112 Ill. App. 43 | Ill. App. Ct. | 1904
delivered the opinion of the court.
The declaration sets up that the deceased left him surviving a sister and two brothers. The evidence tends to show that the deceased sent money to his brother Salvator in Italy in small amounts aggregating from $80 to $100 per year. Appellee, who is the only witness who pretended to know anything of his own knowledge about Salvator, says: “ His brother is in the old country. He cannot do anything. * * * He is a dwarf, you know, what they call a dwarf, a small man. He is about three feet high.” This evidence is insufficient to sustain a verdict for more than nominal damages. There is here no proof of dependency shown. The record is silent as to what was done with this money when it reached Salvator. We are not informed whether he used it for his necessary support, or invested it for the deceased to await his return to the land of his birth. For all this record discloses, Salvator may be head of the La Mantia family, its adviser and its treasurer. Neither does the evidence show that Salvator is not wealthy in his own right, or is not a successful business man. The mere fact that he is a small man, about three feet high, proves nothing on either side of this contention. What the witness means by “He cannot do anything.” ■ when read with its context, is too uncertain to be the foundation of a judgment for $3,500. It devolved upon appellee not only to show that the deceased left kindred surviving him, but also to prove that they suffered pecuniary loss by reason of his death. The right of recovery sought in this case is unknown to the common law. Hence, under ’a well established canon of interpretation, the right created by the statute must be strictly construed. R. S., sec. 2 of ch. 70, granting this right, reads: “And in every such action the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such' death to the wife and next of kin of such deceased person.” This language gives the jury a large discretion as to the amount of the damages in a proper case; but it places upon the plaintiff, except in those instances where the relation of husband and wife or parent and child exists, the burden of showing affirmatively that the next of kin suffered “ pecuniary injuries ” by reason of such death. Unless such proof be made, nominal carnages only can be given. North Chicago St. Ry. Co. v. Brodie, 156 Ill. 317; C., B. & Q. Ry. Co. v. Gunderson, 174 Ill. 499.
The court below, under the evidence offered, did not err in its refusal to find the defendant not guilty. As this case must be sent back to the trial court, we will not discuss its merits. It is sufficient to say that there is evidence in this record tending to prove that the deceased was in the pxercise of reasonable and ordinary care at the time of his injury," and that such injury was caused by the wrongful act, neglect or default of appellant.
It is further contended by appellant that as it did not erect this bridge, did not have control of or supervision over the men engaged in the work, and did nothing more than to supply the steel structure to the Kelly-Atkin son Company, and as that company did all the work in its own way and according to its own judgment, it, and not appellant, is liable in this action, if any liability exists. The statement of facts shows that in its contract with the Sanitary District appellant stipulated it would pay all damages for personal injuries resulting from its wrongful acts or from the wrongful acts of any of its employees. The work to be done under this contract necessarily obstructed and encumbered the public highway and unavoidably rendered that highway unsafe for public travel. In such a case the generally understood- doctrine of “ independent contractor” does not apply. The rule which governs is this : the case is to be viewed and the liability is to be determined as it would be if the work had been done by appellant, and not by the subcontractor. We are committed to this rule by the opinion in Met. W. S. Ry. Co. v. Dick, 87 Ill. App. 40. Without further comment we adhere to the rule as there laid down. In so holding we are in accord with the Supreme Court of the United States. Water Co. v. Ware, 16 Wall. 566.
The judgment of the Circuit Court is reversed and the cause is remanded.
Reversed and remanded.
