The plaintiff appeals from the judgment below on the ground that the amount of damages awarded for the wrongful death of his intestate was inadequate. He assigns as error the court’s charge to the jury in stating the rule for the measure of damages in this case.
In 1846 the common law rule that right of action for personal injury did not survive the death of the injured person was abrogated in England by statute (9 and 10 Vict. C. 93), known as Lord Campbell’s Act, which permitted recovery in an action by the administrator when the death of the decedent was due to the unlawful or negligent act of another. In North Carolina this change in the common law rule was adopted by statute in 1869, now codified as G.S. 28-173, and G.S. 28-174, and right of action for wrongful death was conferred upon the personal representative of the decedent, with the further provision that “The plaintiff in such action may recover such damages as are a fair and just compensation for the pecuniary injury resulting from such death.” So that the action for wrongful death exists only by virtue of this statute and the statutory provision must govern not only the right of action but also the rule for determining the basis and extent of recovery of damages therefor.
In interpreting the language of the statute the rule has been, well stated by
Chief Justice Stacy
in a recent opinion in
Journigan v. Ice Co.,
“The measure of damages in actions for wrongful death is the present worth of the net pecuniary value of the life of the deceased to be ascertained by deducting the probable cost of his own living and usual or ordinary expenses from his probable gross income which might be expected to be derived from his own exertions during his life expectancy. Carpenter v. Power Co.,191 N.C. 130 ,131 S.E. 400 ; Gurley v. Power Co.,172 N.C. 690 ,90 S.E. 943 . In arriving at the net pecuniary value of the life of the deceased, the jury is at liberty to take into consideration the age, health and expectancy of life of the deceased, his earning capacity, his habits, his ability and skill, the business in which he was employed and the means he had for earning money, the end of it all being, as expressed in Kesler v. Smith,66 N.C. 154 , to enable the jury fairly to arrive at the net income which the deceased might reasonably be expected to earn from *731 bis own exertions, bad bis death not ensued, and thus assess the pecuniary worth of the deceased to bis family, bad bis life not been cut short by the wrongful act of the defendant. Burns v. R. R.,125 N.C. 304 ,34 S.E. 495 ; Burton v. R. R.,82 N.C. 505 .” See also Hanks v. R. R.,230 N.C. 179 ,52 S.E. 2d 717 ; Rea v. Simowitz,226 N.C. 379 ,38 S.E. 2d 194 ; Coach Co. v. Lee,218 N.C. 320 (328),11 S.E. 2d 341 .
In the excerpt from the charge to which plaintiff noted exception the trial judge seems to have instructed the jury in substantial accord with the decisions of this Court, and particularly to have followed the language in Coach Co. v. Lee, supra, and Carpenter v. Power Co., supra. The use of the word “family” in the connection in which it was used may be understood as meaning estate. Hanks v. R. R., supra. It affords the plaintiff no ground of complaint.
The plaintiff, however, urges upon us that in view of the evidence that the plaintiff’s intestate, aged 33 years, was an educated woman, a housewife and mother of two children, and had several years before been employed at $165 per month, the court’s instruction to the jury on the issue of damages should have included “a statement as to the value of her labor” as a housewife, and relies upon what was said in
Bradley v. R. R.,
The jurors to whom was committed the determination of the facts from the evidence in this ease have allowed compensation for the wrongful death of plaintiff’s intestate, but have fixed the amount in what plaintiff contends is an insufficient sum. The plaintiff availed himself of the only relief from an inadequate verdict by motion addressed to the trial judge to exercise his power to set the verdict aside. This the judge in his discretion declined to do. His refusal would not be reviewed here except upon showing of manifest abuse of discretion. The verdict of which the plaintiff complains was rendered by a presumably intelligent jury who had heard all the evidence, and the motion to set the verdict aside was denied by the trial judge who also had heard all the evidence. We do not find there was such a manifest abuse of discretion on the part of the judge as would warrant this Court in reversing his ruling.
Johnston v. Johnston,
“It is the rule in this jurisdiction that in the absence of some imputed error of law or legal inference arising in connection therewith the direct supervision of verdicts is a matter resting in the sound discretion of the trial court and is not reviewable on appeal.”
J ohnston v. J ohnston, supra.
“It is well settled in this State that the exercise of a discretionary power by the trial court is not reviewable upon appeal, unless there has been a palpable abuse of such discretion.”
Hughes v. Oliver,
Plaintiff’s motion for new trial for newly discovered evidence is based upon proffered testimony applicable to the first issue only. Upon that issue the verdict was in favor of the plaintiff. Hence we are unable to say as a matter of law that the jury’s verdict on the third issue was affected by lack of the additional testimony now presented. The proposed new7 evidence tends to show the falsity of the testimony of defendants’ witnesses to the effect that plaintiff’s automobile skidded on the
*733
occasion of the collision in which plaintiff’s intestate was killed, and to impeach one of defendants’ witnesses. "Without the new evidence the jury-answered the first two issues in favor of the plaintiff. The plaintiff’s motion based upon the evidence offered does not meet the requirements set out in
Johnson v. R. R.,
Upon consideration of the ease and all the questions involved in plaintiff’s appeal, we conclude that in the trial there was
No error.