3 Colo. 94 | Colo. | 1876
Briefly stated, the facts in this case, as given in evidence at the trial below, appear to be as follows :
In July, 1872, a violent rain storm occurred on the line of appellant’s road, and produced a flood in a dry ravine or arroya, called Coon creek, which falls into Big Sandy creek. Thereby an embankment leading up to a bridge at the mouth of the arroya was washed out, and a midnight train, bearing appellee’s intestate as a passenger, plunged
Upon these facts, a principal question presented in the record is, whether the road at the point where the accident occurred was properly constructed to resist the action of the elements upon it. That the company was bound to exercise the highest degree of care in that respect is conceded, and if the officers of the company knew, or could have ascertained by diligent inquiry, the danger to which the road was exposed, they were bound to guard against it. This is the principle founded upon public policy which was recognized by this court in a case which grew out of the same accident (2 Col. 442), and it is supported by unquestionable authority. Moods of the volume and violence of which destroyed the road, although infrequent, were not unknown on the plains, and in the region of country where the accident occurred. One witness had some knowledge of six storms of much the same character within the Territory, and another gave an account of one which occurred near the scene of the disaster at the time when the road was built. Aside from this, the fact that such storms have visited different localities, and their destructive power is part of the history of the country, of which we are justified in taking some notice; it is true, that this peculiarity of the climate was not as well known
It is true also, as the evidence shows, that these storms are erratic, rarely recurring in the same place and usually confined to a small territory. That circumstance may be sufficient to relieve a railroad company from the imputation of negligence which might be inferred from a failure to provide a sufficient water-way in places where there is no natural channel, and nothing in the topography of the country to suggest danger from water. We shall presently show that the same circumstance will often rebut a presumption of willful misconduct in constructing the road, but it cannot avail to relieve a company from the duty of providing sufficient water-ways in places where, as in the case at bar, there is a natural channel which drains a considerable territory. Experience proves that in such places large bodies of water may accumulate, and although this does not often occur, the safety of the traveling public demands that ample provision shall be made for it.
Referring to the evidence in this case, it is only necessary to say in this connection that the embankment which was washed away was manifestly inadequate to withstand a large body of water, as the catastrophe which gave rise to this suit sadly proved; and the company was negligent in placing it there. The case of Withers v. The North Kent Ry. Co., 3 H. & N. 969, in which, upon facts somewhat analogous, the company was discharged, is not controlling, for in that case negligence was not shown. In a humid climate it may not be necessary to guard against such torrents as that which swept over appellant’s road, but with us the necessity exists, and railroad companies should recognize it. placing it there. The case of Withers v. The North Kent By. Co., 3H. &1ST. 969, in which, upon facts somewhat analogous, the company was discharged, is not controlling, for in that case negligence was not shown. In a humid climate it may not be necessary to guard against such torrents as that which swept over appellant’s road, but with us the necessity exists, and railroad companies should recognize it.
To these general remarks touching the liability of the company, something should be added upon the question of exemplary damages which was submitted to the jury. Of the right to such damages under the statute (9 Sess.
And as to the flood which destroyed the road, the officers of the company had no greater reason to apprehend that it would fall in that place than elsewhere on their long line. True, there were indications of the action of water, but probably no greater than in many other valleys on the road, and certainly not sufficient to indicate that such torrents were of common occurrence there.
Oases may arise, presenting other features, as for instance — if no water-way should be provided in a place where one was manifestly needed, in which a different rule would be enforced, but upon the evidence in' this record, we think there was no ground for punitive damages.
We come now to consider the true measure of compensatory damages' in cases of this kind, a subject of great difficulty, upon which widely different opinions have been expressed. Whether the damages given by the statute are for the injury to the deceased, and such as he might have recovered, if he had lived, or for the loss sustained by the survivors in and by his death, is not entirely clear to the writer. But regarding the point as settled in favor of the latter proposition, by the decision of this court, to which reference has been made, and perhaps by the weight of authority also, there is still some difficulty in ascertaining ‘the loss of the survivors. In many of the decisions • the value of the life of the deceased is mentioned, and language of that kind is used in Miller’s case, but this certainly does not mean the value of life in the abstract, for in that sense it would be simply incalculable. As a matter of sentiment, life has no pecuniary value, but considered with reference to the relations of deceased with others, it is capable of such estimate. In this sense a parent is entitled to the services of children during their minority, and to support and maintenance from them in his declining years; a husband is entitled to the assistance of his wife in the af
The authorities are, however, quite bewildering, and to review them at length would be very tiresome. The rule which gives to survivors the probable earnings of the deceased, if his life had not been cut off, is strongly supported by the consideration that it is of uniform operation and effect. Under it the recovery is the same under like circumstances, whether the beneficiary is husband, wife, child or parent, and no reason is perceived why it should not be so. This accords with what is said in Illinois Central R. R. Co. v. Barron, 5 Wall. 104, as to the theory of these acts; and it seems to be the better rule. Strong objections may be urged against it, but I do not perceive that any other rule is more defensible. Upon this it would seem that the view taken of the statute in the court below was incorrect. The jury should not have been required to return damages according to the filial affection and attention of deceased to his parents, for of these no pecuniary estimate could be made. The statute does not stand upon that idea, but upon the theory, that in old age, parents may rely upon children for support, in the same way as children demand the like care in infancy from their parents. The accumulations of the deceased, during the remainder of his life, having reference to his age, occupation, habits, bodily health and ability, would have furnished the true measure of compensatory damages. This is not applicable to all cases, as for instance, in the case of a child of tender years, it is not possible to show more than the age and sex, and the circumstances and condition in life of the parents. Ihl v. Forty-Second Street R. R. Co., 47 N. Y. 318; Pennsylvania R. R. Co. v. Keller, 67 Penn. St. 305. So in the case of a wife, other data must be used, but the rule suggested seems to be applicable to adult males. This accords with what is said in Illinois Central R. R. Co. v. Barron, 5 Wall. 104, as to the theory of these acts; and it seems to be the better rule. Strong objections may be urged against it, but I do not perceive that any other rule is more defensible. Upon this it would seem that the view taken of the statute in the court below was incorrect. The jury should not have been required to return damages according to the filial affection and attention of deceased to his parents, for of these no pecuniary estimate could be made. The statute does not stand upon that idea, but upon the theory, that in old age, parents may rely upon children for support, in the same way as children demand the like care in infancy from their parents. The accumulations of the deceased, during the remainder of his life, having reference to his age, occupation, habits, bodily health and ability, would have furnished the true measure of compensatory damages. This is not applicable to all cases, as for instance, in the case of a child of tender years, it is not possible to show more than the age and sex, and the circumstances and condition in life of the parents. Ihl v. Forty-Second Street R. R. Co., 47 N. Y. 318; Pennsylvania R. R. Co. v. Keller, 67 Penn. St. 305. So in the case of a wife, other data must be used, but the rule suggested seems to be applicable to adult males.
For the purpose of showing the probable duration of life, the Carlisle, or other approved tables may be used. Rowley v. London & N. W. Ry. Co., 8 Exch. L. R. (1872-3)
If the views here expressed do not fully accord with what is said in Miller’s case, it is thought necessary to modify that opinion. The evidence was stronger in that case, however, and probably we have not overruled it in any substantial point.
Several questions relating to the admissibility of testimony have been examined, but any discussion of them would be unprofitable. Without deciding whether the evidence at the trial was sufficient to prove the parentage of deceased, we think that more should have been offered. Doubtless, evidence to show that the alleged parents of deceased acknowledged the marital relation, and lived together as husband and wife, could have been obtained, and this should have been done.
The judgment of the district court is reversed with costs, and the cause remanded.
Judgment reversed.