kin as a result of Mrs. Carter's death. We think these motions were properly overruled. There was evidence to show that the children lived with their parents in the city of Camden, in a home maintained with the earnings of the father, and that the wife performed the household duties, except that a woman was occasionally employed to do washing and cleaning. It was reasonably to be inferred that she took such care of her children as a mother usually takes. The statute provides that the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to the next of kin. As was long ago pointed out by Chief Justice Beasley, this means "A deprivation of a reasonable expectation of a pecuniary advantage, which would have resulted by a continuance of the life of the deceased." Paulmier, Adm'r, v. Erie R. R. Co., 34 N. J. Law, 151, 158. This definition has been consistently adhered to in subsequent cases. Demarest v. Little, 47 N. J. Law, 28, 30; Consolidated Traction Co. v. Hone, 60 N. J. Law, 444, 446, 38 Atl. 759; Cooper v. Shore Electric Co., 63 N. J. Law, 558, 567, 44 Atl. 633. Under circumstances such as are here presented we think there is a reasonable inference that the continuance of the mother's life would have resulted in substantial pecuniary benefit to the children. The statute does not require the plaintiff to show that the next of kin would probably have received from the deceased contributions of money or of things purchased with money.

In Tilley v. Hudson River R. R. Co., 24 N. Y. 471, 475, Denio, J., said: "The injury to the children of the deceased by the death of their mother was a legitimate ground of damages; and we do not agree with the defendant's counsel that they ought to have been nominal. The difficulty upon this point arises from the employment of the word 'pecuniary' in the statute, but it was not used in a sense so limited as to confine it to the immediate loss of money or property; for if that were so, there is scarcely a case where any amount of damages could be recovered. It looks to prospective advantages of a pecuniary nature, which have been cut off by the premature death of the person from whom they would have proceeded; and the word 'pecuniary' was used in distinction to those injuries to the affections and sentiments which arise from the death of relatives, and which, though most painful and grievous to be borne, cannot be measured or recompensed by money. It excludes also those losses which result from the deprivation of the society and companionship of relatives, which are equally incapable of being defined by any recognized measure of value. But infant children sustain a loss from the death of their parents, and especially of their mother, of a different kind. She owes them the duty of nurture and of intellectual, moral, and physical framing, and of such instruction as can only proceed from a mother. * * * It is argued by the defendant's counsel that there should be no recovery on these grounds, because the father is obliged to provide what the children have been deprived of by the loss of their mother. But this is not an adequate answer. The children have been deprived of that which they were entitled to receive by the wrongful act of the defendants. Their loss may or may not be made up to them from another source; but in the meantime they are entitled to a fair and just compensation from the wrongdoers by the provisions of this statute."' And see s. c, 29 N. Y. 252, 285, 86 Am. Dec. 297. In Gottlieb v. North Jersey St. Ry. Co., 72 N. J. Law, 480, 63 Atl. 339, this court decided that under the statute an action may be maintained by the administrator of a deceased wife for the benefit of her next of kin,...