Rhoads v. Chicago & A.R. Co.

• Citation: 227 Ill. 328,81 N.E. 371
• Court: Supreme Court of Illinois
• Decision Date: 06 June 1907
• Parties: RHOADS et al. v. CHICAGO & A. R. CO.

227 Ill. 328

81 N.E. 371

RHOADS et al.

v.CHICAGO & A. R. CO.

Supreme Court of Illinois.

April 18, 1907.

Rehearing Denied June 6, 1907.

Appeal from Appellate Court, Third District.

Action by Lewis T. Rhoads and others against the Chicago & Alton Railroad Company. From a judgment of the Appellate Court for the Third District affirming a judgment of the circuit court, plaintiffs appeal. Affirmed.Beach, Hodnett & Trapp, for appellants.

Blinn & Covey (F. S. Winston, of counsel), for appellee.

Appellants, as administrators of the estate of A. J. Barr, brought an action in the circuit court of Logan county to recover damages for the death of their intestate, alleging that it was caused by the negligence and recklessness of appellee. The railroad of appellee extends from Chicago to East St. Louis, passing through McLean county in a southwesterly direction, through the city of Bloomington and town of Normal. Near the northern limits of Normal a public highway crosses the railroad, at which point there are seven tracks lying parallel, five of which are used for switching purposes in a freight yard. These tracks at this point are upon an embankment about 17 feet above the surrounding country. The two westerly tracks are the main tracks used for passenger traffic, and are some two feet below the five easterly tracks. On the 19th day of June, 1905, the five easterly tracks were occupied at the point in question by freight cars, leaving at the crossing an opening which was irregular in width, but which left the 16-foot planking of the roadway crossing free from freight cars. On the afternoon of that day the deceased was going from Bloomington to a neighboring village in an automobile, accompanied by his stenographer, to attend to some legal work for a client. As he approached the said crossing from the east, there is evidence tending to show that he stopped his automobile at the foot of the incline at the track to look and listen for approaching trains. Apparently he heard or saw nothing, as he started his automobile, crossing the freight tracks at the rate of eight or nine miles an hour. His automobile having run rapidly down the incline between the freight tracks, and while crossing the main lines, was struck by the engine of an interurban passenger train of appellee running south at from 30 to 35 miles an hour. Both the intestate and his stenographer were hurled about 90 feet and instantly killed. The proof tends to show that the engine of the appellee was sounding a bell for some time before it reached the crossing, and that the whistle was blown a little distance before reaching that place.

The evidence shows that the deceased was a lawyer practicing in Bloomington, 48 years old, and that he had a brother and three sisters, all adults; that he was unmarried and had no children and his father and mother were not living. The evidence shows that he was a careful, skillful practitioner, sober and industrious, and tends to show that he had an earning capacity of something like $10,000 a year. We can find no evidence in the record that he had saved or accumulated any property or as to what his personal expenses were. No proof was offered that the brother or sisters were dependent upon him for support, or that he had rendered them, or they had relied upon him for, pecuniary assistance, except legal advice. The only proof on this point was the testimony of the brotherin-law, the husband of one of his sisters, who testified that, ‘so far as the sisters were concerned, if there was any business to do, they would ask him, of course. So far as the brother was concerned, supposed he did the same. He never made any charge against any of us for this character of work. * * * I know that his sisters did consult him as a lawyer. I know that one of them, Mrs. McKeown, had business in his hands now.’ The court was asked, but refused to give, for plaintiffs in error, instructions substantially as follows; all being predicated upon the condition if the jury find defendant guilty of negligence as charged: ‘(1) That they might take into consideration the fact, if they so find, that the deceased gave legal work and services to his brother and sisters, and that by his death they were deprived of such work and services; (2) that the amount of damages is what the law regards as the pecuniary value of the addition to the estate of deceased as he in reasonable probability would have made if not so killed, taking into consideration his capacity, habits, usual earning prospects, and saving ability; (3) that the jury had a right, in assessing damages, to take into consideration all of the testimony bearing on the question of pecuniary damages, and all such damages as they might find, from the evidence, to be a fair and just compensation with reference to the pecuniary injuries resulting from the death of the deceased to his next of kin.’The court gave for defendant in error instructions substantially as follows; each being predicated upon the condition if the jury find for the plaintiff: ‘(6) In a suit like the one pending, the law does not allow damages for grief caused to the relatives of the deceased by his being accidentally killed, but only for pecuniary loss sustained, and where the nearest relatives are a brother and sisters, as here, the law does not presume damage to them, but damages must be proven. In the absence of such proof you can only assess nominal damages, by which term is meant one dollar or one cent. (7) Before you can allow more than nominal damages, it must appear from the evidence that the brother and sisters of the deceased, jointly or separately, were in the habit of claiming or receiving from him pecuniary assistance or were in some way dependent upon him for financial aid. (8) You are instructed that there has been no proof offered that either of the relatives of deceased were in the habit of claiming or receiving from him pecuniary assistance or were dependent upon him for pecuniary aid, and you can only assess nominal damages.’ The giving and refusal of these instructions is urged as error. Under the instructions given, the jury brought in a verdict of nominal damages of one dollar, and judgment was entered thereon. The case was appealed to the Appellate Court for the Third District, where the judgment was affirmed, and the case is brought here for review upon a certificate of importance granted by that court.

CARTER, J. (after stating the facts).

The sole question urged on this appeal is the giving and refusal of the instruction referred to in the statement. Appellants contend that it is not the law of this state that, where the next of kin are collateral kindred of the deceased and have received no pecuniary aid from him, they can only recover nominal damages for his death, and that this court has never so held. The law upon which this action is based was passed by the Legislature in substantially its present form in 1853. Hurd's Rev. St. 1905, p. 1152, c. 70. As our statute is a copy of the New York statute of like import, it is urged that the construction placed upon it by the New York courts is authoritative and binding. This contention would have much force if the statute had been construed by the courts of last resort in that state before it was enacted here, but such was not the fact. The earliest decision cited by appellants construing the statutes as contended for by them was made in 187...