Southern Indiana Ry. Co. v. Moore

• Decision Date: 29 November 1904
• Docket Number: No. 4,753.,4,753.
• Citation: 72 N.E. 479,34 Ind.App. 154
• Parties: SOUTHERN INDIANA RY. CO. v. MOORE.
• Court: Indiana Appellate Court

34 Ind.App. 154

72 N.E. 479

SOUTHERN INDIANA RY. CO.

v.MOORE.

No. 4,753.

Appellate Court of Indiana, Division No. 2.

Nov. 29, 1904.

Appeal from Circuit Court, Lawrence County; James B. Wilson, Judge.

Action by Mary Moore against the Southern Indiana Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

For former opinion, see 71 N. E. 516.

F. M. Trissal and Brooks & Brooks, for appellant. East & East and McHenry Owen, for appellee.

COMSTOCK, C. J.

This is the second appeal. The first one resulted in the reversal of the judgment obtained by appellee. Southern Indiana R. Co. v. Moore, 29 Ind. App. 52, 63 N. E. 863. Upon a second trial appellee had a verdict for $825, and judgment for $417, which reduction in amount is acquiesced in by both parties. The complaint was not amended or changed. It is in two paragraphs, to each of which a demurrer for want of facts was overruled. These rulings, with the refusal to sustain its motion for a new trial, form the basis of the errors assigned.

The objection to the complaint is that it appears therefrom that the negligence relied upon is the negligence of a fellow servant. When the case was here before, one assignment of error was that the court erred in overruling the demurrer to the complaint. The point was waived by failure to include it in the statement of errors relied upon or to discuss it. We do not, therefore, need to examine the question at this time, but the averments are that the negligence was that of the appellant's superintendent, “having full charge and control of the defendant's work in and about said quarry.”

The jury were told, through instructions Nos. 6 and 7, that the servant did not assume risks not discoverable by the exercise of ordinary observation on his part, and that he might properly obey the order of the master to work in a certain place, unless the danger thereby incurred was so open and apparent that a prudent person would not encounter it. The criticism is that the element of actual knowledge by the servant was omitted, and that, as the instructions were given, if the danger was not apparent the servant was not chargeable with its assumption, although he did in fact know all about it. The sixth instruction began as follows: “It is a rule of law that the servant cannot recover for an injury resulting from a danger open and known to both the master and servant alike, or when the opportunity to know of the danger is equal to both master and servant.” It is then stated that the rule is applicable to injuries received by reason of dangers which could only be discovered by a close inspection, etc. The seventh contains no reference to actual knowledge. The intention probably was to say that known dangers and those equally open to the observation of master and servant were assumed. The instructions are, however, deficient in the respect indicated. The element of actual knowledge was essential to a full statement of the law on the subject. We cannot say from the record, beyond doubt, that appellant was not prejudiced by the omission.

The action was brought by the mother, on account of the death of her infant son, under section 267, Burns' Ann. St. 1901 (section 266, Horner's Ann. St. 1901).

The measure of damages is correctly stated by the attorneys for appellant as follows: “The value of the child's services until he would have attained his majority, taken in connection with his prospects in life, less his support and maintenance,” etc. In an action by a parent for the death of his child, he is entitled to recover only for the pecuniary injury he sustained, and the proper measure of damages is the value of the child's services from the time of the injury until he would have attained his majority, taken in connection with his prospects in life, less his support and maintenance. To this may be added, in proper cases, the expenses of care and attention to the child made necessary by the injury, funeral expenses, and medical services. Pennsylvania Co. v. Lilly, 73 Ind. 252;Louisville, etc., R. Co. v. Wright, 134 Ind. 509-512, 34 N. E. 314. The service referred to is not limited to the amount which may be earned by the child, working for wages, but embraces the services that he may be shown to render; the value thereof being in all cases for the jury. Cleveland, etc.,...