I
The plaintiff, John J. Bagley, is the administrator of Bernard Gleason, who died intestate at the age of fifty-one years, and was survived by his mother and four half brothers and sisters, the mother dying before the trial of the suit.
On the day of the injury, January 7, 1909, about one o’clock, Gleason, accompanied by one Lynch, left John J. Bagley’s place for the Hamilton Brown Shoe Company. They were driving Bagley’s team and were to get a load of empty shoe boxes and return with them to Bagley’s. On the return trip they stopped on several occasions, at which times, the .-evidence tends to show, they hаd drinks of intoxicating liquor. About seven o’clock that evening Lynch left the wagon and Gleason drove on alone.
Gleаson was next seen about nine o ’clock that evening driving north on Union Avenue, by one Mrs. Bragg, who lived at 3019 Union Avenue. When the wagon got opposite her house she saw it suddenly upset and fall into a large ditch on the side of the street, killing the intestate.
At the place of the injury there was a gully or depression in Union Avenue, which was in an unimproved condition. Car traсks ran down the center of the street, both sides of which were for the use of vehicles. There was no pavement at this part of Union Avenue, which is a dirt street, lighted in the usupl manner in outlying districts of the city.
There was testimony tending to show that Gleasоn had frequently passed over this part of Union Avenue
At the time of his death Gleason, as far as it is shown,' had no property of any kind, either rеal or personal. .His earning capacity was anywhere from one to two dollars per day, and he had no stеady employment.
The case was tried in the circuit court of the city of St. Louis, before a jury, which found in favor of the plaintiff in the sum of fifteen hundred dollars, from which an appeal was duly taken to this court.
In this case the deceased left a mother who died after the bringing of the suit but beforе the trial, which is now prosecuted for his half brothers and sisters. The statute provides for the inclusion of plaintiff and proper distribution of any recovery in cases like the present. [R. S. 1909, sec. 5425.].
The first contention of appellant is that since the statute on which the action is founded is purely compensatory, there was no proof of injury to the beneficiaries to sustain a judgment of fifteen hundred dollars.
The jury were instructed, in case they found for the plaintiff, to give only such damages as were “fair and just with reference to the necessary injury” to the beneficiaries. There being no elements of aggravation
There was nothing in the evidence which tended to show that any of the beneficiaries received any pecuniary assistance from the deсeased during his life; hence all they were deprived of was a probability of a share of the estate left by him at his dеath, and under the facts in this record the probable amount of such accumulation was. the only matter left to the jury to consider. To arrive at an intelligent verdict, they should have calculated his probable earnings for his expectancy of life, considering his age, ability and qualifications to labor, and general habits, and should have deducted therеfrom what would have been probably used and diverted by him to his personal expense and cost of living, and should have ascertained the present value of the residue. [2 Sedgwick on Damages (9 Ed.), secs. 574a, 579; Tiffany, Death by Wrongful Act (2 Ed.), see. 159.] In forming their estimate the jury should have left out of view any loss of heritable rights on the part of the mother, since these abated by her death before the judgment (Gilkeson v. Railroad,
The evidence of the earning power of the deceased is lacking in certainty and distinctness. He was not a skillful workman and seems only to have been qualified for manual work as a teamster, with an earning capacity of not over two dollars per day, nor was he addicted to habits of saving. Considеring these circumstances, together with those relating to his age, life expectancy and living expenses and his self-indulgеnce in the matter of drinking, it must have taxed the optimistic view which juries are prone to take to conjecture that the present value of the residue which the beneficiaries
The trial judge should have directed a verdict for plaintiff for nominal damages, only, under the facts shown in this record. There was a total failure of proof of any other damages. In such cases it is our duty to reverse and rеmand the c§use to the end that a proper judgment may be entered therein.
The judgment is, accordingly, reversed and the cause remanded.