Kearney Elec. Co. v. Laughlin

• Decision Date: 18 June 1895
• Citation: 45 Neb. 390,63 N.W. 941
• Parties: KEARNEY ELECTRIC CO. v. LAUGHLIN.
• Court: Nebraska Supreme Court

45 Neb. 390

63 N.W. 941

KEARNEY ELECTRIC CO.

v.LAUGHLIN.

Supreme Court of Nebraska.

June 18, 1895.

Syllabus by the Court.

1. A widow, as administratrix, sued a corporation for negligently causing the death of her husband. The action was based on chapter 21, Comp. St. 1893. The petition alleged that the deceased left seven minor children,--the oldest 13 years, and the youngest 5 months, of age,--“wholly dependent” on the deceased “for their support and maintenance.” Held:

(1) That the petition was not open to the objection that it did not aver facts showing that the persons for whose benefit the suit was brought had, by reason of the death of the intestate, sustained pecuniary injuries, within the meaning of said statute.

(2) That the words “support and maintenance,” as used in the petition, meant food, clothing, and shelter; and the words “wholly dependent” implied that the deceased was the person, and the only person, whose legal and moral duty it was, and to whom the children looked, and upon whom they relied, to furnish the necessaries of life.

(3) That it is not absolutely necessary that a petition based on this statute should contain the words “damage, injury, or loss.” It is sufficient, in that respect, if it appears from the averments of the petition that, by reason of the death of the intestate, a pecuniary loss, injury, or damage has resulted to the wife and next of kin of the deceased.

2. Such an action as the one at bar was unknown to the common law, and is purely a creature of statute, but solely because of that the courts will not give the statute a technical or narrow construction.

3. Whether the rule of the common law, that statutes in derogation thereof are to be strictly construed, is in force in this state, doubted.

4. The intestate was killed by the caving in of the earth while driving a tunnel for the corporation. The evidence (set out at length in the opinion) examined, and held to support the finding of the jury that the negligence of the corporation was the proximate cause of the death of the intestate.

5. The rule that a servant, by his contract of employment, assumes the ordinary risks and dangers incident thereto, cannot be successfully invoked as a defense by a master, unless he shows that the machinery, tools, and appliances furnished by him to the servant were reasonably safe and fit for the performance of the work in hand, and which the servant, in the execution of his work, by the exercise of ordinary care on his part, might use with reasonable safety to himself, and that the appliances, machinery, or tools which caused the injury to the servant were, when used by him, obviously defective and dangerous. Railroad Co. v. Baxter (Neb.) 60 N. W. 1044, distinguished.

6. Under an assignment that the court erred in admitting or rejecting evidence, this court cannot review anything. Under an assignment that the court erred in admitting the evidence of a named witness, if the record shows that any part of the evidence of such witness was properly received, the assignment will be overruled.

7. On the trial the court instructed the jury as follows: “You are to determine from all the facts and circumstances, as shown by the evidence, whether the deceased was exposed to unusual or extraordinary danger in digging the tunnel; and, if you find that he was, this would be negligence on the defendant's part, and the plaintiff could recover,” etc. Held:

(1) The court might have properly told the jury that if the deceased, by working in the tunnel at the time and in the manner and under the circumstances that he did, was thereby exposed to unusual or extraordinary danger, without knowing it, and without opportunity to know it, that fact was evidence of negligence on the part of the company, but it was not for the court to say that the fact rendered the company guilty of negligence. Whether it did was for the jury.

(2) That the giving of the instruction was reversible error.

8. On the trial the district court instructed the jury as follows: “If the danger was unusual, and not incident to the employment, and the employé had no knowledge of the unusual danger, and could not, with ordinary care and prudence, have discovered it, he would not be deemed to have consented to incur such unusual risk.” Held, that the instruction was correct.

Error to district court, Buffalo county; Holcomb, Judge.

Action by Bridget Laughlin, as administratrix of the estate of Daniel Laughlin, deceased, against the Kearney Electric Company, for the death of plaintiff's husband. Plaintiff had judgment, and defendant brings error. Reversed.

Marston & Nevius, for plaintiff in error.

Oldham & Murphy, for defendant in error.

RAGAN, C.

Bridget Laughlin, as administratrix of the estate of Daniel Laughlin, deceased, sued the Kearney Electric Company (hereinafter called the “Company”), in the district court of Buffalo county, for negligently, as she alleges, causing the death of her intestate and husband. The administratrix had a verdict and judgment, and the company, to reverse said judgment, has prosecuted to this court a petition in error, assigning the following errors:

1. That the petition of the administratrix does not state a cause of action. The petition, among other things, contained the following averments: “That the deceased, Daniel Laughlin, died intestate, and left surviving him, as heirs of his estate and his next of kin, the plaintiff, who was his wife, and the following named minor children, namely: Nora, age thirteen years; May, age twelve years; Kate, age ten years; Margaret, age eight years; James, age six years; Daniel, age five years; Michael, age three years; and Samuel, age five months. That the plaintiff and above-named minor children were wholly dependent on the said Daniel Laughlin for their support and maintenance.” This assignment is predicated upon the contention that there is no allegation in the petition that the widow or her children have suffered any pecuniary damage by reason of the death of the intestate. This action is brought under chapter 21, Comp. St. 1893, which provides (section 1) “that whenever the death of a person shall be caused by the 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 company or corporation which would have been liable if the death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.” Section 2: “That every such action shall be brought by and in the name of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries, resulting from such death, to the wife and next of kin of such deceased person, not exceeding the sum of five thousand dollars; provided that every such action shall be commenced within two years after the death of such person.” It is not doubted that the petition based on this statute must aver facts showing that the persons for whose benefit the action is brought have, by reason of the death of the intestate, sustained pecuniary loss, injury, damages. Such an action as the one at bar was unknown to the common law. It is purely a statutory action. But solely because of that the courts will not give it a technical or narrow construction. Indeed, it is doubtful whether the rule of the common law, that statutes in derogation thereof are to be strictly construed, is in force in this state. The courts are prohibited by positive statute from applying such rule to any of the provisions of the Code of Civil Procedure. See section 1, Code Civ. Proc. The petition assailed alleges that the widow and administratrix, and her minor children, were wholly dependent upon the deceased for support and maintenance. “Support and maintenance,” as here used, mean food, clothing, and shelter. The words “wholly dependent,” as here used, fairly imply that the deceased was the person, and the only person, whose legal and moral duty it was--to whom they looked, and upon whom they relied--to furnish the necessaries of life; and the result of the decease of this man was to inflict upon his widow and minor children a pecuniary loss. A pleader should state the facts which constitute his cause of action or defense; but it is not absolutely necessary, in such an action as the one at bar, that the petition should contain the words, “damage, injury, or loss.” It is sufficient, in that respect, if it appears from the petition that by reason of the death of the intestate a pecuniary loss has resulted to the wife and next of kin of the deceased. We have examined the cases cited by counsel for the company in support of his contention that the petition in this action does not state a cause of action. Some of these authorities we do not regard as being in point, and others, if in point, we are not disposed to follow. The case of Hurst v. Railway (Mich.) 48 N. W. 44, cited by counsel to support his argument, was a suit brought by a father, as administrator of his deceased child (a year and 11 months old), under a statute similar in its terms to the one quoted above. The petition alleged that the Detroit City Railway had negligently caused the death of the child. The court said, “No proof was made by the plaintiff of any pecuniary loss, and there is no such allegation in the declaration.” It...