Baltimore & Ohio R. R. v. State ex rel. Kelly

Cochran, J., delivered the opinion of this Court. This suit was brought by the appellee, under the Act of 1852, ch. 299, to recover damages resulting from the death of William Kelly, which it is alleged was caused by negligence on the part of the appellant. The exception, on which the case was brought up, contains evidence of the age, habits, health and employment of the deceased, at the time lie lost his life, and also of the members of his family; that he supported them by his labor, and that after his death his widow supported herself and child by her own exertions. All the prayers of the appellant were granted excepting the 5th ; and by the 7th, the last of the series, the jury were instructed that in assessing the damages they should confine themselves to such compensation to the surviving members of Kelly’s family, as would supply to them the same results as would have been afforded by his labor during the probable period he would otherwise have lived and earned a livelihood ; but that they might take into consideration his age, health and occupation, and the comfort and support afforded his family at the time of his being killed. ²⁸⁰ The proposition submitted by the 5th prayer, to the rejection of which this exception was taken, was that, in the absence of proof as to the wages or earnings of Kelly, no standard was shown by which the jury could find the amount of damages sustained, and that their verdict should, therefore, have been for nominal damages only.

Vindictive or punitive damages were not claimed, and, indeed, as we have recently held, punitive damages are not recoverable in such a case as this, under the Act of 1852. But looking to the concession made in the 1th prayer, that the jury might, in assessing the damages, take into consideration the age, health and occupation of the deceased, as well as the comfort and support afforded by him to his family, it -is a little difficult to understand why the appellant should be allowed to insist on the doctrine propounded by the rejected prayer. Without, however, disposing of the question on that ground, let us inquire whether this prayer is otherwise free from objection. It is admitted that there was no evidence of the specific-wages paid to Kelly at the time of his death, although there was proof of the character of his occupation, as well as of the fact that he was in the employ of the appellant.

The prayer goes on the theory, that the rate of wages, paid at the time of the death, was the true and exclusive standard of the damages sustained, and, in the absence of proof on that point, that nominal damages only could be recovered. So far as we have been able, to learn, this proposition is not only unsupported by any direct authority, but too strict in its character to admit of general application. The adoption of it in this case, would have withdrawn from the consideration of the jury a mass of evidence that