Wabash Railroad v. Smith , 162 Ill. 583 ( 1896 )

Mr. Justice Carter

delivered the opinion of the court:

The first point made on this appeal is, that the trial court erred in not instructing the jury, at the request of the defendants, made at the close of the testimony, to find a verdict for the defendants. Counsel say, that while there was evidence tending to prove that appellants were guilty of negligence as alleged in the first and second counts of the declaration, there was no evidence whatever tending to prove plaintiff’s allegation that the deceased was in the exercise of due care for his own safety when he was injured. We do not think this proposition can be maintained. The boy was passing along the street upon the sidewalk, where he had the right to be, and to reach his home was compelled to cross appellants’ tracks in Wallace street. The evidence showed that his view of the approaching Wabash train was obstructed by the train of the Chicago and Eastern Illinois Railroad Company which was going south on the track next to him, and that he waited at the crossing until the last named train had passed and then started to cross, when the Wabash train, coming at a greater speed than was allowed by the city ordinances, struck and killed him. The two tracks were close together, and the noise, smoke and dust caused by the passing train might also readily prevent him from hearing or seeing the train so rapidly approaching on the other track. In answer to special interrogatories propounded by appellants the jury found' that the deceased did use diligence for his own safety, and we cannot say there was no evidence upon which such an answer could have been returned.

It is next insisted that the court erred in giving to the jury the following (the only) instruction asked by the plaintiff:

“The court instructs the jury, that if they find, from the evidence in this case, that the plaintiff has proved his case, as alleged in his declaration, by a preponderance of the evidence, then they should find the defendants guilty, and assess plaintiff’s damages at. such sum as they find has been proved by a preponderance of the evidence offered in this suit.”

It is said that the declaration alleges that the next of kin “have been and are, by means of the premises, deprived of his (the deceased’s) comfort, assistance, companionship and support,” and that the instruction was therefore a clear and unequivocal direction to allow damages as a solatium, which this court has repeatedly held cannot be given. It is by no means clear that the instruction is open to the objection made; but however this may be, when all of the instructions are considered we do not think it was possible for the jury to have been misled on this question. Sixteen instructions were given to the jury upon the request of the defendant, covering the different phases of the case, and two of them were as follows:

“If the jury find for the plaintiff, and find that the next of kin of deceased has sustained any damages by reason of liis death, in estimating such damages the jury cannot consider the mental sufferings or grief of the surviving kindred, or loss of domestic or social happiness, or culpability of the defendants, but the jury, if they find for the plaintiff, must be governed solely by the actual pecuniary money loss that the next of kin of deceased have sustained by reason of his death.

“If the jury find for the plaintiff, in estimating the damages sustained by the next of kin of the deceased by reason of his death, the jury can only estimate the damages to the brothers and sisters of deceased at such a sum as the evidence shows they have sustained by the death of deceased, and can only estimate the damages to the father of deceased upon the basis of what the son’s services would have been worth to his father from the date of the injury to the time he would have arrived at the age of twenty-one years, deducting therefrom the costs and expenses of the father in his support and maintenance during that time; and if the evidence does not show the ages of said brothers and sisters, nor that they were receiving support from him or were in condition to require it, then the jury can only estimate the damages to said brothers and sisters at a nominal sum.”

These two instructions were too explicit to be misunderstood, and when considered in connection with the one given for the plaintiff but little room is left to appellants for criticism.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.