Consol. Traction Co. v. Hone

• Decision Date: 05 November 1896
• Citation: 59 N.J.L. 275,35 A. 899
• Parties: CONSOLIDATED TRACTION CO. v. HONE.
• Court: New Jersey Supreme Court

35 A. 899

59 N.J.L. 275

CONSOLIDATED TRACTION CO.

v. HONE.

Supreme Court of New Jersey.

Nov. 5, 1896.

(Syllabus by the Court.)

Error to circuit court, Hudson county; before Justice Lippincott.

Action by Henry Hone, administrator, against the Consolidated Traction Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Argued June term, 1890, before BEASLEY, C. J., and MAGIE and GARRISON, JJ.

Depue & Parker and Warren Dixon, for plaintiff in error.

Thomas P. Noonan, Jr., for defendant in error.

BEASLEY, C. J. This is a suit brought by Henry Hone, as the administrator of the estate of his deceased son, who was a minor, and was killed by the carelessness of the servants of the plaintiff in error, the Consolidated Traction Company, in the management of one of their cars. The statute lying at the basis of the suit provides: "That whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action of damages notwithstanding the death of the person injured," etc. Revision, p. 294. The following section directs that the action shall be brought by and in the name of the personal representatives of the deceased person, and that the amount recovered shall be for the exclusive benefit of the widow and next of kin of such deceased person; and that in every such action 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 wife and next of kin of such deceased person, etc. From these extracts from the statute it will be at once perceived that in this suit, founded upon it, as in all others of the same class, but two questions are raised, and but two can be raised upon the record, viz.: First, could the deceased, if he had survived, have maintained an action? And, second, this being so, what pecuniary loss has fallen on his next of kin by reason of his death? These are the facts constituting the issue to be tried, and no subject for trial can be more clearly defined. Notwithstanding this, it is contended in this case by the counsel of this traction company that they have the right to defeat the action if they can show that the death in question was the result in part of the negligent conduct of the next of kin, although such negligent conduct is not to be imputed to the Infant...