Sweet v. Chicago & N. W. R. Co. 157 Wis. 400.

You will consider the age of

dren by reason of the death. the deceased and that of his wife and children, and the condition of the health of the deceased, his earning capacity, and his reasonable prospects at the time of his death. You should include the value of the support and protection by the deceased of the wife and dependent child or children, if any, that they would have received during the time that he probably would have lived. You should also consider the accumulation of property that the earnings of the deceased would probably have made had he continued to live, if you find that, and the reasonable expectation that the wife and children had of pecuniary advantage by ultimately receiving such accumulations, if such you find. The limit of the total compensation to both wife and children is such sum as, being put at interest, will each year, by taking a part of the principal and adding it to the interest, yield an amount sufficient for such support of the wife and the dependent child or children during the time the deceased would probably have lived as he would have furnished had he lived, together with such other sum as the evidence shows there is a reasonable expectation the wife and children would have received from his earnings. By request of Mr. Thomas I will say that they make no claim for compensation for any child except the youngest, I have forgotten the age, but the one whom it is claimed is in part incompetent.

"Mr. Smart: Then I understand that that part of the judge's instructions relating to that is to be eliminated—it is modified to that extent.

"Court: Yes, wherever I have used the word 'child' or 'children' it will be understood as referring only to this child just mentioned.

"Mr. Thomas: We claim damages for the widow and that child."

It is argued that the use of the word "protection" in this connection was erroneous. The seventh question of the special verdict merely required the jury to find what sum would compensate the widow for the pecuniary loss sustained as a result of Sweet's death; and the eighth question was couched in similar language and referred to the children, which was explained in the charge as referring only to the feeble-minded,

Sweet v. Chicago & N. W. R. Co. 157 Wis. 400.

dependent child. Taking the charge as a whole, it is apparent that the court meant in using the word "protection," and must have been understood to mean, pecuniary protection from want or penury. The word was used in this sense in Ryan v. Oshkosh G. L. Co. 138 Wis. 466, 120 N. W. 264. Quoting from Baltimore & P. R. Co. v. Mackey, 157 U. S. 72, 86, 15 Sup. Ct. 491:

"In Rogers v. The Marshal, 1 Wall. 644, 654, Mr. Justice DAVIS, speaking for the court, well observed that 'a nice criticism of words will not be indulged when the meaning of the instruction is plain and obvious, and cannot mislead the jury.' And in Evanston v. Gunn, 99 U. S. 666, 668, Mr. Justice STRONG said: 'Sentences may, it is true, be extracted from the charge which, if read apart from their connection, need qualification. But the qualifications are given in the context, and the jury could not possibly have been misled.' And so in Tweed's Case, 16 Wall. 504, 516: 'Courts are not inclined to grant a new trial merely on account of ambiguity in the charge of the court to the jury, where it appears that the complaining party made no effort at the trial to have the point explained.' See, also, The Sybil, 4 Wheat. 98."

There was evidence that the deceased was aged about fiftytwo at his death. His widow was about forty-nine. They had four children. The youngest, living with her parents, was twenty-two years of age, was feeble-minded, unable to earn her own living, and must be provided for and supported during her life. Deceased owned a homestead worth about $2,000 which he had accumulated since his marriage. He was sober, industrious, and in good health, earned about $100 per month, and turned his pay check over to his wife every month. He had not saved anything except this homestead and monthly premiums on a life insurance policy for $2,000. His expectancy of life according to American Experience Tables of Mortality was 19.49 years, and that of his wife and dependent child greater. It is not quite clear whether the reasonable expectation of pecuniary advantage by ultimately receiving such accumulations mentioned in the instruction re

Sweet v. Chicago & N. W. R. Co. 157 Wis. 400.

lates to expectation of gifts or the expectation of an inheritance by operation of law, or both. The accumulation of property made by the deceased up to the time of his death was small and his earning capacity was not apt to increase. What he had saved, however, was saved during the time when he had a family of four children to maintain, three of whom had become self-supporting. There is evidence of industry, sobriety, and good habits, but no particular indications of thrift or of a saving disposition. In the fact that he turned his pay check over to his wife every month there is ground for an expectancy of a continuation of such gifts. Part of this instruction is taken almost literally from the last sentence in the opinion in Rudiger v. C., St. P., M. & O. R. Co. 101 Wis. 292, 77 N. W. 169, and the rule for this state may also be found stated in Castello v. Landwehr, 28 Wis. 522; Kaspari v. Marsh, 74 Wis. 562, 43 N. W. 368; Lawson v. C., St. P., M. & O. R. Co. 64 Wis. 447, 24 N. W. 618; and other cases.

The federal Employer's Liability Act gives a right of action to the personal representative of the persons there described for death caused in whole or in part by the negligence of other agents or servants of employers of the class there mentioned. This is declared to be for the benefit of the surviving widow or husband and children of such injured employee, and if none, then for the benefit of such employee's parents, and if neither widow, husband, children, or parents, then for the benefit of the next of kin dependent upon such employee. Unlike our statute, sec. 4256, this contains no directions as to the measure of damages. Neither did the prototype of all those statutes known as Lord Campbell's Act. Speaking of the Illinois statute similar to ours in Richmond & D. R. Co. v. Elliott, 149 U. S. 266, 13 Sup. Ct. 837, the supreme court said:

"Of course, there are possibilities and probabilities before every person, particularly a young man, and a jury in estimating the damages sustained will doubtless always give

Sweet v. Chicago & N. W. R. Co. 157 Wis. 400.

weight to those general probabilities, as well as to those springing from any peculiar capacities or faculties."

This, we take it, means that ordinary probabilities which affect every person may be considered by the jury. In Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545, 7 Sup. Ct. 1, a judgment was reversed because the trial court by instructions attempted to fix, by the aid of standard life and annuity tables, the exact measure of the loss of future income by the beneficiary. In Railroad Co. v. Barron, 5 Wall. (72 U. S.) 90, the trial court instructed the jury as follows:

"In this case the next of kin are the parties who were interested in the life of the deceased. They were interested in the further accumulations which he might have added to his estate, and which might hereafter descend to them."

The supreme court said:

"The statute in respect to this measure of damages seems to have been enacted upon the idea that, as a general fact, the personal assets of the deceased would take the direction given them by the law. . . . If the person injured had survived and recovered, he would have added so much to his personal estate, which the law, on his death, if intestate, would have passed to his wife and next of kin; in case of his death by the injury, the equivalent is given by a suit in the name of his representative. There is difficulty in either case [by the injured party in case he survives, or by his administrator in case of death] in getting at the pecuniary loss with precision or accuracy, more difficulty in the latter than in the former, but differing only in degree, and in both cases the result must be left to turn mainly upon the sound sense and deliberate judgment of the jury."

Tiffany on Death by Wrongful Act (2d ed.) sec. 159 et seq., distinguishes at least by classification between loss of prospective gifts and that of a prospective inheritance. The weight of authority seems to be that from evidence of age, health, family relations, amount of earnings, thrift and industry, prior accumulations, and disposition toward the beneficiaries, the requisite probability of reasonable expectation:

Sweet v. Chicago & N. W. R. Co. 157 Wis. 400.

of benefits from gifts or inheritance may be supported. The evidence here is slight on this subject, still there is some evidence to which the instruction may relate. However we have in this state a statute of procedure which forbids the reversal of judgments by this court on the ground of misdirection of the jury or the improper admission of evidence, unless in the opinion of the court, after an examination of the entire action or proceeding, it shall appear that the error complained of affected the substantial rights of the party seeking to reverse or set aside the judgment or to secure a new trial. Sec. 3072m, Stats. 1913. Where an act of Congress commits to the state court the duty of trying cases arising thereunder, such cases may be tried according to the state rules of procedure. Considering the chance of life of the deceased and that of his widow and dependent child and the amount contributed for support, we think it is apparent that the jury allowed nothing for probable gifts or inheritance. If the deceased was contributing from $90 to $100 a month to the support of his family, including the dependent child, it is manifest that $5,000 would not continue this rate of contribution for anything like the period of his expectancy of life. The award of $4,000 to the widow and $1,000 to the dependent child is so small as to be less than the real value of their support and maintenance. It is scarcely equal to the value of such support and maintenance for five or six years at the rate at which the deceased had been accustomed to contribute thereto. So much they lost by his death, allowing him only five years instead of nineteen years expectancy of life. Therefore, while concluding there is some slight basis. in the testimony to justify the instructions above quoted, we must at the same time hold that if there is no such sufficient basis in the testimony, nevertheless the quoted instructions did not in this case, as it appears to us, affect the substantial rights of the defendant.

By the Court.-Judgment affirmed.