57 Ind. App. 145 | Ind. Ct. App. | 1914
Suit by appellee for damages for loss of services of Ms minor child killed by one of appellant’s trains. The complaint was in two paragraphs to each of which appellant filed answer of general denial. A trial by jury resulted in a verdict for appellee for $1,400.
From a judgment on the verdict appellant appeals and in its brief says: ‘ ‘ There is but one question involved in this case. This question is raised in three ways, first, by the specification in the motion for a new trial that the assessment of the amount of damages is excessive; second, by the specification in the motion for a new trial that the court erred in refusing to give instruction No. 8 of the series of instructions requested by the defendant; and third, by the action of the court in overruling defendant’s motion to modify the judgment.” The assignment of errors and the briefs duly present the question.
It appears without dispute that on October 20, 1910, Delphia Chriss, a daughter of appellee, almost twelve years of age, while on her way to school, caught her feet in a cattle guard of appellant’s road, near the limits of the city of Elwood, and before she could extricate her feet therefrom, was struck by one of appellant’s trains and so injured that she soon afterward died from the injuries so received. The evidence also shows that she was a bright, healthy and obedient child; that she made good grades in school; that her father and mother were living and she was the oldest of a family of five children; that her parents kept' a grocery and produce store in which they both worked; that the decedent helped in the store mornings, evenings and at noon a part of the time, and during her vacation; that she helped in caring for the younger children and in other household duties and was generally industrious and helpful in and about the home and store.
Ihl v. Forty-Second St., etc., R. Co., supra, is a leading case on the subject. The suit was for damages for the death of a child three years and two months old. “The jury awarded damages in the sum of $1,800. The question was raised that there was no evidence of any pecuniary loss resulting to the next of kin, and the New York Court of Appeals in passing on the question on page 320 said: “The absence of proof of special pecuniary damage to the next of kin resulting from the death of the child would not have justified the court in nonsuiting the plaintiff, or in directing the jury to find only nominal damages. It was within the province of the jury, who had before them the parents, their
The English Court of Exchequer in Duckworth v. Johnson, supra, considered a case brought under Lord Campbell’s Act (9 and 10 Vict. C. 93), involving damages for the death of a boy fourteen years of age. It was shown that he had previously been employed for a time at 4s. per week but at the time of his death he was not employed or earning any wages. It was contended that no such pecuniary loss had resulted to the plaintiff by the loss of his son as to entitle him to maintain the action. The court by Justice Pollock, C. B., said on page 656: “The jury found that plaintiff sustained damages to the extent of £20. Can we set aside that verdict and enter it for the defendant? I think not. There was evidence, which very likely satisfied the jury as to the matter of profit and loss, quite apart from any consideration of parental affection. It is true that no distinct evidence was given of the value of the boy’s services, and the cost of boarding and clothing him; but as to that the jury were
The trial court did not err in the rulings complained of. Judgment affirmed.
Nobs. — Reported in 105 N. E. 62. As to measure of damages in actions for causing the death of a human being, see 12 Am. St. 375. As to the measure of damages recoverable by a parent for the death of a minor child by wrongful act, see Ann. Cas. 1912 C 58. See, also, under (1) 13 Cye. 369; (2) 13 Cyc. 375.