Tuteur v. Chicago & Northwestern Railway Co. , 77 Wis. 505 ( 1880 )

Cassoday, J.

The findings of the jury to the effect that the plaintiff’s intestate was injured by the negligence of the defendant, and that such injury resulted in her death, as stated, seem to be supported by the evidence. She was, at the time, a widow sixty-one years of age, engaged in keeping a boarding-house at La Crosse, and had some twenty boarders, to some of whom she furnished rooms and lodgings. There is evidence tending to prove that she was in good health, and for years had been doing a profitable business, keeping boarders; that she made some money besides supporting and clothing her youngest daughter and occasionally giving small amounts of money to her son. The court charged the jury that the plaintiff could only recover the actual pecuniary loss which the children had sustained by reason of their mother’s death. Of course it was impossible to definitely prove the exact amount of such loss. Railroad Co. v. Barron, 5 Wall. 90. The statute expressly authorized the jury to give such damages, not exceeding the amount specified therein, as they deemed fair and just, in reference to the pecuniary injury resulting from such death to the children named. R. S. sec. 4256. This certainly authorized the jury to take into consideration the number of years the intestate would probably have lived had it not been for the injury; the reasonable expectation of the amount of her projDerty being increased; and the reasonable expectation of pecuniary benefit to the children, or any of them, by way of support or otherwise, had the deceased continued to live without such’ injury. Castello v. Landwehr, 28 Wis. 522; Ewen v. C. & N. W. R. Co. 38 Wis. 613; Johnson v. C. & N. W. R. Co. 64 Wis. 425; Lornson v. C., St. L., M. & C. R. Co. 64 Wis. 447; Kaspari v. Marsh, 74 Wis. 562. The charge to the jury appears to have been full and fair, and did not authorize the jury to go outside of the limitations thus fixed. It is true, the damages found by the jury were in excess of the amount authorized by the evidence, but such amount was reduced by the order of the court and the voluntary action of the plaintiff, in the manner indicated. The amount of the damages so reduced seems to be sustained by the evidence.

Ordinarily parents expect no pecuniary benefits or advantages from their children after they become of age; and, hence, in case of the death of a child, it has been held necessary to show that the parent was in an indigent or dependent condition, in order to recover. Potter v. C. & N. W. R. Co. 21 Wis. 372, 22 Wis. 615; Ewen v. C. & N. W. R. Co. 38 Wis. 622; Johnson v. C. & N. W. R. Co. 64 Wis. 431; Wiltse v. Tilden, ante, p. 152. But a more liberal rule obtains in an action to recover damages for the death of a parent, for the benefit of a child. Ordinarily children are expected to survive their parents, and to inherit whatever propert})" they leave undisposed of, and to transmit their own property to their own children. The mere fact that the children in the case at bar were all of age at the time of their mother’s death did not preclude them from recovering for the loss of such pecuniary benefits as they had a reasonable expectation of securing from additional accumulations of their mother, had she not been injured. These principles seem to be recognized, if not asserted, by some of the adjudications. Kelley v. C., M. & St. P. R. Co. 50 Wis. 381; McKeigue v. Janesville, 68 Wis. 50; Kaspari v. Marsh, 74 Wis. 562; Louisville, N. A. & C. R. Co. v. Buck, 116 Ind. 566; McIntyre v. N. Y. C. R. Co. 37 N. Y. 287; Walter v. C. D. & M. R. Co. 39 Iowa, 33. We find no error in the record.

By the Oourt.— The judgment of the circuit court is affirmed.