Rockford v. Delaney

• Decision Date: 30 June 1876
• Parties: ROCKFORD, ROCK ISLAND AND ST. LOUIS R. R. CO.v.JOHN DELANEY, Admr. etc.
• Court: Illinois Supreme Court

82 Ill. 198

1876 WL 10170 (Ill.)

25 Am.Rep. 308

ROCKFORD, ROCK ISLAND AND ST. LOUIS R. R. CO.

v.JOHN DELANEY, Admr. etc.

Supreme Court of Illinois.

June Term, 1876.

APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

Mr. B. C. COOK, for the appellant.

Mr. WILLIAM G. KASE, and Mr. WILLIAM H. BENNETT, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The plaintiff's intestate, a lad of nine years of age, was killed at a street crossing in East St. Louis, by a train of cars. On the trial in the court below, controversy existed whether the train by which the intestate was killed was, at the time, under the control of appellant or of that of The St. Louis and Indianapolis Railroad Company, which was impleaded with appellant; but, since the finding of the jury on this point was not pressed in argument as ground of reversal, it will be unnecessary to refer to the evidence bearing upon it.

The court, at the instance of the plaintiff, instructed the jury, “that, as to the question of damages, they should take into consideration the value of the services of the deceased, from the time of his death until he would have been twenty-one years of age, deducting therefrom what it would be worth to feed and clothe him during that time, as proved.”

The objection taken to the instruction, by appellant, is, that it does not lay down the correct measure of damages, because the damages contemplated by the statute under which the suit is brought, are the pecuniary loss which results to the next of kin, for the reason that they are next of kin to the intestate, and not the damages which result to the father from the loss of the services of his son.

We can not regard this as an open question. In The City of Chicago v. Scholten, 75 Ill. 468, we said: “Where the next of kin are collateral kindred of the deceased, and have not received pecuniary aid from him, proof of such relationship would warrant a recovery of nominal damages only; but where the deceased is a minor, and leaves a father entitled to his services, the law presumes there has been a pecuniary loss, for which compensation under the statute may be given. In such cases, the pecuniary loss may be estimated from the facts proven, in connection with the knowledge and experience possessed by all persons in relation to matters of common observation. No doubt the damages could be greatly enhanced by proof of the personal characteristics of the deceased. Evidence of his mental and physical capacity to be of service to his father in his business, his habits of industry and sobriety, where the deceased is old enough to have established a character, are all elements to be considered in assessing the pecuniary loss sustained.”

And in Conant et al. v. Griffin, Admr. etc. 48 Ill. 410, it

was held that the question of who, as between several persons claiming to be next of kin, is so in fact, and, therefore, entitled to the benefit of the judgment, when recovered, is to be settled by the court of probate; and it follows, that court must also determine the amount to which each of the next of kin, when ascertained, is entitled.

There was evidence tending to show negligence on...