146 Mich. 568 | Mich. | 1906
Plaintiff’s son, aged seven years and one month, was killed by one of the cars of defendant. The father brought this action to recover damages under the provisions of section 10427, 3 Comp. Laws. He recovered a judgment in the sum of $1,500. A motion for a new trial was made, which motion was overruled. The case is brought here by writ of error.
In giving his reasons for overruling the motion, the judge stated the questions involved so clearly that we quote therefrom:
“ The grounds on which the motion is founded may be considered under three heads:
“ (1) Errors in charge as to the contributory negligence of the deceased boy.
“ (2) Error in charge as to measure of damages.
“(3) Excessive verdict.
“ These will be disposed of in the order presented.
“1. The facts as proven show that a switch or siding left defendant’s main line near the depot at Wolverine in
“2. It is insisted that no facts were placed before the jury on which they could find that the plaintiff, as administrator, has sustained any damages. No witnesses were called to testify as to what the services of such a lad over and above the cost of his maintenance would be worth. While such evidence is admissible under the rule in Rajnowski v. Railroad Co., 74 Mich. 27, is it necessary to put it in to entitle plaintiff to recover ? The speculative nature of such evidence is admitted by defendant’s counsel. Necessarily the opinions of such witnesses would be in the nature of a guess. So many considerations are involved as might well cause any prudent man to hesitate before expressing an opinion.
“The cases of Cooper v. Railway Co., 66 Mich. 261, Hurst v. Railway, 84 Mich. 539, and Charlebois v. Rail
“3. Was the verdict excessive? I am unable to so conclude under the repeated decisions of our Supreme Court. In the Cooper Case a judgment for $1,550 was affirmed. The deceased was a girl 11 years of age. While the courts will not disturb a lesser verdict as inadequate, one of $1,500 should hot be held to be so excessive as to require its reduction or as a reason for granting a new trial. ”
Counsel for defendant insist a verdict should have been directed in its favor for two reasons: (1) Defendant was not guilty of actionable negligence; (2) no damages were recoverable because there was a failure of proof as to pecuniary injury. We will discuss these contentions in the order presented.
1. The claim of counsel is stated in their brief as follows :
“ It is believed that this case does not differ in any degree from one where the injured person is a trespasser in the yards, or on the premises of the railroad company. Plaintiff’s son had no lawful business and no right to be at the end of this track. The duties owing by the defendant toward this boy, who was at most but a bare licensee on the premises of the Cornwall Company, were only to
The record discloses that the stream where these children were fishing was stocked with trout by the State; that during the fishing season all persons who desired to do so were permitted to come into the millyard, along the margin of the stream where the children were, and fish. It also shows that it was about 25 feet from the end of the spur to the margin of the stream; that, at the end of the spur, ties and rails had been thrown up to prevent any car from passing off the end of the rails. The car which hurt the child was pushed, by a train put upon the siding, beyond this obstruction at the end of the rails. It is claimed this train was backed upon the spur much more rapidly than it ought to have been and without being under the control of the trainmen. Instead of the child being where it had no right to be, it was the car that was where it had no right to be, and where no one had any reason to suppose that it would come. We do not think the contention of counsel for defendant can be sustained.
2. We again quote from brief of counsel:
“ The declaration in the case at bar alleged that the plaintiff had suffered pecuniary injury, but the record is absolutely barren of evidence to support the allegation. There was no proof, even to the extent of a bare statement of a witness, that pecuniary injury had been sustained'. Mr. Black, the boy’s father, testified that his son had been killed, and gave the ages of himself, his wife, and son. The trial court held that this was ample to justify the jury in assessing substantial damages, despite the protest of defendant’s counsel, who argued that its effect was to leave the jury in the field of speculation, and to make each of the jurymen witnesses for plaintiff as to whether pecuniary injury had been suffered and the amount thereof. Proof could and should have been supplied, not only of the condition in life of the father and mother, their education, and occupation, but also of the cost of educating, clothing, and maintaining such a
An examination of the cases cited will show they are authority for the,proposition that, in an action for damages because of the death of a minor, it is competent to give testimony of the kind mentioned by counsel. The precise question, however, now presented, has not been passed upon by this court. Some phases of the case were discussed in the cases cited by counsel and in the more recent case of Snyder v. Railway Co., 131 Mich. 418, in which it was said:
“ There was no testimony from which the earning capacity of this boy could be computed to a mathematical certainty. It was a question about which different persons might and .would disagree. Such testimony as the parties were able to produce was offered on each side. The weight of that testimony, its credibility, and the conclusions to be drawn from it, were for the jury.”
Upon the trial, in addition to what is stated in the quotation from counsel’s brief, the age, calling, and condition of health of the father was given, and the age and condition of the mother. It was also shown that the boy was healthy, intelligent, of an excellent disposition, and obedient to his parents. The question presented here has been before other courts. ' In Parsons v. Railway Co., 94 Mo. 286, it is said:
“The law presumes the life of a minor child to be of value to his parent, because he is entitled to his services and is responsible for his support during minority. He is necessarily injured by a wrongful act resulting in the death of such minor child, which thereby deprives him of the value of those services and casts upon him the burden of legal liability for that support when deprived of the value of such services, enhanced by the additional expense of providing medicine, medical' attention, and
The case of City of Chicago v. Hesing, 83 Ill. 204, is instructive upon two of the questions raised in the court below. The action was brought to recover damages for the death of a boy four years old. The court said:
“ Only pecuniary damages can be recovered in such actions as this. Nothing can be given as solace or for bereavement suffered. Under instructions declaring the true rule for estimating the damages, the jury found for plaintiff in the sum of $800, but one of the errors assigned is the amount found is excessive. As a matter of law, we cannot so declare, and, as a matter of fact, how can we know the amount is in excess of the pecuniary damages sustained ? When proof is made of the age and relationship of the deceased to next of kin, the jury may estimate the pecuniary damages from the facts proven, in connection with their own knowledge and experiences in relation to matters of common observation. It is not indispensable that there should be proof of actual services of pecuniary value rendered to next of kin, nor that any witness should express an opinion as to the value of services that may have been or might be rendered. Where the deceased was a minor, and left a father who would have been entitled to his services had he lived, the law implies a pecuniary loss, for which compensation, under the statute, may be given. ”
See, also, Birkett v. Ice Co., 110 N. Y. 504; Houston City Street R. Co. v. Sciacca, 80 Tex. 350; Little Rock, etc., R. Co. v. Barker, 39 Ark. 491.
Judgment is affirmed.