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

• Decision Date: 07 January 1899
• Citation: 42 A. 165,62 N.J.L. 67
• Parties: MAY v. WEST JERSEY & S. R. CO. et al.
• Court: New Jersey Supreme Court

42 A. 165

62 N.J.L. 67

MAY

v. WEST JERSEY & S. R. CO. et al.

Supreme Court of New Jersey.

Jan. 7, 1899.

(Syllabus by the Court.)

Action by Louis May, administrator of Mizeal M. May, deceased, against the West Jersey & Seashore Railroad Company and the Atlantic City Railroad Company. Verdict for plaintiff. Rule to show cause why verdict should not be set aside. Rule refused on conditions.

Argued February term, 1898, before LIPPINCOTT, LUDLOW, and GUMMERE, JJ.

Howard Carrow, for plaintiff.

Joseph H. Gaskill, Joseph Thompson, Walter H. Bacon, and John W. Acton, for defendants.

LIPPINCOTT, J. This is an action under the death act of this state (1 Gen. St. p. 1188), by the administrator of Mizeal M. May, deceased, against the defendants, to recover damages, for the benefit of the father, as the only next of kin of the deceased. The cause was tried at the Salem circuit, at the January term, 1898, and resulted in a verdict of $3,000 damages. The liability of the defendants was conceded at the trial, but the contention upon the rule in this cause is that the damages awarded are excessive. The deceased, the son of the plaintiff, was a boy of about 15 years of age at the time of his death. The cause was tried upon the basis that the father was entitled to the earning capacity of the deceased until he should arrive at the age of 21 years, if he had lived so long, and not beyond that time. Telfer v. Railroad Co., 30 N. J. Law, 188. The rule of law laid down in Telfer v. Railroad Co., supra, was that, in actions of this class, the plaintiff was entitled to recover nothing but the pecuniary loss sustained by the person for whose benefit, as next of kin, the action was brought. This is the measure of damages prescribed by statute. Mr. Chief Justice Whelpley, in Telfer v. Railroad Co., said that "it would seem that this would have been the proper rule of damages if it had not been prescribed by the act,"—citing Ford v. Monroe, 20 Wend. 210; Pack v. City of New York, 3 N. Y. 489. The rule as to damages established in Telfer v. Railroad Co., supra, has ever since been followed and applied, both in this court and the court of errors and appeals. Paulmier v. Railroad Co., 34 N. J. Law, 151; Demarest v. Little, 47 N. J. Law, 28; Kinney v. Railroad Co., 34 N. J. Law, 274; Traction Co. v. Hone, 60 N. J. Law, 444, 38 Atl. 759, and cases cited. In view of the range of discussion taken in this class of cases, it is worthy of remark that if there exists a mischief in this principle, so well established as the measure of damages, the remedy must be sought by legislation upon the subject. The courts are not at liberty to apply any other rule than...