33 P. 710 | Ariz. | 1893
This action is brought under the provisions of title 36 of the Revised Statutes of 1887, entitled “Injuries Resulting in Death.” Plaintiff, Bertha Tomlinson, as the widow of Thomas Tomlinson, deceased, brought suit in her own name against the Southern Pacific Company, for the benefit of herself, as surviving wife, as well as for the children and parents of the deceased, to recover damages sustained by the death of said deceased, which occurred, as alleged, by reason of the negligence of the defendant. In addition t-o a special verdict, the jury returned a verdict for plaintiff in the sum of fifty thousand dollars, which amount was apportioned among the beneficiaries named in the complaint as follows: Bertha Tomlinson, plaintiff, eight thousand dollars; Fenton Tomlin-son, father, five thousand dollars; Mary Tomlinson, mother, five thousand dollars; Alice Tomlinson, child, eight thousand dollars; Fenton Tomlinson, child, eight thousand dollars j
As to the right of the nominal plaintiff, in an action for damages on account of injuries causing death, we are notched to any authorities directly in point. Independent of the statute, the right to maintain such action does not exist. We are therefore left in determining this question solely to a consideration of the sections of the statute which bear upon the question. Paragraph 2149 of the Revised Statutes, being section 5 of said title 36, provides that “the action shall be for the sole and exclusive benefit of the surviving husband, wife, children, and parents of the person whose death shall have been so caused, and the amount recovered therein shall not be
The refusal of the trial court at the close of plaintiff’s case to direct the jury to return a verdict for the defendant, at the request of defendant, is assigned as error. The deceased, Thomas Tomlinson, a merchant living in the village of Casa Grande, A. T., about nine o’clock in the evening of June 24, 1891, while crossing the railroad track of defendant, within the confines of said village, was struck by a passing freight engine, and died soon after from the injuries received. The testimony on the part of plaintiff tended strongly to show that at the time of the accident the train, which was a special freight, was running at a high rate of speed, and that, contrary to the custom of defendant, and- in violation of the provisions of paragraph 322 of the Revised Statutes of 1887, no bell was rung, or other warning given of its approach. The village of Casa Grande extends along on each side of the defendant’s track, which runs at this point in an east-and-west direction. South of the track, and facing it, is a row of dwellings, in one of which deceased was living, while north of the track are a number of business houses, one of which was the store of deceased. It was shown that the place where the deceased was struck was used as a crossing by him and the other residents living south of the track, in going to and from the north side. At this point there is the main track, and on each side a sidetrack. Prom the south side the view of the track to the east, from which direction the train which struck deceased was coming, was open and unobstructed for a considerable distance. On the north side, extending east from the place of the accident, for some distance along the side-track was a large
Counsel for appellant urge in their brief that the request should have been granted for the reason that plaintiff fails to show due care and caution on the part of deceased in attempting to cross the track at the time of the accident. The rule in this territory, as declared by the supreme court in the case of Lopez v. Mining Co., 1 Ariz. 464, 2 Pac. 748, is, that in actions for personal injuries, where contributory negligence is relied upon as a defense, due care and caution on the part of plaintiff, in the absence of affirmative proof to the contrary, will be presumed, and the burden of proving such contributory negligence rests upon defendant. The same rule has been applied by the supreme court of the United States. Railroad Co. v. Gladmon, 15 Wall. 401; Railroad Co. v. Horst, 93 U. S. 291. In actions for damages in injuries causing death the same rule prevails as in ordinary actions for damages for personal injuries. We think the trial court very properly
Gooding, C. J., and Wells, J., concur.