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Opinion of the Court.

before the court of appeals, and it was held that the nurture, and instruction, moral, physical and intellectual training, by the deceased, of her children, were proper elements to enter into the consideration of pecuniary loss suffered by the children. In that case there was evidence on which to base that instruction; in this case there is no such evidence, and therefore it should not have been given. In the absence of such evidence, it was a misdirection of the court. There was no proof tending to show that the deceased was fitted by nature or education, or by disposition, to furnish to his children instruction, or moral, physical or intellectual training. On another trial this may be shown.

A point is made upon the amount of damages allowed. It will be perceived the jury have gone to the extent of the law, and, without any proof other than the fact of death, have said the pecuniary loss thereby to his widow and next of kin is five thousand dollars, and no less.

By section two of the act under which this action is brought, a jury is permitted to give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from the death, to the widow and next of kin of the deceased, not exceeding five thousand dollars. The only injury for which a jury can estimate, is a pecuniary injury, that is, what have the widow and next of kin lost, in a money view, by the death? Nothing is to be allowed by way of solace. In Conant v. Griffin, Admr. 48 Ill. 410, which was a case under this statute, it was distinctly announced, as it had previously been, in other like cases, that the damages could only be for the pecuniary loss, not for the bereavement. City of Chicago v. Major, 18 ib. 349; Chicago and Rock Island Railroad Co. v. Morris, 26 ib. 400. The amount awarded by the jury, placed at interest, would yield five hundred dollars per annum. There was no proof that deceased earned, annually, one-half of that amount by his labor, or that his prospects were such, and such his business capacity, as to justify a reasonable expectation that he would, in the future, earn

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one-half the interest on that sum. He was a common laboring man, but at what wages there was no proof. This court said, in the case of the Chicago and Alton Railroad Co. v. Shannon, Admr. 43 Ill. 338, if the deceased was poor, the loss may consist in the fact that his personal exertions can no longer support those dependent upon him, but the subject itself does not lie within the limits of exact proof. While this is so, yet surely some evidence should be given of the profits of the labor of the deceased, and what he might, in all probability, earn for the future support of his wife and children. In this consists essentially the loss to the family. If some rule is not prescribed by which juries must be governed in such cases, the result will be in all cases a verdict to the extent of the law. The jury have no right to find arbitrarily, that the death of any husband and father results in a pecuniary loss to his widow and next of kin of five thousand dollars. A verdict rendered without evidence on a material point, and for the largest amount provided by law, bears very much the appearance of being the result of prejudice and passion.

For the reasons given, the judgment is reversed and the cause remanded.

Judgment reversed.

CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY

v.

MOSES MCARA.

1. NEGLIGENCE-in railroads. In an action against a railroad company for personal injury received by the plaintiff, by reason of the train in which he was a passenger having struck a cow which suddenly run upon the track, and the cars thrown from the rails, it appeared that cattle were

Syllabus. Opinion of the Court.

in the habit of resorting to the station where the accident happened, being attracted there by the corn liable to be scattered upon the ground, and that a few days before this accident, a train had run over a cow at that station. There was no watchman there to keep the track clear, and the train was passing the station with more than ordinary speed. With the known liability to such accidents at that place, this was inexcusable negligence.

2. EXCESSIVE DAMAGES. In this case, it appeared the plaintiff had no bones broken. He stated at the time of the accident that he was not much hurt. On the trial he stated that he was severely bruised on his left side. His physicians said it was merely a muscular injury. He kept his bed nearly all the time for a month, getting up, however, and walking about the house every day, and claimed to be still lame at the trial, which was about ten months after the accident, though there was some reason for supposing his recovery would have been more rapid if he had had no claim for damages. A verdict for $5000 was considered excessive, and the judgment was reversed for that cause.

WRIT OF ERROR to the Circuit Court of Rock Island county; the Hon. GEORGE W. PLEASANTS, Judge, presiding.

The opinion states the case.

MR. GEORGE C. CAMPBELL, for the plaintiffs in error.

Mr. JOHN B. HAWLEY, for the defendant in error.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

The appellee was a passenger on one of appellants' trains in July, 1867. As the train, early in the morning, was passing a flag station, it struck a cow that had suddenly run upon the track, and the car in which appellee was sitting was thrown from the rails and turned over. For the injury then received the jury gave a verdict of $5000.

The jury were properly instructed on the question of negligence, and their finding in that regard is sustained by the evidence. The evidence shows that cattle were in the habit of resorting to the station, being attracted there by the corn liable to be scattered upon the ground, and that, a few days before

Opinion of the Court.

this accident, a train had run over a cow at that station. A proper consideration for the safety of its passengers would very clearly impose on the company the duty, either of checking the speed of a train intending to pass the station without stopping, so as to remove all danger of such accidents, or of having a watchman stationed at the approach and passage of such a train, for the purpose of keeping the track clear. In this case there was no watchman, and the weight of the evidence goes to show the train, so far from slackening its speed, was running with more than ordinary velocity, being on a descending grade. With the known liability to such accidents at that place, this was inexcusable negligence.

We can, however, find no warrant in the evidence for the amount of damages. The plaintiff had no bones broken. He stated at the time of the accident he was not much hurt. In describing the extent of the injury, in his own testimony, he says he was severely bruised on his left side. Dr. Peck testifies that he and Dr. Conway agreed, when they examined him, that it was merely a muscular injury. He kept his bed nearly all the time for a month, getting up however, and walking about the house every day, and claimed to be still lame at the trial. The physicians who testified are unable to give a satisfactory explanation of his lameness, the theory advanced by some of them being pronounced impossible by the others. Four or five different witnesses testify to have seen him on as many different occasions, when in a state of some excitement, walking and even running for a short distance, without showing any appearance of lameness. While we can not accept the theory of appellants' counsel, that his lameness was wholly feigned, we can not, on the other hand, resist the conviction that his recovery would have been much more rapid if he had had no claim for damages, and that a verdict of five thousand dollars, which the statute fixes as the maximum limit of damages for death itself, in a suit brought for the benefit of the

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widow and next of kin, is wholly disproportionate to the inju ries received by this appellee.

We think it our duty to send this case to another jury.

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1. LIMITATIONS in equity. The fact that a statute of limitations is positive in its terms, will not, under all circumstances, operate as a bar in equity. There are cases in which a court of equity will not permit the bar of the statute to be interposed against conscience, and it will supply and administer a remedy within its jurisdiction, and enforce the right for the prevention of a fraud.

2. So, where a bill in chancery, by which it was sought to enforce a right in respect to which the defendant had been guilty of fraud, alleged that the complainant had no knowledge of the fraud until within the time prescribed by the statute as a bar, the remedy was enforced, notwithstanding the limit of the statute had expired before the filing of the bill.

3. PLEADING IN CHANCERY-to avoid the statute of limitations. In order to prevent the statute of limitations being availed of on a demurrer to a bill in chancery, if there be grounds which take the case out of the statute, they should be stated in the bill.

4. SAME of the allegation of fraud-when sufficient. In a bill filed by the board of supervisors of a county against a drainage company, to recover the proceeds of drafts which had come to the State from the general gov ernment, for swamp and overflowed lands sold by the latter after their selection, and which had been obtained from the State by the defendants, it was alleged that the secretary of the drainage company obtained the drafts from the State by some fraudulent pretense, the character of such pretense being unknown to the complainants, and that the secretary converted the drafts into money, and paid it over to the company: Held, upon demurrer to the bill, that, although all the circumstances attending the fraud were not stated, yet the allegation was as full as it could be made, and this was admitted by the demurrer, and was deemed sufficient.

161 595

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