Pierce v. Conners

• Decision Date: 18 June 1894
• Citation: 37 P. 721,20 Colo. 178
• Parties: PIERCE v. CONNERS. [1]
• Court: Colorado Supreme Court

37 P. 721

20 Colo. 178

PIERCE v. CONNERS. ^[1]

Supreme Court of Colorado

June 18, 1894

Appeal from district court, Lake county.

Action by Timothy Conners against F. M. Pierce. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.

A. S. Weston, for appellant.

A. S Blake and A. J. Sterling, for appellee.

ELLIOTT J.

The overruling of the general demurrer to the complaint is assigned for error.

1. Among other things, the complaint states, in substance, that defendant, Pierce, owned and kept a team of horses; that the horses were fiery and fractious; that while they were in charge of a driver employed by defendant for the purpose of delivering lumber to his customers, and engaged in that business, the driver left them standing by the roadside without being hitched or secured in any way, and without any person to hold or take care of them; and that, while they were thus left unhitched and uncared for, they ran away. The complaint further shows that Mary Ellen Conners, daughter of plaintiff, a child about seven years old, was on the street at the time defendant's team ran away; that she was upon the path usually traveled by people going afoot along said street, and was not in that part of the road used by wagons and carriages; that while on said path, and out of the way of teams passing along the road, defendant's team, running away as aforesaid, came along the road, and, coming near another team hauling a heavily-loaded ore wagon, made a bound off the road, and up on the bank or path where the child was and struck her, and thereby knocked her down into the road where she was struck and crushed by the wheel of the ore wagon, and thereby injured so that from the injuries thus received she died a few days thereafter. It is unnecessary to state further, in detail, the averments of the complaint. The facts alleged were sufficient, in substance, to constitute a cause of action, and the demurrer was properly overruled.

2. The evidence sustained plaintiff's cause, in substance, as alleged. The horses were a spirited, high-lifed team. It was negligence to leave them, unhitched and uncared for, by the side of the public highway. This act of negligence was committed by the servant while intrusted with his master's team, and employed in and about his master's business. It was an act within the scope of his employment, and hence the master was responsible for the negligence. So, too, leaving the horses unhitched and uncared for, whereby they ran away, and drove or knocked the child under the wheel of the ore wagon, was the proximate cause of the injury. The fact that the injury was inflicted by the ore wagon does not relieve the party responsible for the original act of negligence. The evidence does not disclose any negligence on the part of the driver of the ore wagon. Neither does the fact that the Hannen boy took hold of the lines of defendant's team, and so caused them to start and run away, relieve the party liable for the original act of negligence. The age of the boy has not been disclosed on this appeal. The father, in testifying, spoke of the boy as a 'kid.' The driver should have so secured the horses that a mere child could not have thus caused them to run away.

3. Nothing in the evidence tends to show that the Conners child was guilty of contributory negligence. She was upon the usually traveled footpath by the side of the public highway in a rural neighborhood. She was where she had a right to be, and the evidence does not show that she did anything amiss. It is true, an adult person might have escaped, but the law does not exact the same degree of care and diligence from a child of tender years that it does from an adult person, of presumed better judgment and discretion. All the facts of the case are practically undisputed, and the law applicable thereto is purely elementary. Shear. & R. Neg. § 10; 2 Thomp. Neg. 1140.

4. The trial court did not err in admitting evidence of the value of the services of a girl like the deceased from the age of 7 years to the age of 18, though the law does not necessarily limit the recovery to the value of such services. The act of 1877 (Gen. Laws, p. 343), under which this action was brought, fixes the maximum limit of recovery in cases of this kind at $5,000; and the damages allowable under section 3 are compensatory, not exemplary or punitive. This subject was much considered in Moffatt v. Tenney, 17 Colo. 189, 30 P. 384, and again in Hayes v. Williams, 17 Colo. 468, 30 P. 352. In each of the foregoing cases the action was by the wife for damages resulting to her from the death of her husband. But in Railroad Co. v. Wilson, 12 Colo. 20, 20 P. 340, the action was by the father and mother for damages resulting to them from the death of their son, a young man 25 years of age, and unmarried, and it was said the parents were entitled to recover 'their pecuniary loss' resulting from the death of their son. See, also, Orman v. Mannix, 17 Colo. 564, 30 P. 1037.

5. The true measure of compensatory relief in an action of this kind, under the act of 1877, supra, is a sum equal to the net pecuniary benefit which plaintiff might reasonably have expected to receive from the deceased in case his life had not been terminated by the wrongful act, neglect, or default of the defendant. Such sum will depend on a variety of circumstances and future contingencies, and will therefore be difficult of exact ascertainment; but the damages to be awarded in each case may be approximated by considering the age, health, condition in life, habits of industry or otherwise, ability to earn money, on the part of the deceased, including his or her disposition to aid or assist the plaintiff. Not only the kinship or legal relation between the deceased and the plaintiff, but the actual relations between them, as manifested by acts of pecuniary assistance rendered by the deceased to the plaintiff, and also contrary acts, may be taken into consideration. But it must be borne in mind that the recovery allowable is in no sense a solatium for the grief of the living, occasioned by the death of the relative or friend, however dear. It is only for the pecuniary loss resulting to the living party entitled to sue resulting from the death of the deceased, that the statute affords compensation. This may seem cold and mercenary, but it is unquestionably the law. From a careful consideration of the rulings of the court at the trial, and the instructions to the jury, no substantial error appears. The...