Cleveland, C., C. & St. L. Ry. Co. v. Drumm

• Decision Date: 10 March 1904
• Citation: 32 Ind.App. 547,70 N.E. 286
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. DRUMM.

32 Ind.App. 547

70 N.E. 286

CLEVELAND, C., C. & ST. L. RY. CO.

v.DRUMM.

Appellate Court of Indiana, Division No. 1.

March 10, 1904.

Appeal from Circuit Court, Delaware County; Jos. G. Lefller, Judge.

Action by Enoch Drumm, as administrator, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Thompson & Thompson, for appellant. Geo. H. Koons, for appellee.

ROBINSON, J.

Appellee's decedent and her husband were killed in the same accident at a highway crossing. Appellee brings the statutory action, the damages to be recovered to inure to the benefit of the next of kin. Decedent left, as her next of kin, brothers and sister and a niece and nephews. The brothers and sisters, the youngest of whom is 55 years old, are married, settled in life, have homes of their own, and are the heads of families. The niece and nephews, children of a deceased sister of the decedent, lived with their father as a family, and had so lived since their mother's death. None of these next of kin depended upon decedent for pecuniary support or assistance.

The court gave, among other instructions, the following: “(11) The court instructs the jury that it is not necessary, in order to recover in this case, that the next of kin of the decedent, Rachel Driscoll, should have a legal claim on her, the said decedent, but that the administrator is entitled to recover for them for the pecuniary loss to them, if any. The jury may estimate such pecuniary damages from the facts proved, in connection with their own knowledge and experience, which they are supposed to possess in common with the generality of mankind, but in no case could such damages exceed ten thousand dollars. (12) The court instructs the jury that no precise rule for estimating the loss recoverable under this statute can be laid down. When the relation of the party whose death has been caused to those for whose benefit the suit is being prosecuted has been shown, and her obligation, if any, disposition and ability to earn wages or conduct business, and to care for, support, counsel, advise, and protect her next of kin named in the complaint, the matter then is submitted to the judgment and sense of justice of the jury. In estimating the pecuniary value of Rachel Driscoll to her next of kin, the jury may take into consideration the probable or even possible benefits which might result to them from her life, modified, as in their estimation they should be, by all the chances of failure or misfortune.” It is not claimed that the decedent was under any legal obligation to support the next of kin for whose benefit this action was brought. The presumption that the wife and children sustain a pecuniary loss in some amount by the death of the husband and father does not obtain in a case like that at bar. For determining...