Myers v. City of San Francisco

By the Court, Sprague, J.: This is an action for damages under the statute of April 26th, 1862, entitled “An Act requiring compensation for causing death by wrongful act, neglect, or default.”

The person whose death is alleged to have been caused by the negligence and carelessness of defendant’s employé, was the infant daughter of plaintiff, about seven years of age, who, as is alleged, was run over and crushed to death by a steam fire engine while being driven at a furious and [217]dangerous rate of speed, and in a negligent and careless manner, the said engine being the property and under the control and management of defendant, and driven by its employé.

The questions of carelessness and negligence of defendant and the contributory negligence of the deceased infant, were fairly submitted to the jury, and, I think, the evidence fully justified the conclusion at which, from their verdict, they appear to have arrived. __

The rule, or measure of damages claimed by appellant, is manifestly untenable under the statute.

The jury having determined that the death of the plaintíju. „ intestate was caused by the wrongful negligence of defendant, the first section of the Act renders it liable to an action for damages; and the third section most clearly authorizes the jury, when such liability is established, to give damages beyond the pecuniary loss sustained by the next of kin.. The language of the section is: “In every such action the jury may give such damages, pecuniary and exemplary, as they shall deem fair and just, and may take into consideration the pecuniary injury resulting from such death to the wife and next of kin of such deceased person.”

The statute, then, having authorized the jury to give exemplary damages, when the death is caused by the simple negligence of defendant, the discretion of the jury in fixing the amount of such damages should not be interfered with by the Court, except in cases of most palpable abuse of such discretion. The statute supersedes the common law rule, and must control. Most of the States have statutes authorizing actions by personal representatives, or next of kin, of deceased persons against the person or corporation through whose simple or willful negligence the death was occasioned; but our statute, upon the matter of damages authorized, is essentially different, and less restricted than [218]