This action is brought to recover damages for death caused by the negligent explosion by defendant of a blast in the city of San Francisco, whereby the plaintiff’s intestate was killed.
The demurrer to the complaint was properly overruled. The allegations as to the appointment of Munro as administrator of the deceased, Stanton, were sufficient.
The court committed no error in its rulings on the admission of testimony.
The court gave, at the request of plaintiff, the following instruction to the jury:—
“If you find, from the evidence, that the defendant through its agents, servants, and employees, fired and exploded the blast, as charged by the plaintiff’s complaint, and that it resulted in the death of Michael Stanton, the plаintiff’s intestate, then the plaintiff is entitled to recover such damages as, from the evidence and proofs, under all the circumstances of the case, you may deem to be just.”
To the giving of this instruction the defendant excepted.
We find no error in this instruction. The language in the first clause, that “the defendant, through its agents, servants, and employees, fired and exploded the blast,” is qualified by the words “ as charged in the plaintiff's complaint”; and the complaint set forth a careless and negligent explosion of the blast. In our judgment, the direction embraced all the material issues in the complaint, the finding on which -was necessary to establish the cause of action against the defendant.
The giving of the following instruction by the court is likewise excepted to: —
“ It is no defense or answer to an actiоn of this character that defendant, in exploding the blast in question, used and employed skillful and experienced men, and in everything appertaining to blasting it used and exercised the highest degree of care; and I charge you that defendant is liable to damages for the death of said Michael Stanton if you find that his death resulted from the firing of the blast in questiоn, even if it used the highest and utmost care and skill in firing and exploding it.”
We perceive no error in the above direction. The evidence shows clearly that this blast was exploded in a thickly settled portion of the city. We are of opinion that no degree of care will excuse a person, where death was caused by such explosion, from responsibility for it.
It is said that the above instructions ignore the doctrine of contributory negligence. As there was no evidence of contributory negligence in the cause, the doctrine of such negligence was properly ignored.
“ 3. If your verdict shall be for the plaintiff, such damages may be given by you as, under all the circumstances of the case, may bе just. And in determining the amount of such damages, you have the right to take into consideration the pecuniary loss, if any, suffered by the mother of Michael Stanton by his death, if you find that his mother is living. And the loss which the plaintiff is, in such a case as this, entitled to recover, is what the deceased would have probably earned and accumulated by his labor in his business or calling during thе residue of his life, and which would have gone to the benefit of his mother, or heirs, or personal representatives, taking into consideration his age, health, habits of industry, ability and disposition to labor, and the probability of his length of life.
“4. I further instruct you, if, from the evidence, you should find for the plaintiff, then the measure of damages is not alone the pecuniary loss and injury sustained by the mother in the loss of her son, as just explained, but in assessing the damages then, you may, in addition, take into consideration the sorrow, grief, and 'mental suffering occasioned by his death to his mother, together with the loss, if any, sustained by her in being deprived of the comfort, society, support, and protection of the deceased by reason оf his death.”
As no question is made on the remainder of this instruction, we do not insert it.
To the giving of these instructions, exceptions were reserved by defendant, and it is said, on behalf of defendant, that the court erred in giving them. Our attention is particularly directed to the following portion of instruction 3: “And that, in determining the amount of such damages, you have the right to take into сonsideration the pecuniary loss, if any, suffered by the mother of Michael Stanton by his death”; and the following portion of instruction 4: “The sorrow, grief, and mental
Now, in regard^to the above-quoted portion of instruction 3, it is argued the mother of Michael Stanton was not the party plaintiff; that the action was not brought by the heirs of the deceased, but by his personal representative; that this action is brought under section 377 of the Code of Civil Procedure. That section is in these words:—
“ Sec. 377. When the death of a рerson, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death; or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every aсtion under this and the preceding section, such damages may be given as, under all the circumstances of the case, may be just.”
In connection with this section, our attention is called to the act of 1862 (Stats. 1862, p. 447), and it is said that section 3 of that act prescribed that the action should be brought by the personal representative of the deceаsed alone, and prescribed the rule of damages in these words: “The jury may give such damages, pecuniary and exemplary, as they shall deem fair and just, and may take into consideration the pecuniary injury resulting from such death to the wife and next of kin of such deceased person,” and that, when enacted in the code, the words in italics were omitted therefrom. The counsel for defendant proceeds to give tl^e reason for this change in the enactment. The reason so given by counsel is, that the heirs were given the right to maintain the action, and hence its re-enactment was not necessary, because, in an action brought by them, as a matter of course, their pecuniary injuries should be taken into consideration.
The question made on the instruction above pointed out must primarily relate to the circumstances which may be given in evidence on the issue of damage, and on that point the statute is very broad and general in its terms. Such damage may be given as, under all the circumstances of the case, may be just, is the languаge of the statute. What these circumstances are may be a matter of difficulty in all cases to determine. It would be almost impossible to draw a priori the line which separates the circumstances which should be admitted from those which should be excluded. The exact line of inclusion and exclusion it would be hard to determine in advance of the circumstаnces of any particular case. Here the circumstances are defined in the instruction. As to the portion of instruction 3 objected to, we think that it was correct. The action is permitted by the statute to be maintained for the benefit of the heirs. Certainly the pecuniary loss which the heirs might sustain by the death is clearly one of the circumstances to be considered. (Chicago v. Major,
As to the portion of instruction 4 above quoted, there is more difficulty. It has been held in an English case that the jury should not be allowed to take into consideration the mental sufferings or bereavement of the plaintiff for the loss of her husband. (Blake v. Midland R’y Co., 18 Q. B. 93.) In this case the widow of the deceased, as administratrix, was the plaintiff. In the case cited, Justice Coleridge said:—
“ The title of this act [referring to Lord Campbell’s act] may be some guide to its meaning, and it is an act for compensating the families of persons hilled, not for solacing their wounded feelings. Reliance was placed upon the first section, which states in what cases the nеwly given action may be maintained, although death has ensued, the argument being that the party injured, if he had recovered, would have been entitled to a solatium, and therefore so shall his representatives on his death. But it will be evident that this act does not transfer this right of action to his representative, but gives to the representative a totally new right of aсtion on different principles. Section 2 enacts that ‘ in every such action the jury may give such damages as they may think proportionate to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought. The measure of damage is not the loss or suffering of the deceased, but the injury resulting from his deаth to his family.’
“In Franklin v. Southeastern R’y Co., 3 Hurl. & H. 211, and in Taulton v. Southeastern R’y Co., 4 Com. B., N. S., 296, suits were maintained on account of the death of
We agree with what is said in the opinion above quoted, that the action given by the statute is a new action, and not the transfer to the representative of the right of actiоn which the deceased person would have had if he had survived the injury. (Blake v. Midland R’y Co., 18 Q. B. 93; Pym v. Great Northern R’y Co., 2 Best & S. 759; Read v. Great Eastern R’y Co., L. R. 3 Q. B. 555; Safford v. Drew,
It may be observed that the language of the statute of this state, section 377 of the Code of Civil Procedure, is broader than the language of the English statute. (The English statute may be found in 2 Red field on Railways, 6th ed., 287.) Under the words of the section., we are of opinion that the circumstances mentiоned in it do not include the sorrow, grief, or mental suffering occasioned by the death of Michael Stanton to his mother.
The extent of the sorrow, grief, and mental suffering was not shown to the jury by any testimony. It was left to be inferred as a natural result of the death of the son. Whether such grief was overwhelming, or of a light and transient character, did not appear. Thе extent and character of the sorrow and grief were left to be conjectured or guessed at by the jury, with the right conceded to the jury of finding such grief and sorrow to be extreme, should they so elect. The opportunity to
In allowing the jury to take into consideration the loss of the comfort, society, and protection of deceased, we think we have gone far enough, but this we think should be allowed in the case of a wife, as in Beeson’s case, or a mother.
We have found no case in which damages for sorrow, grief, and mental suffering are allowed under any of the statutes. We have examined the cases cited on behalf of the plaintiff, and they affirm no such proposition. (See Blake v. Midland Railway Co., 18 Q. B. 93; Chicago and Rock Island R. R. Co. v. Morris,
Judge Redfield, in the sixth edition of his work on railways, states: “ There seems no doubt, according to the best-considered cases in this country, that the men*
In State v. Baltimore and Ohio Railroad Co.,
In a note on page 288 of 2 Redfield on Railways, 6th edition, it is stated: “In-a suit by a parent for the death of a child, recovery can be had only for the pecuniary injury, the services of the child, less cost of maintenance (Pennsylvania R. R. Co. v. Lilly,
We are of opinion that the court erred in including in the instruction the words “sorrow, grief, and mental suffering occasioned by the death of his son to his mother.” In thus directing the jury, the court fell into an error. In our opinion the damage should be confined to the pecuniary loss suffered by the mother, and the loss of the comfort, society, supрort, and protection of deceased.
The court did not err in refusing the requests of defendant Nos. 1, 2, 3, 4, and 7. All of these instructions, under the facts of the case, would have been misleading. The evidence clearly showed both a wrongful act and neglect on the part of the defendant. It is a wrongful act to explode a blast of powder in a thickly sеttled £>ortion of a city, as was done in this case. The uncontradicted testimony showed a clear case of explosion in the city, where many persons were living, and where such an explosion could not take place without strong probability of its injuring some one.
The defendant requested the court to instruct the jury as follows: —
“ The jury have no right to give exemplary or vindictive damages, but are confined to the actual pecuniary damage suffered by the estate of Michael Stanton, deceased.”
The court refused to give this instruction as requested, but modified the same so as to read as follows: —
“ The jury have no right to give exemplary or vindictive damages, but are confined to the aсtual pecuniary damage suffered by the estate of Michael Stanton, deceased; but in this connection I charge you that the law also permits a jury to make allowance for such a sum as may seem fair and just for sorrow, suffering, and mental anguish occasioned to her by the death.”
To the refusal of the court to give the instruction as
In refusing the request as made, the court committed no error of which the defendant can complain; but in giving it as modified, it did fall into an error, as has been shown above.
In relation to the seventh request of defendant, we remark that it related to a matter entirely immaterial in this case. The damages recovered are for the benefit of the hеir or heirs, and do not constitute any part of the estate of the deceased. (Leggoit v. Great Northern R’y Co., 1 Q. B. Div. 599; Chicago etc. R. R. Co. v. Morris,
For the errors above pointed out, the judgment is reversed, and the cause remanded for a new trial.
McFarland, J., and Fox, J., concurred.
Works, J., concurred in the judgment.
Beatty, C. J., dissented.