District of Columbia v. Wilcox , 4 App. D.C. 90 ( 1894 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

This action was brought by Mary R. Wilcox, as administratrix of the estate of General Cadmus M. Wilcox, deceased, against the District of Columbia, to recover damages, alleged to have been sustained by the plaintiff by reason of the alleged wrongful act, neglect or default of the defendant, or those acting by its authority, resulting in the death of the intestate, General Wilcox. The action is brought under the Act of Congress of February 17, 1885, 23 Stat. at Large, 307, relating to the District of Columbia, which provides that whenever the death of a person shall be caused by any wrongful act, neglect or default, which, if death had not ensued, would have entitled the party injured to maintain an action and recover damages in respect thereof, 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, although the death may have been caused under such circumstances as constitute in law a felony; and in such action, “ the 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,” — the recovery in no case to exceed $10,000.

In the second section it is provided, that such action shall be brought by and in the name of the personal representative of such deceased person, within one year; and by the third section it is provided that the damages recovered shall not be applied to the payment of debts of the' deceased, “ 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 District of Columbia.”

The prototype of this act, and of the acts of the several States of the Union upon this subject, is found in the act of 9 and 10 Viet., C. 93, passed in 1846, and known as Lord Campbell’s Act. The English statute, however, instead of making the recovery to the use of the widow and next of kin of the deceased, as has been done in the act of Congress of 1885, authorizes the recovery in the name of the personal representatives of the deceased, for the benefit of the wife, husband, parent and child of the deceased person, and the amount of recovery, after deducting costs, is required to be divided among the relatives mentioned in such shares as the jury by their verdict shall find and direct; and a similar provision is found in some of the State statutes upon this subject. All these statutes, however, were intended to supply a remedy not afforded by the common law, and in respect to which the common law was deemed defective.

The declaration in this case contains three counts, all substantially alike; and after setting forth the cause of the accident, the breach of duty of the defendant in not keeping the streets in safe condition, and the manner in which the accident occurred, and the nature of the injury received of which General Wilcox died, it then alleges that the deceased died intestate, and that he left no widow or children, but left surviving him as his only next of kin his nephew, Andrew D. Wilcox, and his niece, Mary K.. Wilcox, for whose use and benefit this suit is brought; and that, at the time of his death, the said General Wilcox held a position in the service of the United States that paid him an annual salary of $1,800 ; that the plaintiff obtained letters of administration upon the estate of the deceased, and she avers that she is damaged by the wrongful act, negligence and default of the defendant, its agents and servants, in the sum of ten thousand dollars; wherefore she brings this suit, and claims of the defendant the sum of ten thousand dollars damages, besides costs of suit.

The defendant pleaded the general issue of not guilty, upon which issue the case was tried. The case is brought into this court on a bill of exception, containing the stenographic report of the entire trial, and everything that occurred in the course of it, covering considerably more than three hundred closely printed pages of record, while all the facts material to the questions to be decided on this appeal could easily have been compressed in less than twenty pages. We regret very much that records should be made up in this form ; for, to say nothing of the labor and difficulty of culling out the material fapts from the great mass of immaterial matter, the cost is made very unnecessarily onerous to the losing party — a matter that should be avoided in all cases.

The material facts of the case, briefly stated, are these: The District of Columbia gave a permit to the Eekington Railroad Company to lay certain tracks upon G street, N. W., in the city of Washington, and that company contracted with the Cranford Paving Company to do certain excavating and filling necessary for the purpose of laying the tracks of the road. In the prosecution of this work certain cuts or excavations were made on G street across the intersection of that street with Fourteenth stréet, N. W., for placing therein the rails of a double line of street railroad along said G street. On the 26th of November, 1890, about 6 o’clock in the evening, General Wilcox, while walking on Fourteenth street from its intersection with New York avenue south towards F street and across G street, stepped his foot in one of, the cuts or excavations thus made on G street and was thrown down, and his head striking the side of one of the other cuts, he received a very severe blow on the. side of his head, causing, as it was supposed, a rupture of a ■ bloodvessel over the brain, and from which injury he died intestate on the 2d day of December, 1890. The contested question of fact was, whether the cuts or excavations at the crossing were properly lighted and guarded by signals to prevent accidents to persons using ordinary care in passing on the streets at night.

General Wilcox had never been married, and his only next of kin were his nephew7 and niece, the latter being the plaintiff in this cause. His estate was exceedingly small, but he was in the receipt of an annual salary of $1,800 from the Government.

The trial resulted in a verdict for the plaintiff for $5,416, and there was a motion for a new trial, and also a motion in arrest of judgment. The court required a remittitur of $416, and that being entered, the motion for a new trial was overruled, and the verdict allowed to stand for $5,000. The motion in arrest of judgment was also overruled.

In the course of the trial a great many exceptions were informally noted to rulings upon questions of the admissibility of evidence, but these exceptions were noted in the greater number of instances, because of the supposed insufficiency in the averments of the declaration to allow of the admission of the facts offered to be proved by the evidence objected to. And for the same reason, at the conclusion of the evidence, the defendant prayed the court to instruct the jury, that the facts stated in the declaration were not sufficient to enable the plaintiff to recover, and the verdict should be for the defendant; and, in the same connection, the defendant further prayed the court to direct the jury that the evidence adduced by the plaintiff "was not sufficient to permit her to recover, and the verdict should be for the defendant. These requests were refused, and the defendant excepted.

The defendant then offered a series of prayers for instruction to the jury on the facts. Some of these prayers were refused, but substitutes given therefor in the general charge ; others were refused altogether; but the seventh and eighth prayers, the objects of which were to define and limit the inquiry of the jury and to declare, if the jury should find for the plaintiff, -for what damages could be given, and for what they could not be given, were granted and read as part of the general charge. The court gave a full and extended charge to the jury, in which all the essential facts of the case were adverted to, and the limitations as defined in the granted prayers of the defendant were observed upon and explained to the jury. At the conclusion of the charge» various parts of it were designated by the defendant, to which exceptions were noted.

In the brief for the defendant, many errors are assigned ; but the questions that would seem to be important, and which embrace many of the minor questions that have been made may be reduced to three or four, and they are:

1st. Whether the declaration is sufficient upon which to found a recovery ? — and subordinate to this—

2d. Whether evidence should have been admitted touching the amount of probable loss sustained by the plaintiff when no special allegation of injury sustained is made in the declaration ?

3d. Whether it was error in the court to restrict the recovery to the probable loss sustained by the niece, regardless of the nephew ?

4th. Whether the court erred in refusing to grant the third and fourth prayers of the defendant, as to the negligence of the defendant, and the contributory negligence of the deceased in producing the accident that caused the death without the explanation or qualification thereof contained in the general charge to the jury?

There is another assignment made, but that is contended for as a consequence of the preceding assignment; and that is, that the court erred in not directing a verdict for nominal damages only.

1. With regard to the first assignment of error, that presents a question of pleading, and it is attempted to be raised by the motion in arrest of judgment, and also by the motion to have the jury instructed that the declaration did not aver sufficient facts to entitle the plaintiff to recover. But neither of these motions could prevail if the declaration disclosed any ground for recovery whatever. The contention is, that it should have been alleged in the declaration that the next of kin of the deceased, entitled under the statute, had sustained pecuniary loss by reason of the death of the uncle; that the right to recover can only exist in respect of special damages sustained, and that such special injury must be averred as well as proved. And this, upon strict common law principles of pleading, would seem to be unquestionably true. Blake v. RR. Co., 18 Q. B. 93. But this is an action founded upon a statute, and in the Federal courts, at least, the declaration used in this case would seem to be fully sanctioned.

The statute of the State of Illinois of 1853, upon this subject, is substantially similar to the act of Congress of 1885, under which this suit is brought. By the Illinois statute the right of action is conferred on the personal representative of the deceased, and it is provided that 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 distributed to such widow and next of kin in the proportions 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 $5,000.

It is thus seen that while there are some slight differences in the phraseology of the two acts, the acts are substantially similar in their provisions with respect to the parties entitled, and as to the mode of procedure. It is very clear, we think, that the meaning of the word “ family,” used in the act of Congress, embraces all those who would be entitled under the Statute of Distributions, in case of intestacy of the deceased, and therefore the provisions of the act of Congress and the act of Illinois are in all respects similar, in respect to the parties entitled to the benefit of the recovery, and the conditions under which recovery can be had.

In the case of Railroad Co. v. Barron, 5 Wall. 90, this statute of Illinois was under consideration, and received a judicial construction. In the case as reported in 5 Wallace, the pleadings of the case are not set out. But we have the record of that case before us, and we find the declaration there not more specific in stating the special injury sustained by the next of kin by the death of the deceased, than the injury is stated in the declaration in this case. In that case, the deceased was never married, and his surviving next of kin were his father, brothers and sisters — the action being by the father as executor of the deceased.

In the first instance, the action was brought by the father in his individual character as next of kin, and after setting forth the facts attending the occurrence of the accident, and the consequent death of the son, the declaration simply alleged that the plaintiff was the personal representative of the deceased, and that the latter left no widow, but the plaintiff was father and next of kin, wherefore he had sustained damage in the sum of $5,000.

To this declaration there was entered a demurrer, which was not ruled upon, but the plaintiff obtained leave to amend, and he filed a new declaration, declaring in his character of executor; and after setting forth the facts of the accident causing the death, as in the previous declaration, the plaintiff averred that the deceased in his lifetime possessed and exercised great industry, prudence, energy, skill and good judgment in the management and control of his property and business affairs, by reason whereof he greatly augmented his estate and the profits thereof; wherefore, by the death of the deceased, the plaintiff had sustained damage in the sum of $5,000.

He then alleged that the deceased had left a will of which the plaintiff was the duly qualified executor, and that he left certain named brothers and sisters, as next of kin, for whose use the suit was brought; but it was not alleged how or to whom the property of the deceased was disposed of by his will. As will be observed, there was an entire absence of any allegation of special pecuniary loss sustained by the next of kin, by reason of the death of the deceased.

There was a demurrer entered to this declaration also; but after argument and time taken for advisement, it was overruled by the court, and the case went to trial on the general issue plea of not guilty.

That case was tried in the Circuit Court of the United States before two very able and distinguished judges — the late Mr. Justice Davis, then of the United States Supreme Court, and the late Judge Drummond, then the Circuit Judge of that circuit.

It was strongly insisted in that case that the plaintiff could recover, if entitled to recover at all, nothing more than nominal damages, unless it was shown that the parties for whose use the suit was brought had, at the time of the death of the deceased, a legal interest in his life, and that, by his death, they had been deprived of something to which they had a legal right. But this proposition, máde to the court in the form of a prayer, was rejected by the court; and, in referring to this contention, the court, in its charge to the jury, said: “ We cannot adopt that construction of the law, but charge you (the jury) that there can be a recovery if the deceased left no kin surviving him who had any legal claim on him, if living, for support.” The jury were fully charged upon the whole case, and we may elucidate some of the questions in this case by quoting another passage from the charge, as follows : “ We do not think it requisite to prove present actual pecuniary loss. It can rarely be done. The attempt to do it would substitute the opinion of witnesses for the conclusions of the jury. The facts proved will enable the jury to decide on the proper measure of responsibility. Some cases are harder than others, and the law intends that the jury shall discriminate in different cases. There is no fixed measure of damages, and no artificial rule by which the damages in a given case can be computed. The jury are not to take into consideration the pain suffered by the deceased, or the wounded feelings of the surviving relatives, and no damages are to be given by way of punishment.

“ In this case the next of kin are the parties who were interested in the life of the deceased. They were interested in the further accumulations which he might have added to his estate, and which might hereafter descend to them. The jury have a right, in estimating the amount of pecuniary injury, to take into consideration all the circumstances attending the death of Barron — the relations between him and his next of kin, the amount of his property, the character of his business and the prospective increase in wealth likely to accrue to a man of his age, with the business and means which he had.

“ There is a possibility in the chances of business that Barron’s estate might have decreased rather than increased, and this possibility the jury may consider. The jury also have a right to take into consideration the contingency that he might have married and his property descended in another channel. And there may be other circumstances which might affect the question of pecuniary loss, which it is difficult for the court to particularize, but which will occur to you. The intention of the statute was to give a compensation for the pecuniary loss which the widow (if any) or the next of kin might sustain by the death of the party; and the jury are to determine, as men of experience and observation, from the proof, what that loss is.”

The passages from the charges of the court, which we have just quoted, were all excepted to by the defendant, together with other portions of the charge, and the case was taken to the Supreme Court of the United States, where the judgment for the plaintiff was in all respects affirmed, and upon very much the same reasoning as that employed in the Circuit Court. 5 Wall. 90,106.

We think, upon the authority of that case, we must hold the allegations in the declaration in this case sufficient to let in all the proof that could be legally offered and considered, within the scope of the inquiry indicated in the charge just referred to, in respect to the damage sustained by the next of kin. And this has been the recognized result of the decision of Railroad Co. v. Barron, as is fully shown in the case of Serensen v. RR. Co., 45 Fed. Rep. 407. In that case, it was said by the court: “ If the damages which may be recovered are not confined to the legal pecuniary loss sustained by the next of kin, I cannot see any necessity for setting forth specially the damages sustained. Under the general allegation of damages, evidence can be introduced of all damages which naturally and necessarily would result from the death of the deceased.”

2. In regard to the second assignment of error, it is not necessary to say much, after what we have said in regard to the first assignment. The assignment itself is very indefinite, and the objection to the admissibility of the evidence excepted to seems to be grounded solely upon the theory that the evidence should have been rejected, because there was no specific allegation in the declaration to warrant its admission. But this ground of objection we have shown to be untenable. If, however, it were conceded that some of the facts or circumstances admitted against objection were irrelevant or immaterial, and therefore inadmissible, the error, if such existed, was very fully corrected in the charge to the jury, and especially in the instructions granted at the instance of the defendant. The instructions given by the court were full and explicit, and it is not to be presumed or supposed by intendment that the jury disregarded the instructions of the court; but, on the contrary, the presumption is that the instructions were observed and followed by the jury. The” scope of the inquiry, and for what matter damages could be allowed, and for what damages could not be allowed, where questions so fully explained as to furnish a clear guide to the correct''finding by the jury ; and where such is the case, the error in admitting immaterial evidence will not furnish ground for reversal. Railroad Co. v. Whitton, 13 Wall. 270, 290 ; Railroad Co. v. Roy, 102 U. S. 459 ; Railroad Co. v. Madison, 123 U. S. 524.

3. The third assignment of error presents the question whether the restriction by the court of the right to recover to the damages sustained by the niece of the deceased, irrespective of any claim by the nephew, was error of which the defendant could complain.

The recovery, under the statute, could not be otherwise than in solido. The act of Congress, unlike the act of 9 and 10 Viet., which requires the jury to distribute the recovery, has expressly provided that the amount recovered shall be distributed according to the provisions of the Statute of Distributions. Excluding the consideration of the rights of the nephew may operate to the prejudice of the niece, if her brother should make claim to participate in the recovery, under .the statute; but it is not perceived in what respect the defendant can be prejudiced by any claim that the nephew may make to share in the verdict. How the verdict may be divided, if it be divided at all, in no manner concerns the defendant. And it is a settled principle that no judgment will be reversed in a court of error where it appears that the alleged error could not have prejudiced, and did not prejudice, the rights of the party against whom the ruling was made; and a fortiori where the ruling was to the advantage of such party. Lancaster v. Collins, 115 U. S. 222, 227, and cases there cited.

4. Then, with respect to the supposed error in refusing the prayer of the defendant as to the negligence of the defendant and the contributory negligence of the deceased (designated as prayers 3 and 4) it is only necessary to say that the subjects of those prayers were very fully and clearly explained to the jury in the general charge that was given by the court. In the charge the court explained the questions of negligence of the respective parties thus: “ In all cases of this kind — that is, in all cases where an action is brought to recover damages for injury or death occasioned by neglect — it is a perfect defense if it can be shown that the plaintiff himself, or the injured party, if he is dead, was guilty of negligence which contributed directly to the injury; that is to say, if he could have avoided the consequences of the neglect on their part by the exercise of ordinary care and prudence himself — that is, the care which people ordinarily take of themselves, and failed to do it, he is not entitled to recover.

“ The contention in this case is, that the employees of the paving company, at the close of the day, erected boards over the trench, forming a safe passageway over them, and erected on either side barricades with open arms or splays, as you may call them, with lights standing upon them, which invited anybody coming down the street to come for a safe passage over a footway well lighted and perfectly free from danger, and that General Wilcox could not really have suffered the injury unless, in the haste of attempting to meet an engagement or through wanton carelessness he stepped outside of the barricades and went into a dangerous part of the street there, and met with this accident.

“ If that case is made out, if it is shown that either in consequence of haste or otherwise, he proved himself wanting on that occasion in the care that men ordinarily exercise'in their own behalf, in full view of this open passageway provided for the public, then he would not have been entitled to recover damages had he survived, and those who represent him equally fail to establish that right.

“ On the other hand, if the evidence for the plaintiff be true, that these excavations were not covered up at all, and no barriers were put there to prevent people from going across the street at that point, and,that the only precautions taken were to light some lamps or to rely upon the electric light, and that precaution, in your judgment, was not sufficient to guard against danger to persons exercising ordinary care, then a case of negligence is made out, and the plaintiff would be entitled to recover, if upon other grounds her case has been sufficiently proven — that is, if the case does not fail on other grounds which I shall have to consider further.”

This is as full and as clear an exposition of the subjects of the prayers as the defendant could in reason ask of the court, and being free from error, as we think it is, having in view the facts of the case, clearly, there could be no ground for alleging error in rejecting the prayers. In a case to which we have already referred, that of the Railroad Co. v. Whitton, supra, it was said by the Supreme Court in regard to the instructions in that case, that “ Some of the instructions prayed by the defendant presented the law respecting the liability of the company correctly, and some of them were based upon an assumed condition of things which the evidence did not warrant. But it is not error for a court to refuse to give an extended series of instructions, even though some of them may be correct in the propositions of law which they present, if the law arising upon the evidence is given by the court with such fullness as to guide correctly the jury in its findings, as was the case here; nor is a judgment to be set aside because the charge of the court may be open to some verbal criticisms in particulars considered apart by themselves, which could not, when taken with the rest of the charge, have misled a jury of ordinary intelligence.”

Here, the charge was full and covered the entire case, and it furnished a correct guide to the findings of the jury, and we perceive nothing in it of which the defendant can complain. It was not error, therefore, to reject all the prayers of the defendant, except the seventh and eighth, which were granted and read as part of the general charge. There are some other assignments of error, but they are of minor importance, and have been substantially disposed of in what we have said in disposing of the more important questions. The refusal to grant a new trial has been assigned as ground of error; but the granting or refusal to grant a new trial is not the subject of a bill of exception, and the ruling of the court on such motion cannot be reviewed by an appellate court. That has been so often decided that it has become axiomatic in appellate procedure, in the absence of express statutory provision upon the subject.

Upon the whole, we discover no error for which the judgment should be reversed, and it must therefore be affirmed ; and it is so ordered.

Judgment affirmed.