46 Neb. 4 | Neb. | 1895
This is a petition in error and presents for review a judgment of the district court for Fillmore county. The action below was to recover damages on account of the killing of the plaintiff's intestate, Maria Tatro, by an engine operated by the defendant company on the 26th day of June, 1891. At the trial below, before Hastings, J., and a jury, there was a verdict for the defendant at the conclusion of the plaintiff's evidence by direction of the court, and which ruling is the basis of this proceeding.
The facts which the plaintiff’s evidence tends to establish are as follows: On the day of the accident the deceased purchased a ticket from the defendant's station agent at Grafton, good to Denver, Colorado, intending to take passage on the regular west-bound passenger train. On being-advised by the agent that the train was two hours and twenty minutes late she decided not to wait at the station,, and accordingly returned to the village south of the railroad track, going to the house of a friend, Mrs. Haney, and from thence to the store kept by a Mr. IPaney. About an hour and a half or au hour and three quarters after the deceased had returned to the village, an extra or wild train approached the station running at a high rate of speed, estimated by some witnesses at thirty-five miles per hour. Regular warning was given of the wild train, and the witnesses agree that the engine whistle was sounded continuously from the time the train reached the first cross street of the village until it had passed the station, and also that the bell was ringing. At the first sound of the whistle the deceased and Mrs. Haney ran hurriedly toward the station, nearly a quarter of a mile distant. As they ap
The only allegation of the petition as to the next of kin of the deceased is the following: “ The plaintiff is the father and next of kin of Maria Tatro, a single woman, who died without issue at the county of Fillmore, Nebraska, on the 26th day of June, 1891, intestate, and on the 29th day of September, 1892, letters of administration were duly issued ±o the plaintiff by the county court of Fillmore county, and plaintiff has duly qualified as such administrator and entered upon the duties of his office, and as such administrator brings this suit.” It is by chapter 21, Compiled Statutes, provided:
“Section 1. That whenever the death of a person shall be caused by the wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then, and in •every such case, the person who, or company or corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.
“Sec. 2. That every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin. of such deceased person, and shall be distrib*8 uted to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries, resulting from such death, to the wife and next of kin of such deceased person, not exceeding the sum of five thousand dollars; Provided, That every such action shall be commenced within two years after the death of such person.”
It has been frequently held that a petition which does not disclose the existence of some person who has suffered pecuniary injury by the death of the deceased or to whom he would have contributed in a pecuniary way, fails to state a cause of action under the foregoing provisions. (Topping v. Town of St. Lawrence, 86 Wis., 526; Coops v. Lake S. & M. S. R. Co., 66 Mich., 448; Hurst v. Detroit City R. Co., 84 Mich., 539; Charlebois v. Gogebic & M. R. Co., 91 Mich., 59 ; Anderson v. Chicago, B. & Q. R. Co., 35 Neb., 95, and cases cited.) We have not overlooked the following expression of the present chief justice in the last mentioned case: “Under the proof they [the jury] were warranted in inferring that the next of kin were not pecuniarily injured by the death of the intestate, hence the plaintiff was only entitled to recover nominal damages.” But that language was used with reference to the case then before the court, by which it was sought by the plaintiff below to reverse a judgment for nominal damages, and in nowise conflicts with the rule here approved, while in Hurst v. Detroit City R. Co., supra, it is expressly decided, on the authority of Franklin v. South E. R. Co., 3 Hurl. & N. [Eng.], 213, and Duckworth v. Johnson, 4 Hurl. & N [Eng.], 653, that nominal damages are not recoverable in like cases in the absence of an allegation and proof of pecuniary injury to the next of kin or others beneficially interested in the life of the deceased. Nor was the plaintiff more fortunate
Affirmed.