Pennsylvania Railroad Company v. McCloskey's Administrator

• Decision Date: 01 September 1854
• Citation: 23 Pa. 526
• Parties: Pennsylvania Railroad Company versus McCloskey's Administrator.
• Court: Pennsylvania Supreme Court

Page 526

23 Pa. 526

Pennsylvania Railroad Company versus McCloskey's Administrator.

Supreme Court of Pennsylvania, Western District.

ERROR to the District Court of Allegheny county.

J. H. Hampton and Stokes, for plaintiff in error.—Carriers may limit the extent of their common law liability by contract or by

notice: 4 Harris 68; 5 Rawle 189; 6 W. & Ser. 500; 8 Barr 484; Angell on Carriers, § 247; 4 Bing. 218; 2 Stark. 53; 19 Wend. 251, 234; 9 Watts 87; 8 W. & Ser. 373; 11 Eng. L. & E. 506; 7 Id. 395. A corporation may make such regulations as are proper for the conduct of its business: Angell on Corp. § 325; 1 L. Raym. 496; 2 Jones 321.

The Act of 15th April, 1851, s. 19, on which this action is founded, was not intended to punish for negligence. The Act of 1st April, 1836, s. 1, makes gross negligence punishable. Compensation alone can be claimed in this case — compensation to the party suing, for the damage which he, or those whose pecuniary interests he represents, have sustained. No person has suffered any pecuniary damage: 10 Eng. L. & E. 437. The learned judge has furnished the jury with no measure of damages. He has left the amount entirely to their discretion.

Shaler and Stanton, for defendant in error.—No limitation of responsibility can excuse gross negligence: Doct. and Student 224; Angell on Carriers, § 267, 268, 275; 4 Scott 509; 4 Harris 77; 19 Wend. 251; 31 Maine 228; 2 Richardson 286. The law allows the plaintiff to recover "damages for the death." On a very similar British statute, 9 & 10 Vict. c. 93, the jury were instructed very much as in this case: 10 Eng. E. & L. 437; 11 Jurist 758.

The opinion of the Court was delivered by LOWRIE, J.

The learned judge of the Court below allowed the jury to find the damages according to the value of the life lost, and suggested that, in estimating them, they might compute them by the probable accumulations of a man of such age, habits, health, and pursuits, as the deceased, during what would probably have been his lifetime; and then added: "I think this would be a fair measure of damages in this case; but if the jury can find a better rule than the one suggested, they are at liberty to adopt it."

To this it is objected, that it gives to the representatives of the deceased more than compensation; that is, more damages than they have suffered by the death, and that this judgment acquires a punitive character, which, it is said, could not have been intended, since the law has manifested its punitive will in a different form, by providing for the punishment of the really guilty persons, the servants of the company, in the Act of 1st April, 1836.

The latter part of this argument is answered by saying that there are many cases in which vindictive damages are given, though the act is also subject to punishment; and this is a denial of the unexpressed premises of the argument, and therefore the conclusion is left without support, and we are saved the necessity of showing that it is a mere assumption to call such damages punitive.

The main purpose of the argument, however, is to show that the representatives appointed by the law in such a case, are entitled to no more damages than they have individually sustained, and it requires a more extended consideration.

Heretofore no action has been allowed among us for the death of a freeman, and the novelty of the case contributes to the difficulty of determining it, and warns us to proceed with appropriate caution. But strange as the case is in our jurisprudence, we are not without analogies here and elsewhere which may furnish us some light.

The principle that requires compensation for the death of a freeman, is not at all new in history. It was long an institution among our Anglo-Saxon ancestors; and perhaps it was never positively abolished, but rather died out under the influence of the Norman conquest, and the centralizing powers of the king's Courts, which treated all such wrongs as wrongs done to the king — and hence as criminal offences. It seems to have been an institution common to all Germanic nations, and perhaps to every people that rose one degree above the savage life, and were still striving to rise. With them it was intended as a compensation to surviving kindred, and as a means of preventing the disorders that follow in the train of private revenge.

There are indications of its existence among the Romans (Dig. 9, 2, 7, 4, also 9, 2, 9, and 31), though Pasquier (Inst. de Just. 4, 3) expresses doubts about it. Voet (Pandects 9, 2, 11) and Pacius (Analysis Institutionum 4, 3, 1) refer to it as existing there, and also in Holland, the Netherlands, and perhaps in some other parts of modern Europe, and we have evidence of its existence in Scotland: Erskine's Inst. 592, n. 13; Bell's Principles of Law 749; 10 Eng. L. & Eq. R. 437. As it existed among the Romans, the damages recovered by the kindred were not by way of hereditary succession; for damages for wrongs done to the body of a freeman were not allowed to pass in that way: Dig. 9, 3, 5, 5; Pothier's Pand. 9, 3, 12.

A recent English statute, 9 and 10 Vict. c. 93, seems to have revived the principle of the old Saxon law, and to allow the relations of the deceased to recover damages to be apportioned among them according to the injury resulting to them respectively. In form therefore the action is for their own loss, and not a survival of the right of action for the injury to the deceased. Yet the English Courts have not known how to estimate the damages, except according to the value of the life lost: 10 Eng. L. & Eq. Rep. 437; Armsworth v. S. E. Railway Co., 11 Jurist 758; 6 Harr. Dig. 273; and this statute seems to leave other injuries to the person just as they were before, and consequently, a death from another cause, before compensation recovered, is not provided for.

But it is asked, how can one that is dead be compensated by a civil procedure, for injuries done to him in his life, and especially for the loss of his life? This directs us to another aspect of the present claim that is not as new as the one already noticed.

In the early stages of our law all rights of action for wrongs done, not breaches of contract, died with the injured person. This, however, was altered by statute 4 Ed. 3, c. 7, and this alteration has been very largely extended by construction; and by our statute, 24th February, 1834, s. 28, nothing was excepted but slander, libel, and wrongs to the person. Many of the cases, thus declared to survive, involve questions of compensation, and exemplary damages for wrong and insult, fraud and malice, which are to be decided upon, and executed after the injured party is beyond the reach of civil compensation, and yet the injury is measured just as if he were still living.

There are abundant...