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reason for denying his estate relief. Such negligence would prevent a recovery by the parents in their own right. But it appears to us to be unjust and contrary to reason to hold that the irresponsible child should be responsible for the wrongful acts of his parents or others who may have him in charge. He is incapable by himself of committing any act of negligence, and cannot authorize another to commit one; therefore it seems unreasonable to require him or his estate to suffer loss because of the neglect or unauthorized acts of his parents or others. . . . II. It is claimed that appellant ought not to recover, for the reason that it is not shown that the parents of the child were free from contributory negligence, and, since they inherited his estate, the rule which would bar a negligent parent from recovering in such a case in his own right ought to apply. But plaintiff seeks to recover in the right of the child, and not for the parents. It may be that a recovery in this case will result in conferring an undeserved benefit upon the father, but that is a matter which we cannot investigate. If the facts are such that the child could have recovered, had his injuries not been fatal, his administrator may recover the full amount of damages which the estate of the child sustained. The judgment of the District Court is reversed.

650. WOLF v. LAKE ERIE & WESTERN RAILROAD

COMPANY

SUPREME COURT OF OHIO. 1896

55 Oh. 517, 45 N. E. 708

ERROR to Circuit Court, Mercer county. Action by Amos Wolf, administrator of Tony Meyer, against the Lake Erie & Western Railroad Company.

The deceased, Tony Meyer, aged fourteen months, the son of George Meyer and Viola V. Meyer, was killed by a train on the Lake Erie & Western Railroad on the 9th day of Spetember, 1893. Thereupon Amos Wolf was appointed administrator of his estate, and brought an action against the railroad company, seeking to recover the sum of $1,999 damages for the negligent killing of said Tony Meyer. . .

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BURKET, J. (after stating the facts). The petition avers that the railroad company wantonly, carelessly, and negligently so operated its train of cars as to cause the death of the child Tony Meyer. This is denied by the answer of the company, and in the said second defence of its answer it charges that the parents of the boy wilfully and carelessly left the gate open, and carelessly and negligently permitted the child to wander through the gateway out upon the railroad track, where it was killed without the fault or negligence of the railroad company or its employees.

The action was brought under sections 6134, 6135, Rev. St. . .

"Sec. 6135. Every such action shall be for the exclusive benefit of the wife, or husband, and children, or if there be neither of them then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person; and in every action the jury may give such damages, not exceeding in any case ten thousand dollars, as they may think, proportioned to the pecuniary injury resulting from such death to the persons, respectively, for whose benefit such action shall be brought."

The action given by this section is for the exclusive benefit of the wife or husband and children, or, if there be none, then for the parents and next of kin. The petition in this case avers that the deceased left his two parents as his next of kin surviving him, and further avers that these patents have sustained damages by said wrongful death in the sum of $1,999. So that this action is brought and prosecuted for the exclusive benefit of the parents of the little boy, - the same persons who admit, by their demurrer, that by their wilful, careless, and negligent conduct they contributed towards the death of the little boy. What shall cause a liability for damages to arise is carefully stated in section 6134, but what shall constitute a defence of either section, is left to the same principles as in other like cases.

The great weight of authority is to the effect that in actions brought by a parent for the loss of the services of his child by reason of its wrongful or negligent injury by another the contributory negligence of the parent will defeat his recovery. . . . As the parent cannot recover for loss of services when he himself contributed to the injury which caused the loss, can the intervention of the personal representative, who is a mere trustee, having no interest either for himself or the estate he represents, shield him from the usual consequences of such negligence? I should say not. . . . To award damages to a parent guilty of contributory negligence in such cases would permit him to profit by his own wrong, and besides it would be in direct conflict with the universal rule as to contributory negligence.

In those States like Virginia, Louisiana, Iowa, and perhaps others, in which the damages arising from the wrongful death survive, and become a part of the estate of the deceased, and are inherited from the estate by the named beneficiaries as heirs, the contributory negligence of such heirs does not constitute a defence to an action brought by an administrator for the recovery of such damages, because the damages are part of the estate, and the estate is cast upon the heirs by operation of law. It was this principle that determined the case of Wymore v. Mahaska County, 78 Iowa, 396, [supra, No. 649,] and that case and other cases founded upon the same principle are therefore not applicable to the question here under consideration. . .

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But it is otherwise as to a recovery for damages under our statute. ... The contributory negligence of the beneficiaries, who are to receive

the damages, and for whose benefit the action is brought, in the name of the administrator, is clearly a defence to the action available to the person or corporation causing the injury. . . .

As the statute stood when Railway Co. v. Crawford, 24 Ohio St. 631, was decided, the damages were assessed by the jury in a lump sum, for all the beneficiaries jointly, and all had to stand or fall together; and therefore it was held that the contributory negligence of one should not defeat the action, because thereby those beneficiaries who were innocent would be made to suffer for the negligent acts of one over whom they had no control, and for whose acts they were not in any manner responsible. A recovery was therefore permitted, even though one who was guilty of contributory negligence should share in the damages, thus bringing the case within the principle that the rights of the innocent must be protected, even though thereby the guilty reap some benefit. . . . Shortly after the report of the Crawford Case, the statute was amended so as to require the jury to give such damages as they may think proportioned to the pecuniary injury resulting from such death to the persons, respectively, for whose benefit such actions shall be brought. This word "respectively" requires the jury to assess the damages for the beneficiaries distributively; that is, ascertain how much pecuniary injury each beneficiary singly has sustained, and then bring in a verdict in gross, made up of these single sums combined, the whole not to exceed $10,000. . . . It therefore seems clear that, in arriving at the total amount of damages to be awarded under the statute as amended, the jury should consider the pecuniary injury to each separate beneficiary not found guilty of contributory negligence, but return a verdict for a gross sum, which sum should be distributed among the beneficiaries not found guilty of contributory negligence. As to beneficiaries found guilty of contributory negligence, no damages should be awarded on their account, and the jury should find in its verdict which, if any, of the beneficiaries were guilty of such contributory negligence. This would no more complicate the trial than is usual in trials for torts, in which it often occurs that some are discharged, and others held liable. . .

This throws no clog in the way of the prosecution of the action by the administrator, and awards damages to those who are without fault, and does not reward those who contributed to the injury. . .

1 [PROBLEMS:

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Judgment affirmed.1

The defendant sold a poison, instead of a medicine, to the plaintiff child's mother. The mother left it on a shelf, not knowing it to be poison. The child drank of it. Is the defendant liable to anybody? (1898, Wise v. Morgan, 101 Tenn. 273, 48 S. W. 971.)

The deceased child was at home with the mother and two adult sisters; the father was down town. The child, who had been playing in the yard, wandered thence to the tracks of the defendant railroad, and was killed by the defendant's fault. In an action by the administrator, is the defendant liable? (1907, Illinois C. R. Co. v. Warriner, 229 Ill. 91, 82 N. E. 246.)

(2) Passenger

651. THOROGOOD v. BRYAN

COMMON PLEAS. 1849

8 C. B. 115

THE first of these was an action upon the case brought by the plaintiff Sarah Thorogood, as administratrix of her late husband, Charles Abraham Thorogood, under the statute 10 Vict. c. 93, to recover damages against the defendant for negligently causing the intestate's death.. The defendant pleaded not guilty, whereupon issue was joined.

The cause was tried before V. WILLIAMS, J., at the sittings in Middlesex, after Trinity Term, 1848. The facts that appeared in evidence were as follows:- On the 3d of January, 1848, Charles Abraham Thorogood, the husband of the plaintiff (whose administratrix she was), was a passenger in an omnibus belonging to one Barber, in which he was proceeding towards Clapton, at about eight o'clock in the evening. The defendant, Mrs. Bryan, was the proprietress of another omnibus running on the same line of road. Both vehicles had started together, and frequently passed each other, as either stopped to take up or set down a passenger. The deceased, wishing to alight, did not wait for the omnibus to draw up at the kerb, but got out whilst it was in motion, and far enough from the path to allow another carriage to pass on the near side. The defendant's omnibus coming up at the moment, the deceased was unable to get out of the way, and was knocked down and run over, and, seven days afterwards, died of the injuries he so sustained. . . . The learned Judge told the Jury, that if they were of opinion that the injuries sustained by the deceased were purely the result of accident, they must find for the defendant: and he further told them, that, if they were of opinion that want of care on the part of the driver of Barber's omnibus in not drawing up to the kerb to put the deceased

ESSAYS:

John H. Wigmore, "Contributory Negligence of the Beneficiary as a Bar to an Administrator's Action for Death." (I. L. R., II, 487.)

NOTES:

"Contributory negligence of beneficiary." (H. L. R., IV, 143; IX, 282; X,

529.)

"Imputed negligence: Imputing negligence of parent to child in parent's suit for death of child." (H. L. R., XXI, 636.)

"Statutory actions: Negligence of beneficiary affecting action for death by wrongful act." (H. L. R., XXI, 639.)

"Contributory negligence of a beneficiary." (H. L. R., XXIII, 299.) "Contributory negligence of parent's agent bars recovery for child's death." (M. L. R., II, 630.)

"Imputing parent's negligence to child." (M. L. R., II, 735.)

"Contributory negligence of parent imputed to child." (M. L. R., III, 166.) "Negligence - Imputing parent's, to child." (M. L. R., IV, 79, 167.)]

down, or any want of care on the part of the deceased himself, had been conducive to the injury, in either of those cases, notwithstanding

the defendant (by her servant) had been guilty of negligence, — their verdict must be for the defendant. The jury returned a verdict for the defendant.

Humfrey, in Trinity Term, 1848, obtained a rule nisi for a new trial, on the ground of misdirection. He submitted that the ruling of the learned Judge would necessarily lead to this absurd result, — that a passenger who is injured by a collision between two omnibuses has no remedy against the proprietor of either, if the drivers of both are guilty of negligence or improper conduct. . . .

Talfourd, Serjt., now showed cause. The direction of the learned Judge was perfectly correct. . . . (CRESSWELL, J. Must not then negligence which is to exonerate the defendant, be negligence of the plaintiff, or of his agent?) It is submitted, not: at all events, the driver of the omnibus in which the deceased was a passenger, must be taken to be his agent. (CRESSWELL, J. Suppose two omnibuses are racing, and one of them runs over a man who is crossing the road, and has not time to get out of the way, has not the injured party a remedy against the proprietor of either omnibus?) No doubt he has. (CRESSWELL, J. It seems strange to say that A shall not be responsible for his negligence, because B has been negligent likewise, -C being the party injured.). .

Humfrey (with whom was Cobbett), in support of the rule. Bridge v. The Grand Junction Railway Company [cited ante, in No. 633] does not apply. . . . It would be monstrous to say that the plaintiff is without remedy against either party. Put the case of a passenger on board a steamboat, sitting in a place appropriated for passengers, and getting his leg broken by another steamboat coming in collision with them, what remedy would he have against the proprietors of the boat he was on board of? . . .

The Court, before pronouncing judgment in this case, desired to hear the argument of Cattlin v. Hills and Others, a case involving very much the same question.

Cattlin v. Hills and Others. This was an action upon the case brought by the plaintiff, who carried on the business of a seal-engraver, to recover damages from the defendant, the registered owners of the "Diamond" Gravesend steamboats, for an injury sustained by him whilst a passenger on board another steam vessel, in consequence of alleged negligence on the part of the servants of the defendants. The jury, under this direction, returned a verdict for the plaintiff, damages £900. . . .

COLTMAN, J. The case of Thorogood v. Bryan seems distinctly to raise the question whether a passenger in an omnibus is to be considered so far identified with the owner, that negligence on the part of the owner or his servant is to be considered negligence of the passenger himself.