Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1914-07-03

the effect that the disease would not be
chronic disease under this provision
unless the jury were satisfied by a pre-
ponderance of the evidence that the
plaintiff suffered with 1t when he made
the application, was erroneous and preju-
dicial as it forced the jury to apply
test unwarranted by the condition of the
policy and to render a verdict in excess
of what it might have been had the cor
rect Interpretation been given.
Exceptions sustained. &c..
Received June 50. 1914. +---s.-r--5
$50 Pc -
Robert P Curran, admir-, vs.. Lewiston,
Augusta & Waterviiie Street Railway
Co, Rescript. Spear. ].
This is a motion by the defendant for a
new trial. The jury found for the plain
tiff in the sum of 1871.
The action was to recover for injuries
which resulted in the immediate death
of the plaintiffs intestate, eight years of
age, and is brought by the plaintiff as
administrator for the benefit of her sur
viving father and mother. The evidence
shows that the decedant, who was with
other children in the street ran ahead
of her companions, walked toward the
track, crossed the outer rail and re-
manned standing on the track looking
toward the other children, with the car
approaching from the rear. There she
stood until the accident happened. From
the evidence the jury were warranted
in finding that the motorman could, if
observing, have seen the little girl stand
ing on the track at any point within a
distance of 400 feet from her After he
saw her, had he been in the exercise of
due care, it seems evident that he might
have stopped his ear before reaching her.
The evidence further warranted the jury
in finding that the ear was running
through this thickly settled community
at a speed of 20 to % miles an hour,
which, in the minds of the jury, may
have been regarded as negligent rate
of speed, in view of the fact that it was
the duty of the motorman to anticipate
the dangers that were liable to happen
and provide against them,
Chapter q, Public Laws, 1913, express
| ly provides:
I'm actions to recover damages for neg
! ligently causing the death of a person,
or for injury to person who is deceased
at the time of trial of such action, the
person for whose death or injury the ac-
ton is brought shall be presumed to have
| been in the exercise of due care at the
/ time of all acts in any way related to
his death or injury, and If contributory
negligence be relied upon as defense 1t
shall be pleaded and proved by the de-
PENDANT" The language of the statute
/ lit 40 in I1fn
i in this case was not pleaded. The de-
PENDANT, accordingly, was precluded from
offering any evidence tending to prove
contributory negligence. In other words
contributory negligence, if it existed on
| the part of the decedent, was not in is
sue under the pieadngs.
This brings us to the question of
damages Upon this issue the court is
of the opinion that the damages were
I clearly excessive. The fight to recover
damages at all in this. class of cases is
purely statutory. There was no common
i law action. We are, therefore, confined
to the express language of the statute
r. S Chapter 50. Section 10 provides:
The jury may give such damages as
they shall deem a fair ana just compen-
sation. not exceeding 5000 with reference
to the pecuniary injuries resulting from
such death to the persons for whose
benefit such action is brought.
The measure of damages in this class
of cases is based entirely upon the pro-
spective peeuniary benefit, which the de-
cedent, at a given age. can be anticipated
to furnish his beneficiary. The decedent
in this case was eight years old The
difficulty with the jury, and even with
the court, in considering the question Of
| damages under this statute. is to separ-
ate the cold blooded fact of pecuniary
value from those emotions of sentiment
and affection, which regard the loss of a
child or a parent as beyond money and
/ without price. 1t is the duty of the
court. however, regardless of sentiment,
to observe the clear mandate of the stat
ute and finally fix the measure of dam
ages in accordance herewith In obedi-
epee to this duty it is the opinion of the
court that the plaintiff is entitled to re-
/ cover the sum of $500.
/ Motion sustained unless the plaintiff
within thirty days from the certifcation
of this case shall file remttitur of the
verdict in excess of $500.
! Received June 50, 1914.