199 F. 211 | E.D. Tenn. | 1911
It is clear that under the Act of 1908, which was in force at the time this accident occurred in 1909, in case of an injury resulting in the death of an employé, no provision was made for the survival of the right of action of the injured employé himself. Fulgham v. Railroad Co. (C. C.) 167 Fed. 660; Walsh v. Railroad Co., supra. And see, by analogy, Chesapeake & O. Ry. Co. v. Dixon, 179 U. S. 131, 135, 21 Sup. Ct. 67, 45 L. Ed. 121; North. Pac. Ry. Co. v. Adams (C. C. A., 9) 116 Fed. 324, 54 C. C. A. 196. Such survival of the injured employé’s right of action was expressly provided for by section 2 of the later amendatory Act of April 5, 1910 (36 Stat. 291, c. 143 [U. S. Comp. St. Supp. 1911, p. 1325]). This, however, cannot enlarge the measure of recovery in the present case, which must be controlled entirely by the provisions of the Act of 1908.
I also think it clear that under the Act of 1908, before the amendment of 1910, in an action brought for the statutory beneficiaries to recover damages for the death of an employé, the recovery is limited to the pecuniary injury or loss sustained by the beneficiaries from the death of the deceased, and that the measure .of damages is compensation for the loss of such pecuniary benefit as could have been reasonably expected to the beneficiaries, as of legal right or otherwise, from the continued life of the deceased, excluding all consideration of punitive elements, loss of society, wounded feelings of the survivors and suffering of the deceased. See, in part, Fulgham v. Railroad Co., supra; and by analogy, Baltimore & P. R. Co. v. Mackey, 157 U. S. 72, 92, 15 Sup. Ct. 491, 39 L. Ed. 624; In re Humboldt Lbr. Mfrs. Ass’n (D. C.) 60 Fed. 428; The Dauntless (D. C.) 121 Fed. 420; Hirchkovitz v. Railroad Co. (C. C.) 138 Fed. 438; Swift & Co. v. Johnson (C. C. A., 8) 138 Fed. 867, 71 C. C. A. 619, 1 L. R. A. (N. S.) 1161; Chicago, P. & S. L. R. Co. v. Wooldridge, 174 Ill. 330, 51 N. E. 701; 8 Am. & Eng. Enc. Law (2d Ed.) 914; 13 Cyc. 362.
Thus, in Baltimore & P. R. Co. v. Mackey, supra, it was held that under a statute of the District of Columbia providing that one causing the wrongful or negligent death of another should be liable to an action of damages for such death, to be assessed “with reference to the injury * * * resulting to the widow and next of kin of such deceased person,” it was not error to charge the jury that in' estimat
Howrever. it would seem under the weight of authority, that the value of a father’s services in attention to and care and superintendence of his children and family and in the education of his children, of which they are deprived by his death, is also to be considered as an element of pecuniary damages. 8 Am. & Eng. Enc. Raw (2d Ed.) 915, 916, and cases cited.
It is, however, expressly provided by section 3 of the Act of 1908, that if the deceased employé was guilty of contributory negligence, the damages otherwise recoverable for the beneficiaries are to be diminished by the.jury in proportion to the amount of negligence attributable to him.
3. An order will accordingly be entered providing that if the plaintiff shall, within ten days from the filing of this opinion, remit $2,500 of the amount of the verdict, the defendant’s motion for a new trial will be overruled and judgment entered for the remaining $7,500 assessed by the verdict, with interest from the date of the verdict; but if the plaintiff shall not make such remission within such time the verdict will be set aside and the motion for new trial granted on the ground that to such extent the verdict is excessive and against the clear weight of the evidence. North. Pac. R. Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755; Arkansas Cattle Co. v. Mann, 130 U. S. 69, 73, 9 Sup. Ct. 458, 32 L. Ed. 854; Koenigsberger v. Min. Co., 158 U. S. 41, 52, 15 Sup. Ct. 751, 39 L. Ed. 889; Buston v. R. R. Co. (C. C.) 116 Fed. 235.
The Clerk will at once notify counsel for both parties of the filing of this opinion.