United States Electric Lighting Co. v. Sullivan

22 App. D.C. 115, 1903 U.S. App. LEXIS 5517

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 2, 1903
• Docket: No. 1268
• Status: Published

Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

1. This action was began under the act oí Congress approved February 17, 1885 (23 Stat. at L. 307) chap. 126, D.- C., Code §§ 1301, 1302, 1303; § 1 of which (Code § 1301) provides: “that, whenever by an injury done or happening within the limits of the District of Columbia, the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured, or, if the person injured be a married woman, have entitled her husband, either separately or by joining with the wife, to maintain an action and recover damages, the person who or corporation which would have been liable if death had not ensued shall be liable to an action for damages for such death, notwithstanding the death of the person injured, even though the death shall have been caused under circumstances which constitute a felony; and such damages shall be assessed with reference to the injury resulting from such act, neglect, or default, causing such death, to the widow and next of kin of such deceased person; Provided, that in no case shall the recovery under this act exceed the sum of ten thousand dollars: And Provided further, that no action shall be maintained under this act in any case when the party injured by such wrongful act, neglect, or default has recovered damages therefor during the life of such party.”

Sec. 2 (Code § 1302) : “That every such action shall be brought by and in the name of the personal representative of such deceased person, and within one year after the death of the party injured.”

Sec. 3 (Code § 1303) : “That the damages recovered in such action shall not be appropriated to the payment of the debts or liabilities of such deceased person, but shall inure to the benefit of his or her family, and be distributed according to the provisions of the statute of distributions in force in the said District of Columbia.”

The declaration of the administratrix alleges in each of its two counts that “the intestate left surviving him as his next of kin, his father, John Hurley, who has suffered great damage by reason of his death,” etc.

As shown in the preliminary statement, the evidence of damage to the father as next of kin was confined to the occasional contributions of the intestate to his support, the partial ineapacity of the father to earn a livelihood, and the probability of the continuation of this assistance had the son continued to live.

The grounds of the motion in arrest of judgment are not disclosed hy the record, but the proposition now is that, under the allegations of the declaration, no right of action accrued to the administratrix of the intestate’s estate hy virtue of the statute aforesaid. In support of the proposition, the contention is that the earnings of the son, present and prospective, if any, belonged to the father, and that he alone has a right of action therefor against the wrongdoer. In our opinion it is quite clear that the father has no right of action in this case independently of the statute.

At common law, the right of a parent to recover for loss of the services of his minor child, like that of the husband for the services of the wife, is limited to the time that may have elapsed, if any, between the time of the injury giving rise to the action, and the resulting death. The right to the services, in either case,, terminates with death, and the estimate of damages ceases therewith. Baker v. Bolton, 1 Campb. 493; Osborn v. Gillett, L. R. 8 Exch. 88, 92; Carey v. Berkshire R. Co. 1 Cush. 475, 48 Am. Dec. 616; Eden v. Lexington & F. R. Co. 14 B. Mon. 204, 206; Louisville & N. R. Co. v. McElwain, 98 Ky. 700, 702, 34 L. R. A. 788, 34 S. W. 236; Quin v. Moore, 15 N. Y. 432, 433; Hyatt v. Adams, 16 Mich. 180, 184; Scheffler v. Minneapolis & St. L. R. Co. 32 Minn. 125, 19 N. W. 656; Stewart v. Louisville & N. R. Co. 83 Ala. 493, 4 So. 373; Davis v. St. Louis, I. M. & S. R. Co. 53 Ark. 117, 127, 7 L. R. A. 283, 13 S. W. 801.

It is manifest also that no action could be maintained in the-name of intestate’s father under the statute, because it is expressly declared that “every such action shall be brought by and in the name of the personal representative of such deceased person.” Western U. Teleg. Co. v. Lipscomb, ante, p. 104.

. It follows, therefore, that if the action in this case cannot bo maintained by the personal representative of the intestate for the ultimate benefit of the father, who is the next of kin, and alone has been shown to have sustained any injury by the death of the son, the judgment ought to be arrested, for the remedy of the statute goes no farther.

The act of the British Parliament, known as Lord Campbell’s act, recites in its preamble the failure of the common law to furnish an action for injuries resulting in death, and proceeds to provide a remedy by giving an action, to be brought in the name of the personal representative of the person whose death shall have been caused by wrongful act, neglect, or default, for the benefit of the wife, husband, parent, and child of such person. This act, said Lord Chancellor Selbome, “gives a new cause of action clearly, and does not merely remove the operation of the maxim, actio personalis moritur cum persona, because the action is given in substance not to the person representing, in point of estate, the deceased man, who would naturally represent him as to all his own rights of action which could survive, but to his wife and children, no doubt suing in point of form in the name of his executor.” Seward v. Vera Cruz, L. R. 10 App. Cas. 59, 67.

Lord Campbell’s act has been adopted in every State of the Union, with more or less change in respect of the persons to be benefited, the designation of the parties in whose name the action shall be brought, and the measure of damages to be recovered. Under these various statutes multitudes of actions have been maintained on behalf of surviving parents, for damages sustained through the death of children, whether infants or adults, to whose services they had a right, legal or otherwise, to look for support or assistance; and in no case that we have been able to discover has recovery been denied on the ground under consideration.

The action does not depend at all upon the fact whether the next of kin — parent, or brothers and sisters, as the case may he —shall have a legal claim upon the services of which they have been deprived by the wrongful act of the defendant. Illinois C. R. Co. v. Barron, 5 Wall. 90, 106, 18 L. ed. 591, 595; District of Columbia v. Wilcox, 4 App. D. C. 90, 119. And although it might be possible, under the terms of our statute, which requires recovery in solido, that a judgment founded chiefly on proof of special damage to one of the next of kin would have to he shared finally with others less meritorious, that fact is one that in no wise concerns the wrongdoer. District of Columbia v. Wilcox, 4 App. D. C. 90, 122.

We are of the opinion, therefore, that the motion in arrest of judgment was properly overruled.

2. There was no error in refusing the prayer to direct a verdict for the defendant on the ground that the evidence was not sufficient to warrant the submission of the question of its negligence to the jury.

We see no occasion to discuss the evidence relating to the manner in which the service wires for the lighting current had been protected when carried into the building, or to the probable manner in which that protection may have been destroyed by the acts of the owner of the building or his employees.

Nor is it of any consequence to consider whether there was any ground for the inference of negligence from the failure of the defendant to remove the service wires after the lights maintained thereby had been discontinued.

Had the defendant stopped the flow of the deadly current into the premises through those useless service wires, by means of the switch provided for that purpose in the street, no injury could possibly have occurred from the destruction of the insulation. The failure to exercise this simple precaution led to the death of two persons, and might at any time have caused a destructive conflagration. It was plainly a question for the jury to determine whether, under all the circumstances, the failure of the defendant to cut off the current constituted negligence.

3. The next assignment of error is based on- the refusal of the court to direct a verdict for the defendant on the ground that it appeared conclusively, from all the evidence submitted, that the death of plaintiff’s intestate was the direct result of his own negligence.

Several special prayers directing the attention of the jury to certain leading facts from which, it was declared, contributory negligence was a necessary inference, were then asked and refused ; but these may be considered as embraced in the general proposition.

The rule of determination in cases like the present has been thus stated by the Supreme Court of the United States: “What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular ease, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court.” Grand Trunk R. Co. v. Ives, 144 U. S. 408, 417, 36 L. ed. 485, 489, 12 Sup. Ct. Rep. 683; see also Texas & P. R. Co. v. Gentry, 163 U. S. 353, 368, 41 L. ed. 186, 193, 16 Sup. Ct. Rep. 1104.

The controlling fact upon which the appellant rests its contention is, that the deceased went into the cellar with knowledge that, two and one-half hours before, another able-bodied man had met sudden death therein through coming in contact with the electric current. It may be conceded that from this fact many reasonable minds might come to the conclusion that his death was the result of his neglect of ordinary care. But the question is, Would all reasonable men. come to that conclusion upon a full and fair consideration of all the facts in evidence ?

What constitutes negligence can not be laid down as a rule for every case, but, as we have seen, necessarily depends upon the special circumstances and conditions of the particular ease under investigation. In order to reach a just conclusion in each particular case, reasonable effect must be given to every legitimate inference that, may be deduced from the facts in evidence, as well as from all the circumstances surrounding the occurrence and tending-to shed any light upon it.

It is reasonable and just to consider the conditions, and the force of the obligation of the service in which the deceased was engaged at the time, as influencing his conduct.

It was important to the business of the employer that the cellar should be visited, and Broderick, the manager in the absence of the common employer, did not consider the act as necessarily one of imminent danger. That he requested first one and then another of his assistants to enter the cellar, may be slight evidence of his belief, but it is some. However, when one of these refused, rather from superstition than fear of bodily harm, he gave the best evidence of his belief by going himself.

Broderick was presumably a man of average capacity, familiar with the premises, and, moreover, apparently sober. Deceased saw him descend into the cellar in safety, and followed him to the place where the work was to be done. On the way out, deceased, in some manner unknown, came in contact with the fatal current.

We have not the case, then, of one walking deliberately into apparent danger, without necessity, and when others, to his knowledge, refused because of that danger, but of a subordinate who followed in the footsteps of an older and more experienced man who was the managing agent of his employer. The concurring acts of two men of average intelligence proportionately increase the difficulty of declaring, as matter of law, that the act of one — especially one who followed where an older and more experienced man led the way — constituted contributory negligence, taking away any right of recovery founded on the preceding negligence of the defendant.

These special circumstances were sufficient, in the opinion of the trial court, to warrant the submission of the issue to the jury. In the ease of doubt, always, the determination of the question falls within the province of the jury. We are not prepared to say that it was error to refuse the defendant’s motion and special prayers.

4. The fourth assignment of error relates to the measure of damages given in charge to the jury. The contention of the appellant, whose special prayer to that effect was denied, is that the recovery on behalf of the father is limited to such sum as he might reasonably have expected to receive from the son during the residue of his minority, had he continued to live.

The charge given, instead, was that “the plaintiff is entitled to recover such sum as will fairly and reasonably compensate the father of the decedent for any financial loss * * * sustained by reason of the decedent’s death; such loss to be measured by such sum as the evidence may show the said father would have probably received from the decedent had he continued to live.”

We are of the opinion that there was no error in the charge to the jury. As has been said by Mr. Justice Nelson: “The damages in these cases whether the suit is in the name of the injured party, or, in the case of his death, under the statute by the legal representative, must depend very much on the good sense and sound judgment of the jury upon all the facts and circumstances of the particular case. If the suit is brought by the party, there can be ho fixed measure of compensation for the pain and anguish of body or mind, nor for the loss of time and care in business, or the permanent injury to health and body. So, when the suit is brought by the representative, the pecuniary injury resulting from the death to the next of kin is equally uncertain and indefinite. If the deceased had lived, they may not have been benefited, and if not, then no pecuniary injury could have resulted to them from his death. But the statute in respect to this measure of damages seems to have been enacted upon the idea that, as a general fact, the personal assets of the deceased would take the direction given them by the law, and hence the amount recovered is to be distributed to the wife and next of kin in the proportion provided for in the distribution of personal property left by a person dying intestate. If the person injured had survived and recovered, he would have added so much to his personal estate, which the law, on his death, if intestate, would have passed to his wife and next of kin; in case of his death by the injury, the equivalent is given by a suit in the name of his representative. There is difficulty in either case in getting at the pecuniary loss with precision or accuracy, more difficulty in the latter than in the former, but differing only in degree, and in both cases the result must be left to turn mainly upon the sound sense and deliberate judgment of the jury.” Illinois C. R. Co. v. Barron, 5 Wall. 90, 105, 18 L. ed. 591, 595.

That case arose under a statute of the state of Illinois, which, though differing slightly in phraseology, is substantially similar in all its important provisions to the act of Congress which was enacted after its decision.

Under the New York statute, which also limits the damages to be assessed for the benefit of the widow and next of kin to “a fair and just compensation for the pecuniary injuries resulting from the decedent’s death,” it was said by the court of appeals of that state: "In but few cases arising under this act is the plaintiff able to show direct, specific, pecuniary loss, suffered by the next of kin from the death; and, generally, the basis for the allowance of damages has to be found in proof of the character, qualities,. capacity, and condition of the deceased and in the age, sex, circumstances, and conditions of the next of kin. The proof may be unsatisfactory, and the damages may be quite uncertain and contingent, yet the jurors in each' case must take the elements thus furnished and make the best estimate of damages they can.” Lockwood v. New York, L. E. & W. R. Co. 98 N. Y. 523, 526. See also, Birkett v. Knickerbocker Ice Co. 110 N. Y. 504, 508, 18 N. E. 108.

In numerous other cases that might be cited, the same liberal rule for the ascertainment of damages to next of kin has been followed as necessary to give any practical effect to the remedial purpose of such legislation. In many of these, where the deceased was an infant (sometimes of tender years), the recovery has not only been permitted to include probable pecuniary injury, founded on a legal claim to the deceased infant’s services during minority, but also that which might be fairly estimated with reference to the reasonable expectation of the continuance, to some extent, of those services after majority, founded on conditions of age, feeble health, and poverty reasonably sufficient to create a strong moral obligation on the part of the child. Baltimore & O. S. W. R. Co. v. Then, 159 Ill. 535, 539, 42 N. E. 971; Illinois C. R. Co. v. Slater, 129 Ill. 91, 100, 6 L. R. A. 418, 21 N. E. 575 ; Johnson v. Chicago & N. W. R. Co. 64 Wis. 425, 431, 25 N. W. 223; Thompson v. Johnston Bros. Co. 86 Wis. 576, 586, 57 N. W. 298; Thoresen v. La Crosse City R. Co. 94 , 68 N. W. 548; St. Louis, I. M. & S. R. Co. v. Davis, 55 Ark. 462, 467, 18 S. W. 628; Birkett v. Knickerbocker Ice Co. 110 N. Y. 504, 508, 18 N. E. 108; Atchison, T. & S. F. R. Co. v. Cross, 58 Kan. 424, 428, 49 Pac. 599; Gulf, C. & S. F. R. Co. v. Compton, 75 Tex. 667, 674, 13 S. W. 667.

The plaintiff in this case offered no prayer for damages founded on any legal claim which the parent might have to the services of the deceased son during the residue of his minority; on the contrary, by proof under the general allegation of damage, the entire claim was based on the reasonable expectation that the deceased, who at intervals had made voluntary contributions to the parent, would, if his life had not been taken, continue his contributions to the parent’s support during the probable duration of the latter’s life.

The deceased, though lacking nearly two years of the attainment of majority, had been practically emancipated by the father; for it appears that the latter had consented to his leaving home, had attempted to make no contract for his services in the new home, had permitted him to make his own contracts for labor, and instead of demanding the proceeds of the same, had contented himself with accepting such sums as the son had voluntarily contributed therefrom to his assistance.

This state of facts put the claim for recovery upon substantially the same basis as if the deceased had been an adult; hence, the prayer asked by the defendant had no application.

Considering the case as if the deceased had been an adult, a ground of recovery is furnished that has been generally upheld under statutes of the same general purport. In addition to authorities before cited, see District of Columbia v. Wilcox, 4 App. D. C. 90; Tiffany, Death by Wrongful Act, § 168.

Tested by the rule heretofore stated, the charge of the court, to which exception was taken, must be approved as correct, and applicable to the evidence, which showed some pecuniary damage, the amount of which, uncertain as its ascertainment might be, was for the determination of the jury, subject to the supervising power of the trial justice in case of an excessive verdict.

5. The rule for the ascertainment of damages that has been approved clearly indicates the competency of the evidence tending to show the age, feeble health, burdens, and poverty of the father of deceased, the admission of which was also made the ground of exception. This was rightly admitted as affording some aid to the jury in determining the reasonable-probability of the continuance of the contributions of the deceased during the life of the father. Thompson v. Johnston Bros. Co. 86 Wis. 576, 586, 57 N. W. 298; Thoresen v. La Crosse City R. Co. 94 Wis. 129, 133, 68 N. W. 548; Missouri P. R. Co. v. Peregoy, 36 Kan. 424, 431, 14 Pac. 7; Little Rock, M. R. & T. R. Co. v. Leverett, 48 Ark. 333, 344, 3 S. W. 50; Illinois C. R. Co. v. Crudup, 63 Miss. 291, 303; Houston City Street R. Co. v. Sciacca, 80 Tex. 350, 355, 16 S. W. 31; Birkett v. Knickerbocker Ice Co. 110 N. Y. 504, 508, 18 N. E. 108; Baltimore & P. R. Co. v. Mackey, 157 U. S. 72, 92, 39 L. ed. 624, 631, 15 Sup. Ct. Rep. 491. Such evidence, clearly inadmissible in ordinary actions for damages, where it is calculated to arouse the sympathies -of the jury without furnishing any legal element of damage, stands upon essentially different grounds when offered in a case like the present, brought under the. statute. The distinction between the two classes of cases is clearly pointed out in the case last cited, which arose in the District of Columbia,

The judgment must be affirmed with costs; and it is so ordered. Affirmed,.