53 Neb. 674 | Neb. | 1898
On the night of December 4, 1890, David B. Burleigh, while on hit way to his residence in the city of Friend,
1. The first argument is that the petition does not state a cause of action. The gist of this contention is that the facts stated in the petition do not show that the widow and next of kin of the deceased have sustained any special pecuniary loss by reason of his death. The petition alleges that the deceased at the time of his death was fifty-eight years old; that he Avas before the injury a strong and vigorous man; that he was engaged in mercantile business, and that he left surviving him a widow and six children, to whom he devised his property. The action is brought under Compiled Statutes,. chapter 21, corresponding to Lord Campbell’s Act, and giving to a personal representative an action on behalf of the widow and next of kin for pecuniary injuries by them sustained through the death of the decedent where such death has been caused by the wrongful act, neglect, or default of another under such circumstances that the person injured might himself have maintained an action. In Burlington & M. R. R. Co. v. Crockett, 17 Neb. 570, it was held that in such cases the petition must allege that there survived a widow or next of kin. Clearly so, because if there Avere no persons entitled to the proceeds of the action there could be no such proceeds. There could
2. On the trial the city offered to prove that Burleigh, after his injury, stated that his injury was the result of
3. A third argument is that the court erred in permitting to be introduced in evidence the Carlisle tables of expectancy of life. It is not claimed that these tables were not of themselves competent evidence, but it is insisted that there is no evidence to show that the benefit of the services or earnings of the deceased, had he lived, would have inured to his next of kin, and for that reason the tables were incompetent. The expectancy of the deceased at the time of his death was fifteen years. At that time he was engaged in mercantile business, which seemed to have been a prosperous one, his sales amounting to about $9,000 a year; and his expenses from $1,000 to $1,500 a year. I-Iis expenses included the support of his family. Prior to his death he lived with his family. If the family consisted of simply the husband and wife, then upon the death of the husband the widow was deprived of the profits and earnings which the husband made and which prior to his death he devoted to her support and maintenance. Of course the administrator was entitled to recover only the amount of the pecuniary loss which the widow and next of kin had sustained by reason of the death of the deceased, and these Carlisle tables were admissible in evidence for the purpose of showing the number of years which the deceased would probably have lived and to admeasure the loss to his. widow and next of kin resulting from his death. If it were true that the next of kin of the deceased, before his
4. A fourth argument of the city is that the court erred in refusing to permit it to prove that prior to the accident to Burleigh the sidewalk in question was in constant use by the citizens of Friend both day and night and that no other accident was ever known to happen on that walk. We do not see how this evidence would have tended to prove or disprove any issue in the case.
5. A fifth argument of the city is that the di-.tiict court erred in refusing to permit it to prove that the inventory of the property of the decedent filed in the county court of Saline county by the executor did not contain the claim sued for here. There was no error in this ruling of the court. This cause of action did not belong, and does not belong, to the estate of the decedent. It belongs to his widow and next of kin, and was not and is not, and can never become, an asset of his estate.
6. The city requested the court to instruct the jury as follows: “If the widow and children were as well off financially after the death of said Burleigh as before his death, then the plaintiff is not entitled to recover.” The court added to this instruction the following: “On account of the death of David B. Burleigh.” The city now complains that the court erred in modifying the instruction. The modification made by the court to the in
7. Another argument of the city is that the court erred in refusing to give the following instruction to the jury: “You are further instructed that the deceased was bound to exercise ordinary care for his personal safety while passing along the streets of the defendant; and if the jury find from the evidence that plaintiff’s slight negligence, if any, contributed directly to the alleged injury, then you will find for the defendant.” The court did not err in refusing to give this instruction. Such expressions as “slight negligence” and “slight want of ordinary care” should not be used in instructions, as they tend to obscure and confuse what should be stated in plain and concise language. The doctrine of comparative negligence is not in force in this state. Our courts do not recognize degrees of negligence. The rule is that if a person himself in the exercise of ordinary care is injured through the negligence of another he may recover; but if his own negligence contributed to or was the proximate cause of the injury he cannot recover. (Village of Culbertson v. Holliday, 50 Neb. 229.)
The foregoing embrace all the assignments of error which we think it worth while to notice. There are other complaints about the action of the district court in giving and refusing to give certain instructions. We have examined carefully the entire record and it must suffice to say that we think the court committed no error of which the city can complain. The judgment of the district court is
Affirmed.