30 S.E. 8 | N.C. | 1898
Lead Opinion
This is an action for damages in killing plaintiff’s intestate by the alleged negligence of the defendant. The evidence discloses that the de
The action was against the driver and the defendant company. The jury brought in a verdict finding the company guilty of negligence, but the driver not guilty of negligence.
We have examined the record of this case and find that we must order a new trial for error in the admission of evidence of the number and age of’ intestate’s children, etc. This is the defendant’s third exception and relates to the measure of damages. No damages could be recovered at common law for killing another, because it was a personal injury and the remedy was lost by the death, and the remedy did not survive. The remedy in England and in this country is given by statute. In the former, the rule of damages was “the reasonable expectation of pecuniary advantage from the continuance of the life of the deceased.” The English statute required the jury to apportion the damages among the beneficiaries as therein provided, and that made it necessary to take proof of the number, names, ages, etc., of the children. Our statute (Code, Section 1499) allows only such damages as “are a fair and just compensation for the pecuniary injury resulting from the death,” and the amount recovered is distributed in the same manner as personal property in case of intestacy. Code, Section 1500. It will be observed that under our Statute the pecuniary injury is the measure. That means the value of the labor or the amount
His Honor instructed the jury: “You can consider the number of her infant children and their ages, only so far as that shows the jury her opportunity for effort .and helps them to put a pecuniary value on the intellectual and moral training that she might be able to give them while they were infants and under her care. You will not allow anything to console these children for the great grief that they suffer in the loss of their mother. ” This would be so, if the necessities of the family, and not the value of the life of the deceased were the rule. See cases supra. Besides, that view would tend to violate the rule above stated, i. e., it would furnish a motive to the jury to allow damages beyond the value of the decedent’s life as an industrious or idle parent.
We must therefo?-e order another trial, and we think this a proper case to allow the whole matter to he retried.
New trial.
Concurrence Opinion
concurring: While I concur in the judgment of the court that there must be a new trial for the misdirection of his Honor on the issue of dam
If by intellectual training was meant her capacity to impart to them the ordinary instruction given to chi 1-dren, and thus save the expense of sending them to school, it might be competent under the proper restriction; but it is entirely too general as given. Moral training is still further beyond the reach of human calculation, as it is infinite in its tendencies and may be so in its results The law will not attempt to give compensation for such a loss, not because it is not real and substantial, but because it is irreparable and incalculable. We have no scales by which to measure the value of a pure Christian mother, and the moral influence she may have upon her children. But her capacity to minister to their material wants can be determined, and adequate compensation given in pecuniar} damages. If she was able to feed, clothe and shelter a large family of children by her own industry, to cook and wash for them and make their garments, I do not see why these facts, if they are facts, would not be competent evidence of her earning capacity. If she did that for which she would otherwise have been compelled to pay, she earned that money by saving it just as much as she
It is urged in behalf of the defendant that such evidence might prejudice the jury, and cause them to render a verdict in accordance with their sympathies and contrary to their judgment and their oath. I can only say that the jury are an inherent part of the court, to whose honesty and intelligence is committed the determination of such questions of immemorial usage and express constitutional mandate. Peculiarly representing the body of the people — the country — they surely would have sense enough to know that their duty was to measure out equal and exact justice and not generosity, and integrity enough to feel that they could put their hands in their own pockets to relieve the wants of
Lead Opinion
This is an action for damages in killing plaintiff's intestate by the alleged negligence of the defendant. The evidence discloses that the defendant was backing its train onto a crossing at the speed of three or four miles an hour, and that the hack driver, (973) carrying plaintiff's intestate, came in view of the backing train in time to have stopped and avoided the collision, but, thinking and saying he could "make it," he rushed his horse to a high speed but failed to make it, and the intestate was killed.
The action was against the driver and the defendant company. The jury brought in a verdict finding the company guilty of negligence, but the driver not guilty of negligence.
We have examined the record of this case and find that we must order a new trial for error in the admission of evidence of the number and age of intestate's children, etc. This is the defendant's third exception and relates to the measure of damages. No damages could be recovered at common law for killing another, because it was a personal injury and the remedy was lost by the death, and the remedy did not survive. The remedy in England and in this country is given by statute. In the *612
former, the rule of damages was "the reasonable expectation of pecuniary advantage from the continuance of the life of the deceased." The English statute required the jury to apportion the damages among the beneficiaries as therein provided, and that made it necessary to take proof of the number, names, ages, etc., of the children. Our statute (Code, sec. 1499) allows only such damages as "are a fair and just compensation for the pecuniary injury resulting from the death," and the amount recovered is distributed in the same manner as personal property in case of intestacy. Code, sec. 1500. It will be noted that under our statute thepecuniary injury is the measure. That means the value of the labor or the amount of the earnings of the deceased if he had lived, without regard to the number of the recipients of his labor, and the jury (974) in arriving at such value are allowed to know by proofs whether he was an industrious or an idle man — honest or dishonest — drinking or sober man, and the like; and in that way the jury worked out the pecuniary damages sustained by the family. Nothing is allowed as a punishment to the defendant, nor as a solace to the plaintiff. The few decisions in our State will be found in Collier v. Arrington,
His Honor instructed the jury: "You can consider the number of her infant children and their ages, only so far as that shows the jury her opportunity for effort, and helps them to put a pecuniary value on the intellectual and moral training that she might be able to give them while they were infants and under her care. You will not allow anything to console these children for the great grief that they suffer in the loss of their mother." This would be so if the necessities of the family and not the value of the life of the deceased were the rule. See cases supra. Besides, that view would tend to violate the rule above stated, i. e., it would furnish a motive to the jury to allow damages beyond the value of the decedent's life as an industrious or idle parent.
We must therefore order another trial, and we think this a proper case to allow the whole matter to be retired.
New trial.
