71 Md. 86 | Md. | 1889
delivered the opinion of the Court.
This suit was brought under the Negligence law, by a father to recover damages for the death of his minor son, .caused, as it is alleged, by the negligence of the defendant. Many actions have been brought under this statute, and they seem to be daily increasing in number. The
We gather from the record, that in October, 1888, the defendant hold a fair in its grounds at Hagerstown. Among the exhibitions offered for the amusement of visitors were balloon ascensions and trapeze performances in the air. The preparations for these were in a circular enclosure in a part of the fair grounds, and several large poles were planted by which the balloons could be stayed and held while they were in process of inflation and made ready to be sent up. One of these poles, which it is alleged was insecurely fixed in the ground, fell upon the hoy and killed him. He had a ticket as keeper of stock, which admitted him to the fair grounds free of charge, but with all the privileges of an ordinary visitor.
There was the usual conflict of testimony as to negligence on the part of the defendant, and as to contributory negligence on the part of the deceased. But on this part of the case little need be said. We find no error warranting a reversal, in the instructions on these subjects given to the jury by the learned -Judge before whom the case was tried, in-granting the plaintiff’s third and fifth prayers, and the defendant’s third, fourth, eighth, ninth and tenth prayers. The defendant’s fifth, sixth, and seventh prayers on the same subject were properly rejected, because those granted fully covered the law as to this branch of the ease. The multiplication of prayers substantially the same on subjects about which the law has been thoroughly well settled is a practice much to he deprecated.
But the question most earnestly argued arises upon the rulings as to the measure of damages. The Judge was clearly right in instructing the jury that in estimat
There is conflict of authority on this subject in other States. Pennsylvania Railroad Company vs. Lebe, 33 Penn. State Rep., 330; Caldwell vs. Brown, 53 Pa., 453; Birkett vs. Knickerbocker Ice Co., 110 N. Y., 504. But so far as this State is concerned Ave think the question has been settled. It first arose in the case of State, use of Coughlan vs. Balto. & Ohio R. R. Co., 24 Md., 84 ; which Avas decided in 1865, and is among the first, if not the first case, in which this statute was construed, it having been passed in 1852. In that case the boy killed wasbetAveen ten and twelve years of age. He had no father liAÚng, and the suit was brought by his AvidoAved mother, Avho had a large family, and kept a small grocery store. He
Such is the meaning and effect of this decision. It is a leading one in our State and has. been repeatedly followed. In Cumb. &Penn. R. R. Co. vs. State, use of Moran, 44 Md., 283, the boy killed was old enough to be a fireman on a locomotive engine, and an instruction containing the same restriction met the approval of this Court. In Balto. & Potomac R. R. Co. vs. State, use of Stansbury, 54 Md., 648, the boy was twelve years old, and a like instruction was granted. So in Albert vs. State, use of Ryan, 66 Md., 325, where a minor son sued for the death of his father, his right to prospective damages was limited to his attaining his majority. In fact Coughlan’s Case has in this State been universally recognized as having settled the law on this subject.
Nor has it been overruled or shaken by anything said or decided in Balto. & Ohio R. R. Co. vs. State, use of Hauer, et al., 60 Md., 449. On the contrary, it is there cited with approval and carefully distinguished from the case then under consideration. Our statute, unlike those of some of the States which give the action for the benefit of the next of kin generally, closely follows Lord
In the present case the father testified that he had emancipated his son íavo years before he was killed; that he was working for himself and had voluntarily given each year to Avitness since his emancipation $75 or $80 of his wages; that he Avas a farm hand and earned from $110 to $120 a year, and Avas living Avith Avitness, except when at labor. But the only effect of this emancipation as it is called, Avas to protect, so long as it continued, the employer in paying his wages to the minor himself. The father could revoke the privilege at any time he chose, and collect and receive his entire Avages.
Again, in answer to the direct question, “Did you have any reasonable expectation that he Avould do this” (that' is give you $75 or $80 a year) “after he became of age?)' The father testified that “the deceased had said that after he got of age he would help to fix up the property, and that he never said any thing about getting married',” and the Court, against the objection of the defendant, allowed” this testimony to go to the jury. But a vague declaration or promise- like this, made by a minor, has no probative force whatever, and, in our opinion, this evidence is altogether too slight and insufficient to enable a jury to find from it a ground for the reasonable expectation .which the laAv requires. Nor do we find any evidence in
We have considered the case very carefully, and it follows from what we have said that, while there is no error justifying a reversal in the other rulings of the Court, there is error in the modification made hy the Courtffo the defendant's eleventh prayer, in rejecting its twelfth prayer, in granting the plaintiff's first and fourth prayers, and in the ruling relating to the admissibility of evidence contained in the second exception, and for these errors the judgment must he reversed, and a new trial awarded.
Judgment reversed, and, new trial award,cd.