17 Ill. App. 213 | Ill. App. Ct. | 1885
There being evidence tending to show that the death of the plaintiff’s intestate ivas caused by the negligence of Andrew B. Honey in piling the lumber which fell upon and killed him, the question arose whether in that particular matter he was acting independently or as the servant of defendant Andrews. The evidence showed that he was employed and paid to do that work by Andrews, but it ivas insisted by the latter, and the evidence also showed that Honey’s relation to him in the matter was that of an independent contractor, and not. that of a servant. Upon this question the court gave to the jury an instruction at the instance of defendant Douglas, holding, in effect, that if Honey was employed and paid by Andrews to do the work, that alone constituted him a servant of Andrews.
The question in a case of this character, whether the relation be that of master and servant, so as to invoke an application of the rule of respondent superiores, to be determined mainly by ascertaining from the contract of employment whether the employer retainsjhe power of directing and controlling the work, or has given it to the contractor. If the employer retains no control over the details of the work, but contracts in such manner that the other party is to do it according to his own ideas and without being subject to the control of his employer in respect to the manner of doing, it, the party undertaking to do the work is a contractor and not a servant. This rule is abundantly supported by the numerous authorities cited by the counsel for the appellant, and has received elaborate consideration by us in the recent case of Chicago City Ry. Co. v. Hennessey, 16 Bradwell, 153; it is therefore unnecessary for us to discuss it further.
The fact that Andrews employed and paid Honey to pile the lumber, was not- the test by which to determine whether the relation of master and servant existed, so as to render Andrews liable for the negligence of Honey. The instruction, then, was clearly erroneous.
We think that the damages awarded by the jury were excessive. The evidence shows that the deceased, at the time of his death, was about nineteen years and eight months old ; that he was a mechanic, and was earning $1.75 per day, and was in prospect of having his wages advanced to $2.00 per day; that he left surviving him his mother and six brothers and sisters, of whom three were older and three younger than himself; that up to the time of his death he was in the habit of giving all his wages to his mother. This in substance was all the evidence bearing on the question of damages.
The damages awarded were $5,000. This is a sum which, if kept properly invested, would produce a perpetual income equal at least to the entire wages the deceased would be likely to be able to earn, after his necessary personal expenses should be deducted. While there is no fixed or exact measure of damages in cases of this character, and much must be left to the sound discretion of the jury, yet in this as in all other matters, this finding of the jury must be based upon the evidence. They may assess such damages as will be a just and fair compensation for the pecuniary loss suffered by the next of kin from the death of the deceased, and on doing so, they may take- into consideration every reasonable expectation the survivors may have had of pecuniary benefit or advantage from the continuance of his life.
Until the deceased attained his majority, his mother would of course have been entitled, if he had lived, to his earnings, and would have been liable for his support. On his reaching his majority, that right would have ceased and from that time-on, the pecuniary loss of the next of kin must he measured largely by such pecuniary benefits as duty, affection or gratitude would probably have moved him to bestow. But there is certainly no basis in the evidence for supposing that such benefits would extend to the entire net income of the deceased during his entire life, and to the leaving behind him for their benefit of a legacy of the principal sum of $5,000.
For the reasons above given, the judgment will be reversed and the cause remanded.
Judgment reversed.
