The Louisville, New Albany And Chicago Railway Company v. Wright

• Decision Date: 22 May 1893
• Docket Number: 16,276
• Citation: 34 N.E. 314,134 Ind. 509
• Parties: The Louisville, New Albany and Chicago Railway Company v. Wright, Administrator
• Court: Indiana Supreme Court

34 N.E. 314

134 Ind. 509

The Louisville, New Albany and Chicago Railway Company v. Wright, Administrator

No. 16,276

Supreme Court of Indiana

May 22, 1893

From the Orange Circuit Court.

Judgment reversed, with directions to the circuit court to sustain the appellant's motion for a new trial.

E. C Field, W. S. Kinnan and C. C. Matson, for appellant.

J. A Zaring, M. B. Hottell, S. Mitchell and R. B. Mitchell, for appellee.

OPINION

Coffey, J.

In the year 1890 the appellant owned and operated a railroad from Chicago, Illinois, to Louisville, Kentucky, running through Lawrence county, Indiana. It carried the United States mail and had one or more mail cars in its passenger trains, which were used for that business.

The deceased, Charles G. Wright, was an agent of the government in handling and distributing mail on one of its trains, and on the 14th day of February, 1890, while he was engaged on one of the cars provided for said business on the appellant's road, there was a collision of his train with another train on the road near Mitchell, in Lawrence county, Indiana, in which he was bruised and wounded so that he died on the day following. He was twenty-six years of age at the time of his death, was unmarried, and left surviving him a father and a mother as his only heirs at law. He was a man of good habits and in good health, and was at the time drawing a salary of seventy-five dollars per month as such mail agent. He lived at home until he was twenty-one years of age, and taught school. Afterwards he spent the time not occupied in business at his father's home, and called it his home. He was a dutiful son and always kind to his parents. The collision was the result of negligence on the part of the trainmen, and without fault on the part of the deceased.

The appellant concedes its liability, but there is a controversy between it and the appellee as to the measure of damages. Upon this subject, the circuit court instructed the jury as follows:

"5th. In case you conclude to find for the plaintiff, it will be necessary to determine the amount of damages to be assessed in plaintiff's favor; if you find a verdict favorable to him, you should be governed by ordinary human knowledge and experience as to the age of the plaintiff's intestate during which he would likely or probably remain capable of labor or of doing business, considering the evidence concerning his health, his habits as to industry and other personal characteristics, merits or demerits, and assess a sum of money equal to the amount plaintiff's decedent would most probably have earned, as shown by the evidence, not to exceed the amount claimed in the complaint, during the period of his life in which he would have probably earned money, deducting therefrom the reasonable and probable cost of his own support and personal outlay, and making a fair deduction for present payment of such sum."

"7th. I instruct you that if you find for the plaintiff, you can not increase the damages in any sum whatever on account of the physical or mental sufferings of the deceased, Charles G. Wright, and can not allow any sum whatever on account of the grief or loss of the society of the plaintiff or any member of the family of the said Charles G. Wright, but the damages assessed must be from a pecuniary standpoint only."

Section 266, R. S. 1881, provides that "A father (or in case of his death, or desertion of his family, or imprisonment, the mother) may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward. But when the action is brought by the guardian for an injury to his ward, the damages shall inure to the benefit of his ward."

Section 284 provides that "When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission. * * * The damages can not exceed ten thousand dollars, and must enure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased."

The measure of damages, on account of the death of a child, in an action by the parent under...