to prove the probable continuance of life. In Central R. R. Co. v. Thompson (") Jackson, C. J., said: "The tables prepared for life insurance do not contemplate at all ability to work, and how long that ability will continue, and how much it will decrease as age increases, but those tables only calculate life's duration, however feeble and incapable of labor that life will be in old age." So any disease of the deceased that would tend to shorten his life, may be shown upon the question of the probable continuance of life. Thus it may be proved that the deceased was suffering from a pulmonary disease.()

§ 582. Excessive verdicts.-Verdicts given under this statute have very properly in some cases been held excessive. In McIntyre v. New York C. R.R. Co.,(©) the deceased was a widow nearly fifty years old, and left three children-two married, and living by themselves. Her services would command $1 per day, besides board. Her expectation of life by the tables was ten years. The jury found a verdict for $3,500. It was held that in all probability, before ten years expired, she would have become dependent on the children, and that the verdict was therefore excessive. In Lehman v. Brooklyn,(“) where the suit was by the father for the death of his son four and a half years old, and the verdict was for $1,500, the damages were held to be excessive, since for ten years deceased would have been a burden, and for the next

western R.R. Co., 41 Ga. 223; Georgia R.R. Co. v. Pittman, 73 Ga. 325; Donaldson v. Mississippi & M. R.R. Co., 18 Ia. 280; Scheffler v. Minneapolis & St. L. Ry. Co., 32 Minn. 518; Sauter v. New York C. & H. R. R.R. Co., 66 N. Y. 50; Mulcairns v. Janesville, 67 Wis. 24; McKeigue v. Janesville, 68 Wis. 50.

(*) 76 Ga. 77, 783.

() Columbus & W. Ry. Co. v. Bridges, 86 Ala. 448.

(c) 47 Barb. 515.

(d) 29 Barb. 234.

§ 583.

REDUCTION OF DAMAGES.

219

seven would have done well if he supported himself, and that the damages should therefore have been nominal. In Mitchell v. New York C. R.R. Co.,(^) the deceased was a wife twenty years old. There was no proof of special damage, nor any evidence of her capabilities, mental or physical, nor of her situation and circumstances in life, nor how she could be of benefit to her husband and next of kin. A verdict of $4,000 was held to be unauthorized by the proof. A discussion of the correctness of a verdict of $5,000, where deceased was unmarried and without children, but left next of kin, is to be found in Bierbauer v. New York C. R.R. Co.(*) But the damages were declared insufficient in Mariani v. Dougherty, () where the deceased, being a house-painter and paper-hanger, fifty-six years old, who made from four to seven dollars a day, had four sons and one daughter, all of age, except one son ten years old being with and dependent upon his father. The jury gave a verdict of $200. It was held a "mockery of justice" to assess the damages so low.

§ 583. Reduction of damages.-That the acquisition of property by the plaintiff, from the death of the deceased cannot be shown in diminution of damages is apparent, from the consideration that there is no advantage obtained, since the property would ultimately vest in the plaintiff on the natural death of the deceased, and that it is for the intermediate pecuniary loss that the action is given by the statute. (4) In Sherlock v. Alling,(*) an action brought under the statute, the question was raised whether the receipt of a sum of money by the persons for whose benefit the action was prosecuted, on account

(*) 2 Hun 535.

() 15 Hun 559.

(©) 46 Cal. 26.

(d) Terry v. Jewett, 78 N. Y. 338.

(*) 44 Ind. 184, 200.

of a policy of insurance on the life of the deceased, could be shown to reduce the amount of the recovery, and it was held that it could not, the court saying: "To allow such a defense would defeat actions, under the law, when the party killed had, by his prudence and foresight, made provision or left means for the support of his wife and children; and the wrong-doer would thus be enabled to protect himself against the consequences of his own wrongful act."(*) Nor can the damages recoverable by a husband for the death of his wife be reduced by showing that he has married a second wife who performs the services formerly performed by the first wife. ()

584. Exemplary damages.-Exemplary damages cannot generally be recovered in actions for death. () So in Conant v. Griffin() it was said to be erroneous to admit evidence as to the wealth of the defendant, with a view to giving exemplary damages in an action under the statute. In some States, however, such damages are expressly allowed by the statute.()

$585. Contributory negligence.-* In England it has been held that the rule of the common law is applicable

(a) Acc. Western & A. R.R. Co. v. Meigs, 74 Ga. 857; Althorf v. Wolfe, 22 N. Y. 355; North Pennsylvania R.R. Co. v. Kirk, 90 Pa. 15; Harding v. Townshend, 43 Vt. 536, where the case of Hicks v. Newport, A. & H. Ry. Co., 4 B. & S. 403, a Nisi Prius case. holding the opposite doctrine, is adversely commented on.

() Davis v. Guarnieri, 45 Oh. St. 470.

(c) Smith v. London & N. W. Ry. Co., 2 E. & B. 69; Louisville & N. R.R. Co. v. Orr, 8 So. Rep. 360 (Ala.); Thompson v. Louisville & N. R.R. Co., 8 So. Rep. 406 (Ala.); Kansas P. R.R. Co. v. Miller, 2 Col. 442; Pennsylvania R.R. Co. v. Henderson, 51 Pa. 315.

(4) 48 Ill. 410.

() Myers v. San Francisco, 42 Cal. 215; Chiles v. Drake, 2 Met. (Ky.) 146; Bowler v. Lane, 3 Met. (Ky.) 311; Kentucky C. R. R. Co. v. Gastineau, 83 Ky. 119; Kansas City, F. S. & M. R.R. Co. v. Daughtry, 88 Tenn. 721; March v. Walker, 48 Tex. 372.

$585.

CONTRIBUTORY NEGLIGENCE.

221

to this statute; that the action is to be treated as if the injured party had brought it; and that, if his negligence contributed to the disaster, the plaintiff cannot recover.' Such, too, is the doctrine in this country. So, in New York, where a lunatic, in charge of his father, was killed by being run over by a railway car; but it appeared that his death was owing, not to the negligence of the railway company or its agents, but to the carelessness of the father of the lunatic, it was held that no recovery could be had.** But in Texas it has been held that killing a man by making him drink three pints of whiskey was actionable, though the experiment was made with the consent of the deceased. (*)

730.

Tucker v. Chaplin, 2 Car. & Kir.

? Willetts v. Buffalo & R. R.R. Co., 14 Barb. 585.

(*) McCue v. Klein, 60 Tex. 168.

if

586. Rules adopted in admiralty.-At common law, the plaintiff is not in fault, he recovers substantial damages. On the other hand, if the defendant can show him to have been guilty of contributory negligence, he recovers nothing. There is no attempt to apportion the loss. In courts of admiralty, on the other hand, where both parties are in fault, the rule is wholly different; though not strictly within the scope of this treatise, it may be advantageous here, having disposed of the subject of torts at common law, to consider briefly the effect of a different system of rules.

§ 587. Collision--Division of loss.-In cases of collision, where both vessels are in fault the sums representing the damage sustained by each, are added together and the aggregate divided between the two. This is in effect deducting the lesser from the greater, and dividing the remainder. The effect of this rule is that the vessel least injured contributes to the extent of half this remainder to the loss of the other vessel. Thus if one vessel is injured to the extent of $25,000, and the other to the

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