Action of trespass on the'case commenced in June, 1886, by T. M. Harbour, as. administrator of Daniel Searles deceased, against the Kanawha & Ohio Railway Company in the Circuit Court of Mason county. There was a demurrer to the declaration, which was sustained ; and then.an amended declaration was filed, to which and to each count thereof the defendant demurred, and this demurrer was overruled. Issue was joined on the plea of not guilty and upon two special pleas denying, that the plaintiff was or ever had been administrator of Searles. The action was tried by jury, and a verdict returned for the plaintiff for $3,000.00, which the defendant moved the court t© set aside; but the court overruled this motion and entered judgment on the verdict,, and the defendant obtained this writ of error.
The defendant in error, complains, that the Circuit Court erred in sustaining the demurrer to the original declaration.. The record shows, that, after the court sustained this demurrer, the plaintiff was given leave to file and amended declaration, which he afterwards did without objection. This'operated as a waiver of any objection to the action of the court in sustaining said demurrer, an the amended declaration, when filed, superseded the original and become the only declaration in the case. It is too late to make an objection of this character for the first time in the appellate court.
The plaintiff in error, the railway company, insists, that the court erred in overruling the demurrer to the amended declaration : ñrst, because each of its three counts are bad,
1. Each count of the declaration after alleging, that the plaintiff’s intestate was killed by the negligence of the defendant while being carried as a passenger upon one of its trains, avers, that by reason of the premises the said widow and children of the decedent (naming each of them) have sustained damages to the amount of $10,000.00. And in its general conclusion the declaration avers, that by reason of the matters contained in the first, second and third counts and by force of the statute an action has' accrued to the plaintiff, as administrator as aforesaid, to have and demand from the defendant damages to the amount of $10,000.00. In Railroad Co. v. Gettle,
It is further assigned as error by the plaintiff in error, that the court improperly refused to instruct the jury, that the evidence of the plaintiff was insufficient to prove, that the plaintiff was or ever had been legally appointed administrator of Daniel Searles. In order to prove such appointment the plaintiff introduced an' order of the County Court of Putnam county dated M.arch 15, 1886, in these words: “The clerk of this court presented here a list of fiduciary appointments by him made in vacation since the first day of the last regular term of this court, which list being seen and inspected by the court, it is ordered, that each of the appointments be, and the saméis hereby, confirmed,” In connection with this order the plaintiff’ read in evidence a
The court gave to the jury eight instructions at the instance of the defendant and the same number at the request of the plaintiff. To the giving of the latter or any of them the defendant objected; but no objection is made to any.of them in this Court except Ros. 2, 5, 6, and 7, which arc in these words :
“(2) The law in tenderness to human life and limbs holds railroad companies liable for the slightest negligeuce and compels them to repel by satisfactory proofs every imputation of such negligence. When carriers undertake to convey passengers by the powerful but dangerous agency of steam, public policy and safety require, that they be held to the greatest possible care and diligence. Any negligence or default in such cases makes such carriers liable in damages under the statute.”
“(5) Said railroad company is held by the law to the utmost care not only in the management of its trains and ears but also in the structure, repair and care of the track and bridges and all other arrangements necessary to the safety of passengers.
(6.) The jury are instructed, that in estimating the pecuniary injury they may take into consideration the .nurture, instruction and physical, moral and intellectual training, which the children would have received from their father.
Of the said instructions, Nos. 2 and 5 are literal copies of instructions given and approved by the appellate court in Railroad Co. v. Wightman,
It is however earnestly insisted by the counsel for the plaintiff in error, that the concluding seutenee of said instruction No. 2, to-wit: “Any negligence or default in such cases makes such carriers liable in damages under the statute,” — is unquestionably wrong, because to justify a recovery two things must concur: first, negligence by the defendant; and second, such negligence must have contributed to the injury sustained. It is certainly true, that it is the conjunction of the negligence and the injury, which creates the tort. Mere negligence does not become an actionable wrong, unless the other element is found in the same case, namely, an injury or damage suffered in consequente of the negligence or wrong. Cooley on Torts, 62; 2 Greenl. Ev. § 256. It is therefore, apparent that this sentence taken alone does not propound a correct legal proposition; but, if considered in connection with the other instructions submitted with it, in one of which the jury were told, that, if they find from the evidence, that the negligence of the defendant in now.ise contributed to or occasioned the accident,
“The charge of the judge was explicit, that the damages must he limited to pecuniary injuries; and he said, that in estimating them they had a right to consider the loss, that is the pecuniary loss, which the children had sustained in reference'to their mother’s nurture and instruction, and moral, physical and intellectual training. I think this docs not imply, that the children are necessarily and inevitably subjected to such loss, but leaves it to the jury to determine, whether any such loss has been in fact sustained, and, if so, the amount of such loss. This is the fair scope and meaning of the charge, and, if it was not sufficiently explicit, it should have been made so by a direct request for such purpose. This understood, I regard it as unexceptionable.” Tilley v. Railroad Co.,29 N. Y. 285 . * * * * “Nor do I think it was erroneous to instruct the jury, that, while they must assess the damages with reference to the pecuniary injuries sustained by the next of kin in consequence of the death of*377 Mrs. Tilley, they were not limited to the losses actually sustained aiTne precise period of her death, but might include mso prospective losses, provided they were such as the jury believe from the evidence would actually result to the next of kin as the proximate damages arising from the wrongful death,” — citing Tilley v. Railroad Co., Tilley v. Railroad Co.,29 N. Y., 285 ,24 N. Y. 473 -477.
The foregoing views fully sustain the instructions here complained of, and, I think, they are consonant with reason and the purpose of the statute ; and, if correct in that case, they are more truly so in the case at bar, because our statute does not like the Yew York statute, limit the compensation “to the pecuniary injuries resulting” etc., but it provides: “In every such action the jury may give such damages, as they shall deem fair and just not exceeding ten thousand dollars.” Code 1887, c. 103, s. 6. It will thus bo observed, that our statute does-not in terms limit the jury to giving compensation for pecuniary injuries, though such is perhaps its purpose and implied meaning; but still, as it is not express, the limitation ought not to be applied strictly.
It is further contended, that instruction Yo. 6 was improper, because there was no evidence tending to support it. This is a mistake. There was evidence submitted to the jury, that the decedent was forty two years old, made his living by days’ work and laboring on his farm, had a wife and nine children, all of whom were living at the time of the trial; the oldest child was nineteen years of age', "and the youngest sixteen months; that he was a church member, moral, religious and industrious in his habits, a kind husband and parent and had been sending his children to school. As was said by this court in Dimmey v. Railroad Co.,
A new trial was not asked on the ground that the verdict was contrary to the evidence, but only upon the ground that the court mis-directed the jury. Having determined, that there was no error in the instructions to the jury, we must hold, that the motion for a new trial was properly overruled. If we had been asked to set aside the verdict on the ground, that it was not sustained by the evidence, wc should have refused to do so, because the evidence, to say the least of it, does tend to support the verdict, and, this being a case involving negligence, which is a mixed question of law and fact, and one peculiarly within the province and control of the jury, we would not disturb the verdict, unless the facts distinctly showed, that there was no negligence. Washington v. Railroad Co.,
Having found no error, for which the judgment of the Circuit Court should be reversed, I am of opinion, that said judgment should be affirmed.
AFFIRMED,