Chicago, R. I. & P. Ry. Co. v. Burke , 1902 Ill. App. LEXIS 645 ( 1902 )

Mr. Justice Waterman

delivered the opinion of the court.

Whether the deceased was struck by the front of the train or by some portion thereof, after the engine had passed, as whether the engine bell was ringing before and at the time of the accident, were, upon the trial, disputed 'questions.

Some of plaintiff’s witnesses testified that the engine drawing the train was proceeding with its tender in front, others that the engine preceded the tender.

Four employes of appellant were upon the engine. Some of these testified that the bell was ringing, as at a Street crossing it should have been; another that he could not tell because he was used to its ringing. They also testified to seeing these little girls standing beside the track; and Mr. Merriam, a switchman riding on the engine, testified that he spoke to the largest of the two girls and told her to stand back; she was so close to the engine; two others corroborate him in this. The engine and train went on without stopping; no one upon it knew of the accident until informed by a policeman some time thereafter, at Twenty-third street and Archer avenue.

Isabella Hart, not being sworn, at the coroner’s inquest, stated that a man, whom she did not know, seized her sister and threw her under the train.

The evidence in this case is such that a majority of the court are disinclined to set aside the judgment other than as regards its amount.

We regard the verdict for $5,000 as clearly excessive.

Undoubtedly the next of kin of this child would have scorned with contempt an offer of the entire Eock Island and Pacific Railway as compensation for acquiescing in the death of this little one. The law does not attempt to award a solatium.

There are affections which money can not purchase and losses for which it can not compensate. It is for the pecuniary loss alone that damages can be obtained; not for the hurt of the departed or grief at her taking away. Chicago & Alton Ry. Co. v. Becker, 84 Ill. 488; North Chicago Street Railway Co. v. Wrixon, 51 Ill. App. 307; City of Chicago v. Scholten, 75 Ill. 468; Rockford, R. I. & St. L. Ry. Co. v. Delaney, 82 Ill. 198.

In the last cited case the Supreme .Court approved of the following instruction therein, given upon the subject of damages:

The jury “ should take into consideration the value of the services of the deceased from the time of his death until he would have been twenty-one years of age, deducting therefrom what it would be worth to feed and clothe him during that period as proved.” See also: West Chicago Street Ry. Co. v. Scanlan, 68 Ill. App. 626; West Chicago Street Ry. Co. v. Mabie, 77 Ill. App. 176; Chicago & N. W. Ry. Co. v. Des Lauriers, 40 Ill. App. 654; Baltimore & Ohio, S. W. Ry. Co. v. Then, 59 Ill. App. 561; East St. Louis Ry. Co. v. Snow, 88 Ill. App. 660; Consolidated Traction Co. v. Graham, 40 Atl. Rep. 773; Graham v. Consolidated Traction Co., 44 Atl. Rep. 964.

We do not think that the giving of instruction number thirteen can have influenced the jury in their deliberations; nor are we prepared to say that the instruction was error.

If the plaintiff shall within ten days remit to $3,000 as of the date of the judgment, it will be affirmed for that sum, otherwise the judgment will be reversed and the cause remanded.