Baltimore & Potomac Railroad v. Golway

Mr. Justice Shepard delivered the opinion of the court: 1. The first error complained of is the refusal of the court to instruct the jury to return a verdict for the defendant. The case was one proper to be submitted to the jury, and the court did not err in refusing the instruction. As the judgment must be reversed for an error in the charge, and the case remanded for another trial, we do not think it advisable to review the evidence or to express any opinion with respect thereto, further than to say that it does not present a case where “ but one reasonable view can be taken of the evidence and of its every intendment, and that view is utterly opposed to the plaintiff’s right to recover.” Railroad Co. v. Carrington, 3 App. D. C. 101. Wherever there is any uncertainty as to the existence of either negligence or contributory negligence, the question must be left to the jury. Delaware, etc., Railroad Co. v. Converse, 139 U. S. 469, 472; Railway Co. v. Powers, 149 U. S. 43; Gardner v. M. C. Railroad Co., 150 U. S. 349; G. T. Railroad Co. v. Ives, 144 U. S. 408, 419; Walter v. B. & O. Railroad Co., ante, p. 20. This evidence differed materially from that in each of the cases relied on by the appellant, viz., Railroad Co. v. Houston, 95 U. S. 697, and Elliott v. Chicago, etc., Railroad Co., 150 U. S. 245, where, from the uncontradicted evidence, no other conclusion could be reached than that the proximate cause of the death of the parties was their own contributory negligence. 2. The first, second and third special prayers asked by the plaintiff are subject to some criticism on account of their elaborate enumeration and frequent repetition of the elements of negligence-which the jury might find to exist in the case as made by the plaintiff, yet we cannot say that it was error to give them to the jury. In order that they — 166 — might determine whether there was negligence on the part of defendant, or contributory negligence on the part of the plaintiff’s intestate, it was proper to call the attention of the jury to the relative rights, duties and obligations of the respective parties at a place commonly used as a crossing, if the evidence showed it to be such a place. If it had been used as a crossing to such an extent as that the defendant must reasonably have known of such user, without objecting thereto and taking steps to prevent it, if indeed it had any right to prevent it, then the deceased was not a trespasser, and it was proper to tell the jury of the established distinction between the degree of care which a railway company is bound to exercise towards a mere trespasser upon its tracks and towards those who may have occasion to cross them at a place commonly used and resorted to for that purpose. Taylor v. D. & H. Canal Co., 113 Pa. St. 174, 175; G. T. Railroad Co. v. Ives, 144 U. S. 408. Although at any crossing a steam railway company usually has the right of way, yet the duties and obligations of it and parties who travel the roads or pathway are mutual and reciprocal, and both are charged with the duty of keeping a careful lookout for danger. Continental Imp. Co. v. Stead, 95 U. S. 161, 165. It is true the crossing in question was not a regular highway or traveled street, but it had been used as a crossing by pedestrians without apparent objection ; and whilst the defendant may not have been required to exercise so high a degree of care as at a regular street crossing, still a certain amount of care was requisite, and it was proper to so instruct the jury. The exact amount of care which any one is called upon to exercise at a given time and place to avoid injury to others or to himself necessarily varies with the facts and circumstances of each particular case. Delaware, &c., Railway Co. v. Converse, 139 U. S. 469, 473; G. T. Railroad Co. v. Ives, 144 U. S. 408. It was proper also to direct the attention of the jury to the ordinance regulating the speed of trains, and to charge — 167 — them that a failure to observe it would be negligence, the effect of which they might consider in determining whether the injury to deceased was the result of his own or the defendant’s want of care. Had the train been moving within the prescribrd limit of speed it is not altogether unreasonable to suppose that deceased might possibly have passed the track without injury, and consequently it was a matter for the consideration of the jury, along with others. Of .course the mere fact that defendant may have disobeyed the ordinance would not render it liable unless such disobedience may have had some appreciable agency in producing the injury. Had it been plain that the injury was due to deceased’s own negligence in going carelessly in front of an approaching train and taking his chances of avoiding it, then the mere fact that the train was moving at an unlawful rate of speed would not relieve him from the consequences of his own negligence. There was nothing in the instruction to negative the foregoing proposition, and when considered in connection with other special instructions given on behalf of defendant it is manifest that the jury could have received no impression to the effect that they could find for the plaintiff on this ground without regard to the want of due care on the part of deceased. For like reasons it was not error to permit the jury to take into consideration the character of the surrounding grounds, the uses of the siding and switch track at the timé, and the probable obstructions to sight and sound incidental thereto. These were all pertinent circumstances in connection with the use of the place as a crossing, the absence of warning; and the unlawful speed of the train. G. T. Railroad Co. v. Ives, 144 U. S. 408, 419. 3. A more difficult question arises on the exceptions taken to certain parts of the special prayers given on behalf of the plaintiff relating to the failure of the defendant to take precautions to warn the public of approaching trains at the place of the accident. The references in the first three special prayers to the absence of signals, warnings, — 168 — etc., may be said to be called for by, and to be responsive to, the evidence offered by defendant, to the effect that the engine bell had been continuously rung from the time of passing Bennings Station, and that the whistle had been sounded some 450 feet or more from the crossing. .But in another special instruction, after referring again to the accustomed use of the pathway and the knowledge of defendant and its want of objection thereto, the following words, to which the exception apply, were used: “ Then it was the duty of the defendant to take and use all reasonable precautions to warn the public of the approach of trains at such crossings, and a failure of the defendant to do this would warrant the jury in finding that the defendant was guilty of negligence, and in determining whether there was or was not such negligence the jury should take into consideration the topography of the adjacent country and obstacles that may have been placed there by the defendant, and what, if any, signals were given of the approaching train and the time when they were given if they were given.” (1.) The first objection is founded upon an alleged act of the Legislative Assembly of the District, approved June 26, 1873, which makes it unlawful for railway'•companies to ring bells or sound whistles within the limits of the city of Washington, though no penalty is provided for its violation. This seems to be such a municipal regulation as was clearly within the power of that body to enact (Stoutenburgh v. Hennick, 129 U. S. 141), and it may be conceded that the court was bound to take notice of it, if still, in force. We shall not turn aside now, however, to inquire whether this ordinance had been repealed or superseded by other regulations, since enacted, relating to such matters, because we deem it unnecessary to do so. The instruction excepted to did not in terms mention ringing the bell or blowing the whistle as proper means of warning. The existence of the ordinance was not in fact brought to the attention of the trial court; it is here cited for the first time. — 169 — The evidence of defendant tending to show that these particular signals had been given at the time and place in question, in accordance with its general practice in running trains, was apparently offered in good faith to support its particular line of defence, and necessarily negatived the existence of any such ordinance, and any defence that might be founded thereon. The trial having proceeded upon the theory that no such regulation was in force, and this through the acquiescence, if not the suggestion, of the defendant, it cannot now be heard to claim error therein. N. Y. E. Railroad Co. v. Fifth Nat. Bank, 135 U. S. 432. Moreover, the error, if error it may be, was one of omission merely, and the defendant should have directed the attention of the court to the point by a special prayer; failing this it may be regarded as waived. Express Co. v. Kountze Bros., 8 Wall. 342, 353; First Unitarian Soc. v. Faulkner, 91 U. S. 415, 423; Carter v. Carusi, 112 U. S. 478, 484. (2.) The second ground of objection now urged is thus stated by appellant: “ It left to the jury to determine what particular kind of precautions, what signals, what notices the defendant should have given. They were permitted to conjecture what kind of a precaution, or sign, or signal would have been efficacious, and this too in the absence of any proof as to what would be a reasonable precaution suitable to the extent of the danger at this point.” We cannot see that the jury could have been misled by anything in the charge complained of to the prejudice of any legal right of the defendant. If apprehensive that too much was left to the discretion of the jury, the defendant might have submitted a special prayer limiting or qualifying the one given, in the particulars in which it was thought to have gone too far. Rules of law, founded in sound public policy, demand that at public crossings or other places where, within the knowledge of the railway company, persons are accustomed to cross the tracks, it must exercise reasonable care to prevent the doing of injury; the de — 170 — gree of care varying with the dangers and demands of the situation. Where a statute or ordinance makes complete regulations governing the precautions to be observed by steam railways as such places to guard against accident, it is the duty of the court to give them in its charge to the jury, limiting their consideration to the observance of those regulations exclusively. But where there are no such regulations at all, or they cannot be construed as intended to be complete and exclusive, then what may or may not have been reasonable and proper precautions, warnings and signals, under all the circumstances surrounding the occurrence, would become a question of mixed law and fact, and therefore one for the determination of the jury under the direction and control of the court. In the case of Dyer v. Erie Railroad Co., 71 N. Y. 228, relied on by appellant, the court sustained the soundness of the charge to the effect that it was the duty of the railway company to give proper signals and in a manner that would reasonably give notice to persons seeking to cross the tracks, so that they might, with due care, avoid danger, holding that other precautions than those prescribed by a statute might, under some circumstances, be reasonable and necessary. It was held, however, that a charge was erroneous which left it to the jury to say that a particular signal or precaution should have been given or observed, and the case of Beisiegel v. N. Y. C. Railroad, 40 N. Y. 9, wherein it was held that it was not proper to submit to the jury whether a flagman ought to have been stationed at a crossing, was cited with express approval. We have also been referred to a decision of the Supreme Court of the District of Columbia, in general term, wherein it was said: “ Whenever it appears from the whole tenor of the charge that, whether designedly or by inadvertence, the court has gone so far as to leave an impression upon the minds of the jury that they have a right to go beyond the general inquiry as to reasonable care and diligence and to establish — 171 — for themselves a particular standard of diligence, there is error.” Springman v. B. & P. Railroad Co., 5 Mackey, 1, 6. As an abstract proposition of law, that quoted above may be conceded to be sound ; but as the instructions discussed are not set out in the statement of the case, nor given in the opinion, it is impossible to say just what bearing that decision has on the particular point under discussion in this case. The instruction given in this case did not inform the jury that they could find whether the failure to have a flagman or a gate at the place of the accident was negligence, nor, on the other hand, did it inform them that they could not take the omission into consideration at all. There was, however, no evidence offered regarding or referring to either the reasonableness or the practicability of having a flagman at the place of the accident, and, taking into consideration all the evidence and the general tenor of the instructions offered and given, it is more than probable that the jury did not consider the existence or non-existence of any other warnings or precautions than the sounding of bell and whistle and the observance of the regulation concerning the speed of trains within the city limits. But, be this as it may, the instruction as given is fairly within the principle of the rule laid down by the Supreme Court of the United States in G. T. Railroad Co. v. Ives, 144 U. S. 408, 419. In that case the plaintiff’s intestate was killed at a point where a public' road crossed the railway at grade. The train which caused the injury was running at a rate of speed greater than prescribed by law, and no signal was given of its approach. There were some houses near the crossing which obstructed to some extent the view of trains coming from the direction whence that train came. There was no flagman at the crossing. The statute of Michigan charged the State railroad commissioner with the duty of designating places where flagmen should be stationed, and it was shown that he had not required one at that crossing. The — 172 — trial judge, after having, in the first part of the charge, told the jury that the law did not require the use at public crossings of the “most highly developed and best methods of saving the life of travelers on the highway, but only such as reasonable care and prudence would dictate under the circumstances of the particular case,” called attention to the situation generally, and then said: “It was reasonable that the railroad company should provide special safeguards to persons using the crossing in a prudent and cautious manner, and the law authorizes you to infer negligence on its part for any failure to adopt such safeguards as would have given warning, although you have a statute in Michigan which undertakes by its provisions to secure such safeguards in the way the statute point out. The duty may exist outside the statute to provide flagmen or gates or other adequate warnings or appliances, if the situation of the crossing reasonably requires that — and of this you are the judge— and it depends upon the general rule that the company must use its privilege of crossing the streets on its surface grade with due and reasonable care for the rights of other persons using the highway with proper care and caution on their part. So if you find that the train hands kept no proper lookout and managed the train without due caution and reasonable care, you will be authorized to infer negligence on the part of the company as one of the facts established in the case.” Mr. Justice Lamar said: “That this instruction is in harmony with the general rule of law, obtaining in most of the States, and at common law, we think there can be no doubt.” In that case the crossing was a much travelled public highway, and necessarily greater care and more precautions for giving warnings should be required at such a place than at one subject to the occasional uses shown by the evidence in this case; consequently, by quoting the charge in that case, we are not to be understood as intimating that in all cases where there may be a public crossing of even frequent use within the knowledge of the railway company, — 173 — the jury are to be left to consider and determine whether it was negligence not to have a flagman or gate at the point, in the absence of any statutory requirement to that effect. The charge in this case does not, in terms, go so far, and any misleading effect that it could possibly have had, as we have before said, might have been corrected, if the attention of the trial justice had been called thereto by a special prayer on the part of the defendant. The reasonableness of the need of these extraordinary precautions at a particular point is very largely a question of law, and should only be submitted to the jury when there is evidence tending to show the existence of a situation and circumstances peculiar and exceptional in their nature. Delaware Railroad Co. v. Converse, 139 U. S. 469, 473; State, use of Foy, v. P. W. & B. Railroad Co., 47 Md. 76, 85; Haas v. G. R. & I. Railroad Co., 47 Mich. 401, 406. That this is the doctrine also of Railroad Co. v. Ives, szifra, we think appears in the following quotation from the opinion therein: “As a general rule it may be said that whether ordinary care or reasonable prudence requires a railroad company to keep a flagman at a crossing that is especially dangerous, is a question of fact for a jury to determine under all the circumstances of the case, and that the omission to station a flagman at a dangerous crossing may be taken into account as evidence of negligence; although in some cases it has been held that it is a question of law for the.court. It seems, however, that before a jury will be warranted in saying, in the absence of any statutory direction to that effect, that a railroad company should keep a flagman or gates at a crossing, it must be first shown that such crossing is more than ordinarily hazardous ; as for instance, that it is in a thickly populated portion of a town or ■city; or that the view of the track is obstructed by the company itself or by other objects proper in themselves; or that the crossing is a much travelled one and the noise of approaching trains is rendered indistinct and the ordinary signals difficult to be heard by reason of bustle or confu — 174 — sion incident to railway or other business ; or by reason of some such like cause ; and that a jury would not be warranted in saying that a railroad company should maintain those extra precautions at ordinary crossings in the country.” As this case must be tried anew it is proper to say that under the evidence with respect to the character and uses of this crossing, the court would not be justified in submitting to the jury the question whether the omission to have a flagman there was negligence on the part of the defendant. For this reason, however, and especially if it should transpire that the ordinance making it unlawful to give the ordinary warnings by ringing the bell and sounding the whistle, on the approaching engine, was then in full force, greater care ought to be observed by those in charge of the train with respect to controlling its rate of speed and keeping a close lookout ahead, in order to avoid injury to persons lawfully using the crossing. 4. The last assignment of error is founded on the exceptions taken to the special prayer of the plaintiff, defining the measure of damages, which was given in the charge to the jury. It reads as follows: “ The jury is instructed that if they find for the plaintiff, the measure of damages is the pecuniary loss sustained by the widow and the next of kin by reason of the death of the deceased; that in estimating damages the jury are to take into consideration any prospective inheritance the widow and next of kin of the deceased might reasonably have expected to derive from him — any prospective support that would have been received — and also the value of his paternal advice and guidance, and this is to be considered with reference to any minor child who was living, with him, in so far as the jury may be able to fix a pecuniary value upon it. To such extent as the jury may find that they were of pecuniary value you will take that pecuniary value into account in estimating the damages, and in estimating — 175 — the damages with reference to the items of prospective inheritance, gifts and legal support, maintenance, the health and strength of the deceased, and his advice and counsel, the jury should take into consideration the nature of the employment of the deceased and the remuneration therefor, together with the prospective duration of his life.” Several distinct objections are made to the correctness of this instruction, which will be separately considered. (i.) The first is, that the jury were instructed to consider, in estimating the damages sustained, the value of the prospective gifts by the deceased in case he had lived out the ordinary expectation of his life. Deceased left four children — all sons — and a widow who died before the trial. Three of these sons were from twenty-five to thirty-four years old; the fourth was about twenty. They were unmarried and lived with their father, paying no board. The three older ones were at work and receiving wages ; but it does not appear that they contributed to the maintenance of the family. Deceased was fifty-nine years old, in vigorous health, and labored under no physical disability. He owned property worth from $8,000 to $10,000, including his home, and was a carpenter, earning at the time about $3.00 per day. Under Lord Campbell’s act and the statutes copied or adapted therefrom — the act of Congress under which this suit is maintained being of the same general purport — it has been generally held that children and next of kin are not necessarily limited, in the estimate of their damages, to that which they had a legal right to expect from the deceased during the ordinary continuance of life ; but that any evidence showing the receipt of gifts or the performance of valuable services, under such circumstances as that their continuance might be deemed reasonably probable during the life of deceased, might also constitute a basis of estimate in assessing the damages. District of Columbia v. Wilcox, 4 App. D. C. 90. And the courts have generally been quite liberal in sustaining verdicts based on such evi — 176 — dence. There must, however, be some evidence to justify the submission of an item of damages of that kind to the jury. Dalton v. Railroad Co., 4 C. B. (N. S.) 296; S. C. 93 E. C. L. 296; B. & O. Railroad v. State, 63 Md. 135, 145; C. & N. W. Railroad Co. v. Bayfield, 37 Mich. 205; St. L., A. & T. Railroad Co. v. Johnston, 78 Tex. 536, 542; C. & N. W. Railroad Co. v. Swett, 43 Ill. 197, 205. There is no evidence in this case tending to show that deceased ever made a gift to his sons, or that they had any expectation thereof. The widow and minor son were entitled to support from the father; the adult sons were not. As, however, the evidence shows that the deceased gave them their board, and that they had reason to expect a continuance of his bounty in that regard, it is contended that this furnished a foundation for consideration of gifts. This is plausible, and might be sufficient were it not that the jury had already been expressly charged to consider in their estimate “ any prospective support that would have been received.” In the very sentence, too, in which the word “ gifts” is used', the next following words are, “and legal support, maintenance.” Necessarily, therefore, the effect of the instruction was to permit the amount that might be assessed for prospective support to be increased by an allowance for the value of prospective gifts. The objection must be held to be well taken. (2.) Where minor children have lost a mother, through the negligent act of another, the loss of her care, education and training have often been declared an element of pecuniary injury, proper to be considered by the jury in the assessment of compensatory damages. The leading case, universally cited in support of this proposition — Tilley v. Railroad Co., 29 N. Y. 252 — goes to the extreme length of saying that this should not be limited to the termination of minority even. And the same general rule, without this extreme .application, has been applied in the case of the death of a father also. Stoher v. S. L. & C. Railroad Co., 91 Mo. 511, 518; Kelly v. C. S. & S. P. Railroad Co., 50 — 177 — Wis. 381; B. & O. Railroad Co. v. Weightman, 29 Gratt., 436, 443; Howard v. Legg, 93 Ind. 523, 530; Searle v. Railway Co., 32 W. Va. 370, 376; C., R. I. & P. Railroad Co., v. Austin, 69 Ill. 426, 429. In this last case, however, it was said that before the submission of that item of damage there must be evidence tending to show capacity on the part of the parent, by nature, education and disposition, to furnish education and training. Granting the soundness of the rule in the case of minor children, there would seem to be no good reason in extending the compensation for such loss, in the case of either parent, beyond the period of minority. The instruction under consideration in this case included not only the assessment of the value of “ paternal advice and guidance ” — which may probably be considered the equivalent of education and training — to the son who was not twenty-one years of age, but also that of “ advice and counsel” to the three grown sons, the oldest of whom was thirty-four. We think this carried the doctrine entirely too far. It is quite generally conceded that the damages to be assessed under statutes of this kind must be of a pecuniary nature. Now, we can readily conceive how, under many circumstances, the advice and counsel of a good and sensible father might be of inestimable moral value to a son of mature years even; but we cannot see how an assessment •of pecuniary damages can reasonably be founded thereon. It is too remote, vague and uncertain to be considered in the estimation of pecuniary injury and compensatory damages therefor. Liberal as the interpretations of the statutes have deservedly been, they have never been held to require the giving of a gratuity. “ The recovery is to compensate a loss and not to confer a bounty.” St. L. A. & T. Railroad Co. v. Johnston, 78 Tex. 536, 542. (3.) The point of greatest difficulty in this case is the direction to the jury to take into consideration, in. estimating •damages, “any prospective inheritance the widow and next — 178 — of kin of the deceased .might reasonably have been expected to derive from him.” To the technical objection that the widow could not take anything by inheritance, it may be answered that, conceding the verbal inaccuracy of the reference to her, no harm could have resulted therefrom. The whole value of the possible inheritance would have had to be assessed anyhow, even if the widow had been expressly excluded. Under the peculiar terms of our statute, whatever may be recovered on account of a special injury to one, inures to the benefit of all, and the defendant has no right to complain. District of Columbia v. Wilcox, supra. The language of this instruction has the sanction of Tiffany, in his treatise on Death by Wrongful Act (sec. 160 and cases cited), which is strongly relied on by appellee. We will not consume time with a review of the cases cited. It is sufficient to say that after careful consideration we have not been satisfied with the soundness of their reasoning. As has been before intimated, the latitude permitted to a jury in the assessment of damages for loss sustained by death, has necessarily, and not unjustly, been very great. By their very nature the items of damage which have generally been recognized as proper matters of consideration do not admit of calculation approximating mathematical certainty, yet they have been generally sufficient to the ends of justice, tempered as they have been by the undoubted power of the trial judge to set aside verdicts clearly unreasonable and excessive. The natural sympathies of juries likely to be excited in such cases must be under some just and reasonable restraint. They should not be permitted to roam at will the whole field of speculation in the search for remote possibilities of damage that may be taken into account to swell the aggregate of their verdict. If they are permitted to do so by the sanction of the law, by what right shall a court undertake to reduce the amount of a verdict to such sum as the trial judge may deem fair and reasonable, by requiring a remittitur, under penalty of a new — 179 — trial ? Would it not be arbitrarily substituting trial by the court for the trial by jury, which latter is as much the right of the defendant as of the plaintiff? Let us consider a few of the contingencies which beset inquiry into the possible benefits which next of kin might receive in the way of inheritance from the deceased. There are the uncertainties of life and the continuation of apparent perfect health and strength to labor and accumulate; the indisposition as well as the inability of approaching age to continue the labors and endure the privations of earlier years ; the reasonable disposition of age to enjoy more and more the fruits of early toil and self-denial, and the possibility of the consumption of savings in necessary support, if life should be unexpectedly prolonged ; the probabilities, of unfortunate and disastrous investments, and all the unforseen misfortunes that attend upon the management of human affairs; the prospect of the diminution of the estate by the very gifts, advances, support and maintenance which of themselves form an element for the separate assessment of damages; and lastly, the possibility that the deceased may by will cut off all possible enjoyment of his estate by the next of kin. Suppose that, in this instance, the deceased had left a will disinheriting his sons, could they have recovered for a probable or possible loss of inheritance by his death ? If so, it could be upon the conjecture only, that had he lived he might have destroyed the will and died intestate at last. These considerations, it seems to us, make it extremely unlikely that Congress, in passing this act, contemplated its extension to such damages. Had it intended to make the damages recoverable under the statute arbitrary and absolute, as in the nature of a penalty, it would have been easy and most natural to say so. The case of Railroad Co. v. Barron, 5 Wall. 90, is relied upon as necessarily controlling the decision upon this point. That case, it is true, goes very far in support of appellee’s contention, and we have heretofore followed it on a ques — 180 — tion of pleading damages under the statute in the case of District of Columbia v. Wilcox, supra. But we do not regard it as necessarily controlling on the point here in question. That case arose in Illinois under the statute of that State, which, however, must be admitted to be of the same general purport as that prevailing hete. This point was passed over with brief notice, and it would seem from the references in the opinion that the charge below was deemed in accord with previous decisions of the Supreme Court of Illinois involving a construction of the same statute. Since then the Supreme. Court of Illinois has brought the statute, by construction, within the principle for which we contend. C. & N. W. Railroad Co. v. Swett, 45 Ill. 197, 204. We have been able to find no case in which the Supreme Court of the United States has construed the act of Congress with reference to this precise point. By analogy, however, our view is supported by a recent decision of that court on writ of error to the Supreme Court of this District. B. & P. Railway Co. v. Mackey, 157 U. S. 72. In that case the charge to the jury was this: “Now, manifestly, you cannot estimate in dollars and cents exactly what the damages are in a case of this kind, if there be any at all. That is not possible. But you may and you should take into consideration the age of the man, his health and strength, his capacity to earn money as you discover it from the evidence, his .family — who they are and who they consist of — and then, gentlemen, from all the facts and all the circumstances, make up your mind how much this family, if anything, probably lose by his death, and that would be how much had this family a reasonable expectation of receiving ; how much had they a reasonable expectation of receiving, while he lived, if he had not been killed.” That charge plainly followed the prevailing rule in the construction of such statutes, that the damage of the family is the loss of what they were accustomed to receive and had a reasonable expectation of receiving during the probable continuation of the life. To that end evidence of — 181 — the age, health, probable duration of life, earnings and capacity to earn money, has almost universally been held admissible. The foregoing charge met with the approval of the court, and the judgment was affirmed. The history of the proceedings in this case, we think, forcibly illustrates the reason, of the rule for which we have expressed our preference. Deceased had but the four children, all sons. Three of these had long passed majority; the fourth was nearly of age. None of them labored under mental or physical disabilities. Deceased, who was fifty-nine, was earning about three dollars a day as a carpenter-Unaided, he was supporting the family and giving them a home. There would seem but little room here for additions to his estate through his labor. The jury returned a verdict for $7,000, one-half of which the trial justice caused to be remitted under the penalty of a new trial in case of refusal. For the errors pointed out, the judgment must be reversed with costs to the appellant, and the cause remanded for a new trial; and it is so ordered. On May 27, 1895, Mr. Arnold and Mr. Wilson, on behalf of the appellee, filed a motion for a.rehearing. On June 18, 1895, counsel for both parties were allowed to file briefs as to the correct measure of damages, on or before October 14, 1895. On November 6, 1895, the motion for rehearing was overruled.