108. CHICAGO & ALTON RAILROAD COMPANY v. SHANNON, ADMINISTRATOR SUPREME COURT OF ILLINOIS. 1867 43 Ill. 339 APPEAL from the Circuit Court of McLean County; the Hon. John M. Scott, Judge, presiding. The facts in this case are fully stated in the opinion of the Court. Messrs. Williams & Burr, for the appellant. Mr. W. H. Hanna, for the appellee. Mr. Justice LAWRENCE delivered the opinion of the Court. This was an action on the case brought under the statute by Samuel P. Shannon, as administrator of Joseph W. Shannon, deceased, for the benefit of the next of kin, against the railway company, for wrongfully causing the death of the said Joseph, who was a brakeman upon said road. The plaintiff below recovered judgment for $2,000, and the defendant appealed. The death was caused by the explosion of the boiler of the locomotive while the train to which the deceased belonged was in motion, on the 18th of May, 1865. The suit is brought upon the ground, that the boiler was unsafe and was known to be so to the appellant. It is urged by the counsel for the appellant, in a very elaborate review of the testimony, that the judgment should be reversed because the verdict was against the evidence on the main point - the insecurity of the boiler. The rule of this Court has been so often announced as hardly to need repetition that, unless the verdict is clearly against the evidence, and can be considered only as the result of passion, prejudice, or a palpable misapprehension of the facts, it is not the province of the Court, for that reason, to interfere. . . It is also insisted that the Court erred in refusing the following instructions: . . . "Even if the jury should believe from the evidence that the engine was unsafe, and that the defendant's employees, whose duty it was to know it, did know that it was unsafe, yet if they further believe from the evidence that the plaintiff's intestate was over twenty-one years of age and that he was in no way indebted to the plaintiff or any one else, and that the deceased left no widow or children nor descendants in any degree, then there was no one who had any legal interest in his life and the plaintiff cannot recover in this case.' The question presented in the second of the foregoing instructions is one of some novelty. The statute upon this subject, 2 Purples' Statutes, 1245, Scates' Comp. 422, authorizes the suit to be brought for the exclusive use of the widow and next of kin. We do not perceive how the conclusion is to be avoided, that wherever there are next of kin the action will lie for the recovery of at least nominal damages. We know of no principle by which we are authorized to say that "the next of kin" must be within certain degrees of consanguinity. Any rule or limitation of that character which we should endeavor to lay down, would be purely arbitrary, and mere judicial legislation. The phrase "next of kin," used in the statute, is a technical legal phrase, and we must suppose it to have been used by the Legislature in its technical sense. It means here what it means elsewhere. But, while the action may be brought in any case where there are next of kin, the more important question remains what is to be the measure of damages? This Court held in The City of Chicago v. Major, 18 Ill. 349, and again in The Chicago and Rock Island Railroad Company v. Morris, 26 Ill. 400, that the recovery can only be for the pecuniary loss and damage, and not for the bereavement. Nothing can be given as solatium. If then the next of kin are collateral kindred of the deceased, and have not been receiving from him pecuniary assistance, and are not in a situation to require it, it is immaterial how near the degree of relationship may be, only nominal damages can be given, because there has been no pecuniary injury. If, on the other hand, the next of kin have been dependent on the deceased for support, in whole or in part, it is immaterial how remote the relationship may be, there has been a pecuniary loss for which compensation under the statute must be given. So, also, if the deceased was a minor and leaves a father entitled, by law, to his services. It is said, on the authority of an unofficial report, that the Supreme Court of the United States have recently held, in a suit brought by the executors of Barron against the Illinois Central Railroad Company, and taken to that Court by a writ of error to the Federal Court of this district, that a suit cannot be brought under this statute for the benefit of the parents, brothers, and sisters of the deceased, who was of age, alleging, as a reason, that they have no pecuniary interest in his life. While we entertain great respect for that Court, we cannot agree with it in this view, if it has so held; and the construction of State laws, when they do not interfere with the Constitution or laws of the United States, belongs to the State Courts. We hold, then, that such next of kin as have suffered pecuniary injury from the death of deceased may recover pecuniary compensatory damages under this statute. How this pecuniary damage is to be measured, - in other words, what is to be the amount of the verdict, must be largely left (within the limits of the statute) to the discretion of the jury. The Legislature has used language which seems to recognize this difficulty of exact measurement, and commits the question especially to the finding of the jury. The law provides, that "they are to give such damages as they shall deem a fair and just compensation." What the life of one person is worth, in a pecuniary sense, to another, is a question incapable, from its nature, of exact determination. Although the wealth or poverty of the deceased may be important elements, they are not the only ones that enter into the problem. If the deceased was poor, the loss may consist in the fact, that his personal exertions can no longer support those dependent upon him. If rich, the loss may be nearly as great, in the deprivation of the care and management. of his business or estate. In creating this right of action the legislature have confided to the jury a subject, that does not lie within the limits of exact proof. But, in this, as in all other action, the Court must so far supervise the verdict as to see that it is not the result of unreasoning prejudice or passion. In the case at bar it is in proof, that the father of the deceased was fifty years old, and had little property besides his homestead; that the deceased lived at his father's when not on the road, and contributed to the support of the family, and that his father had an insurance policy on his (the father's) life, for the benefit of the mother of deceased, the premium upon which, $118, the deceased had paid, and promised to keep paid. The verdict was for $2,000, and we do not feel authorized to say it was too large. The evidence offered by the defendant, that the engineer, on a previous trip, had carried more steam than the rules of the company allow, was properly excluded. It could shed no light on the issues in this Judgment affirmed. case. 109. CHICAGO, PEORIA, & ST. LOUIS RAILROAD COMPANY v. WOOLRIDGE SUPREME COURT OF ILLINOIS.. 1898 174 Ill. 330, 51 N. E. 701 APPEAL from Appellate Court. Third District. Action by Charlotte Woolridge, administratrix of John A. Woolridge, deceased, against the Chicago, Peoria, & St. Louis Railroad Company. Jugdment for plaintiff was affirmed by the Appellate Court (72 Ill. App. 551), and defendant again appeals. Reversed. Bluford Wilson and Philip Barton Warren, for appellant. S. H. Cummins, Clinton L. Conkling, and Joseph M. Grout, for appellee. PHILLIPS, J. This action was brought by Charlotte Woolridge, as administratrix, to recover damages, under the statute, for the death of her intestate, John A. Woolridge, occasioned, as alleged, by the negligence of the defendant in the operation of its train of cars. A summary of the main facts is: The deceased was a flagman for the Chicago & Alton Railroad Company. That road and the defendant road had constructed extra tracks from their main lines to the State fair grounds at Springfield, Ill.; both entering such grounds at the southeast corner. The business of the deceased was to flag the Chicago & Alton trains, and to assist in guarding such highway crossings. . . . As the Chicago & Alton train approached deceased, leaving the grounds, he stepped backward on the track of the defendant, when its train, backing down, with trainmen on the rear end, running at a speed of from probably eight to twelve miles an hour, struck him, and thereby caused his death. The plaintiff obtained a verdict and judgment, which were affirmed by the Appellate Court. The deceased left surviving him the plaintiff, his widow, and seven children, three of whom lived with their father, and four had their own homes. All of the children were of age. Clarence Woolridge, who lived with his father, was so crippled by rheumatism that he was unable to work. The admission of proof of this fact, and of his dependence on his father for support, over the objection of the defendant, is one of the errors assigned, and of which serious complaint is made. . . The most serious question is that relating to the admission of the following evidence of Clarence Woolridge: "Q. If you have any bodily infirmity; tell the jury what it is. (The objec tion by defendant to this question was sustained, but the Court remarked: 'You may ask him if he was dependent on his father for support.') Q. Now, Clarence, if you were dependent upon your father for support, you may tell the jury. (This question was objected to, overruled, and exceptions taken.) A. Yes; I am not able to do no hard work, no work of any kind. Q. If you are crippled, tell the jury how. A. I am crippled here, rheumatism in my right hip. (To which objection was made by defendant, overruled by the Court, and exceptions taken.) Q. Unable to work, are you, and earn a living? A. Yes, sir." That such evidence would have a very strong tendency to enlist the sympathy of the jury, and thereby tend to affect not only the amount of the verdict, but also to affect the judgment of the jurors as to a liability, is very clear. This evidence was admitted on the theory that under the law this crippled son was in need of help on account of his helpless condition, and therefore had been supported, and was legally entitled to be supported, by his father, because of such condition. It is said in support of this position that in order to recover more than nominal damages the proof must show the next of kin were supported in whole or in part by the deceased, or that the deceased was bound by law to support them because they were in a state of dependence. As to Clarence Woolridge, it is further said, without this state of dependency his father would not have been bound by law to support him, as he was over twenty-one years of age, and therefore this evidence is said to be material to enhance the damages. This view of the law is not in accord with the rule laid down by this Court in relation to a recovery by lineal next of kin. This action is based on chapter 70 of the Revised Statutes. Section 1 gives an action for a wrongful act causing death, while section 2 prescribes in whose name the action shall be brought, and for whose benefit, and limits the damages "to the pecu niary injuries resulting from such death to the wife and next of kin of such deceased person." The personal representative brings the action as trustee for those who have such pecuniary interest in the continuance of the life of the deceased, and not in right of the estate (City of Chicago v. Major, 18 Ill. 349; Holton v. Daly, 106 Ill. 131); and, as provided by section 2, "the amount recovered. . . 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 proportion provided by law in relation to the distribution of personal property left by persons dying intestate." This act has been construed: (1) That "next of kin" means those standing in that relation in a technical sense. Railroad Co. v. Shannon, 43 Ill. 338. (2) That, if the next of kin are collateral, it is a material question whether they were in the habit of claiming and receiving pecuniary assistance from the deceased. If they were not, they can only recover nominal damages. If they were lineal, the law presumes pecuniary loss from the fact of death. City of Chicago v. Scholten, 75 Ill. 468; Railroad Co. v. Swett, 45 Ill. 197. (3) That the amount of the recovery is limited to the "pecuniary loss." Railroad Co. v. Brodie, 156 Ill. 317, 40 N. E. 942, where cases on this point are reviewed, and where, on page 320, 156 Ill., and page 943, 40 N. E., quoting from Conant v. Griffin, 48 Ill. 410, it is said: and, as they only provide "This action is the creature of the statutes, (4) "Pecuniary loss" is held, as to lineal kindred, to mean what the life The poverty, wealth, helplessness, or dependence of the lineal next of kin is immaterial on the question of the amount of the recovery, |