128 Mich. 149 | Mich. | 1901
This action is brought to recover damages for the death of Henry Rouse, occasioned by the claimed negligence of the defendant. It appears that Rouse, plaintiff’s intestate, a teamster, was riding with his son-in-law, one Garlick, also a teamster, in an ordinary dirt wagon, along Oakland avenue, in the city of Detroit, on the night of September 6, 1898. The men had been some eight miles out in the country, and about 8 o’clock that night, in returning, they drove along Oakland avenue. The defendant operates a double-track street railway on this avenue. Its cars in going north pass over the east track, and in returning southward in the city pass over the west track. ' Rouse and Garlick entered upon Oakland avenue north of the north terminus of these car tracks, the tracks there forming a “ Y,” so that the cars may turn and proceed back to the city. After the men had driven over the “ Y,”£going south, they saw the car pass them, going north on the east track. It appears' that they knew that the car must turn and follow them south on the west track. They were going south between the west track and a ditch on the west side of the avenue, the street being an unpaved one. The distance between the car tracks and the ditch is in some dispute; the plaintiff’s witnesses putting it between 9 and Í0 feet, and the defendant’s between 10 and 11. The parties could see that there was a ditch along the side of the wagon track, but Mr. Garlick claims they could not tell in the dark how deep or dangerous it was, or how close to their wheels; and there was some evidence tending to show that at places the
It is claimed by the plaintiff that the deceased and his companion expected that the car would go back, and so kept looking around; that Rouse looked around two or three times; that, the last time he looked, he discovered the car not far behind them, coming rapidly; that he called to Garlick to gee out, which Garlick says he did as soon as possible; but that the wagon was struck just north of the alley north of Westminster avenue, and overturned, injuring Mr. Rouse, and from which injuries he shortly after died. It is also the claim of plaintiff that the car was running at a rate of speed of more than 25 miles an hour; that, when the wagon was struck, it was with such force that a new white-oak reach, 5 inches wide by 21-inches thick, was snapped like a pipestem; that the motorman applied the brakes instantly, and yet the car ran 305 feet farther before it could be stopped; that, when the wagon was struck, the horses galloped away; that the car shot past the horses, and, although they were on a gallop or run, they crossed the track behind the car which passed them, 140 feet south of the place of the accident. It is also the claim of the plaintiff that, as soon as the parties discovered the car approaching, Garlick hastened to drive to the edge of the ditch, out of the way of the car, but it was coming with such speed that it was too late to escape it.
It was the claim of defendant that, just before the car
The court submitted the question to the jury under the claims of the respective parties. The jury returned a verdict in favor of plaintiff for $5,550.
The present case falls within the rule laid down in Manor v. Railway Co., 118 Mich. 1 (76 N. W. 139). In that case a woman was driving a covered milk wagon alongside the track, in the ruts made by travel. She heard a hell behind her, and attempted to turn out farther, but, before she could do so, her wagon was struck. It was held that the question of contributory negligence was for the jury. It was said by this court:
“She had a right to drive down the track, just as she did; and if she turned out, or tried to turn out, immediately on the sounding of the gong, she was blameless, and there is no contributory negligence in the case. * * * A man may drive ahead of you with a wagon, * * * but you must wait until your opportunity comes to pass; and the same rule applies to street cars.”
The court instructed the jury in accordance with the rule in the Manor Case.
‘ ‘ I am asked to charge you, and I do charge you, that there can be no recovery in this case for any pain or suffering or other injury of the deceased caused by the accident to Henry Rouse; that the only damage that can be awarded in this case, if the plaintiff is entitled to recover, is the pecuniary injury which has been occasioned by the death of Henry Rouse. * * * If the plaintiff is entitled to recover, she is entitled to recover that pecuniary*154 damage, that actual, money damage, which she has suffered by being deprived of the money which her husband would have given her — given to the family — during his lifetime. In determining how long he should live, you may take into consideration the American Experience Tables, which are published, I think, in Howell’s Statutes, which show the average expectation of life, at his age, 25.99 years; and you may properly find that Mr. Rouse would likely have lived that much longer. Now, the question is what he would have contributed to his family during that time, — what it is probable he would have contributed. You have heard the testimony as to the amount that he had earned. What was it probable that he would have earned in the future, and what portion of his earnings is it probable would have gone to his family ? It is possible, gentlemen, as the children grew up, that they themselves might have contributed to the family, and his own contribution might not have been so much. It is possible that quite the contrary might have been the case, — that his own contribution as the children grew might have been equally large. But all these are questions for you, and not questions for the court. * * * ”
The deceased left surviving him a widow and seven children, — one of them a married woman, the wife of Mr. Garlick. It is the claim of defendant’s counsel that the charge of the court that the damages would be tbe present worth of the sum that deceased would probably have given his family during the period of 25.99 years, his expectation of life, was erroneous, because four limitations were entirely overlooked: (a) The expectation of the life of the widow; (5) the minority of the children; (o) the marriage of one daughter; (d) the earnings of the deceased.
In Hurst v. Railway, 84 Mich. 545 (48 N. W. 46), the question of the measure of damages for the death of a minor is discussed. It was said:
“ There would be a limit upon this, dependent upon the probable duration of the lives of the parents, as no estimate of such prospective earnings [of the son] could extend beyond the expectancy of the lives of the parents and the survivor of them.”
In that case the measure of damages was also limited to
The law requires in this class of cases that the administrator must show that some person has suffered some pecuniary injury, by the death. The statute does not imply that damages and pecuniary loss necessarily flow from the negligent killing. This is a matter that must be made to appear by the proper allegation in the declaration, and proof of the fact. Hurst v. Railway, supra. See, also, Nelson v. Railway Co., 104 Mich. 588 (63 N. W. 993); Walker v. Railway Co., 104 Mich. 616 (63 N. W. 1032). These damages must be limited to the pecuniary damage sustained by those legally entitled to support. Van Brunt v. Railroad Co., 78 Mich. 530 (44 N. W. 331).
We think counsel for defendant correct in saying that these limitations should have been stated to the jury. Damages should have been limited to the expectation of the life of the widow. As to the children, no damages could be recovered for their support after they each became of age, and none for the maintenance of the married daughter. The court should also have instructed the jury that the amount of the recovery must be based upon the earning capacity of Mr. Rouse as shown by the testimony; that it would be the present worth of the sum of money he might earn during his expectancy of life and devote to his family, but limited by the expectancy of the life of the widow, if her expectancy of life was less than that of her husband, and the minority of the children, so far as they were concerned in the fund. We do not pass on the'question whether damages might be allowed for a dependent child after he becomes of age.
For this error in the charge, the judgment must be reversed, and a new trial ordered.