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proaching a crossing. But the question in the case was not whether or not a headlight affected persons generally, but what, if any, effect this particular headlight had on the deceased. There is an absolute want of evidence that the deceased saw the headlight at all. If he did not see it, then it could not have affected him. Whether he did or did not is mere conjecture. It would be as legitimate to assume that the deceased was asleep in his buggy and thus was oblivious to all his surroundings. This, of course, would be a mere conjecture, but it affords an illustration that one may conjecture one way as readily as another. The court gave the jury the whole law upon deceased's conduct when it instructed them that he was presumed to have exercised due care for his own safety. This presumption is well founded, because it is based upon that universal experience that all rational beings, both from instinct and their own experience, avoid serious danger to themselves. The request, therefore, was based upon the assumption that the deceased saw the headlight, and that he was "dazzled and deceived" by it. It is a mere guess as to whether a certain individual at a certain time and place, and under certain circumstances, will or will not observe a certain thing and be affected thereby. The court therefore did not err in refusing to give an instruction to the jury based 375 wholly upon the presumption of a fact from which the jury could only conjecture the result.

Error is also predicated on the refusal of the court to give the following request: "If the jury find for the plaintiffs, then they may take into consideration the probable value of the life of the plaintiff (meaning deceased) as judged from his earning capacity and from the number of years he was expected to live. His earning capacity is regarded in the nature of an asset." To appreciate the purpose of the request, it is necessary to state that it was offered with a view of overcoming the effect of certain evidence that was admitted on behalf of respondent in mitigation of damages, which evidence was to the effect that the deceased was engaged and was about to be married to the young lady at whose home he spent the night preceding his death. The evidence was admitted over the objection of appellants, and its admission is also urged as The court in another instruction charged the jury with regard to the damages to be allowed the appellants, limiting the recovery to such an amount as the deceased would probably have contributed to them from his earnings in view of all the evidence. No exception was taken to this instruction, but it is urged that the measure of recovery was not what

error.

Am. St. Rep., Vol. 125-56

the deceased would probably have contributed merely, but that it was the probable value of deceased's life. In this connection it is urged that in view of the evidence that the deceased was about to be married the jury might infer that he, after he married, would devote his earnings to his wife and prospective family, and hence the jury would assume that appellants would receive little or nothing from the deceased, and thus they may have found against appellants on the ground alone that appellants sustained no appreciable damages. It is contended that if this evidence had not been admitted, the jury might have found in favor of appellants upon the facts. We think the contention of appellants cannot be sustained. The measure of damages in a case like the one at bar is not the pecuniary value of deceased's life, but what was the pecuniary loss suffered by appellants by reason of his death. Under section 2912, Revised Statutes of 1898, the damages recoverable in a 376 case like the one at bar are such as "under all the circumstances of the case may be just." The amount that is recovered is not intended as an asset of the estate merely, but it belongs to those who have suffered or will suffer some direct pecuniary loss by reason of the death. The right of action is given for the benefit of certain persons only, and the amount of recovery is dependent upon the circumstances of each case, the relationship of the parties to the deceased, and in the case of the death of an adult child, the recovery is limited to the probable benefits the parents would have received during his lifetime from the deceased child. Such benefits are, however, not to be limited in all cases to mere contributions of money, but may consist of the various elements that enter into the domestic relations of parent and child, living in one family, or otherwise. In such cases the aim of the law is to repair in a pecuniary way the loss sustained by the parent. Under the evidence in this case the appellants would have been entitled to recover some substantial damages both under the law and the instructions of the court, if respondent was liable at all in the action. The jury, therefore, must have found, as they were justified in finding, that the respondent was not guilty of culpable negligence, or, if it was, that the deceased directly contributed to the accident by his own negligence, or, further, that the real or direct cause of the accident was not established by the evidence. All of these matters were submitted to the jury for determination, and their findings, in view that there is no prejudicial error in the instructions, are conclusive.

We need not discuss the question urged by respondent that in any event appellants cannot complain because the court should have directed a verdict against them as matter of law. Whether this should or should not have been done, in view of the conclusions reached, is an immaterial inquiry.

The judgment is affirmed, with costs to respondent.

McCarty, C. J., and Straup, J., concur.

The Law Requires Railroad Companies to Give Notice and Warning of trains approaching a crossing. What such notice and warning shall be will depend to some extent upon the circumstances of each case, but some suitable means must be adopted and applied which will apprise travelers of the danger of the situation: See Bickel v. Pennsylvania R. R. Co., 217 Pa. 456, 118 Am. St. Rep. 926; Queen Anne's R. R. Co. v. Reed, 5 Penne. (Del.) 226, 119 Am. St. Rep. 301; Weaver v. Southern Ry. Co., 76 S. C. 49, 121 Am. St. Rep. 934. It would seem that one approaching a railroad crossing has a right to assume that the railroad company will give reasonable, necessary and statutory signals of coming trains: See Mitchell v. Illinois Cent. R. R. Co., 110 La. 630, 98 Am. St. Rep. 472, and cases cited in the cross-reference note thereto. It has been held, however, that the negligence of a railway corporation in failing to whistle or ring the bell as a train approaches a crossing is excused by negligence on the part of a person about to cross in not using his senses to discover the danger: Carlson v. Chicago etc. Ry. Co., 96 Minn. 504, 113 Am. St. Rep. 655, and see cases cited in the cross-reference note thereto.

Persons Crossing a Railroad Track are Presumed, as a general rule, to exercise care in looking and listening for approaching trains: Queen Anne's R. R. Co. v. Reed, 5 Penne. (Del.) 226, 119 Am. St. Rep. 301; Bickel v. Pennsylvania R. R. Co., 217 Pa. 456, 118 Am. St. Rep. 926. See the note on presumptions of care to Chicago etc. Ry. Co. v. Wilson, 116 Am. St. Rep. 108; and the note on presumptions of negligence from the happening of an accident to Cincinnati Traction Co. v. Holzenkamp, 113 Am. St. Rep. 986.

CASES

IN THE

SUPREME COURT

OF

WASHINGTON.

CITY OF SEATTLE v. PUGET SOUND IMPROVEMENT COMPANY.

[47 Wash. 22, 91 Pac. 255.]

MUNICIPAL CORPORATIONS-Remedy Over Against Property Owner for Negligence. If a trapdoor is negligently maintained in a sidewalk by a lot owner in a city for his sole use and benefit, and a person passing along the sidewalk is injured thereby, the city and the lot owner are not joint tort-feasors as between each other, and if damages are recovered against the city for such injury, it has its remedy over against the lot owner, with notice to defend the original suit to recover the amount paid. (p. 887.)

NEGLIGENCE-Dangerous Premises-Unsafe Trapdoors.-The owner of a building in a city is liable for negligence in maintaining unsafe trapdoors over an areaway, placed in the sidewalk exclusively for his benefit, if the building is in his control, although parts of it are leased to third persons. (p. 888.)

Bausman & Kelleher, Peters & Powell and R. P. Oldham, for the appellant.

S. Calhoun and E. E. Todd, for the respondent.

23 MOUNT, J. This action was brought by the respondent to recover over from the appellant the amount of a judgment for personal injuries, recovered by C. S. Smith against the city, and paid by the city. The case was tried to the court without a jury, and a judgment was rendered against the appellant. The appellant alleges that the court erred in overruling a demurrer to the complaint and in making certain findings of fact. The material allegations of the complaint are as follows:

"That Second avenue is now, and was at all times herein mentioned, a public street in said city of Seattle, being one of the principal streets in said city and a common thoroughfare, and as such was much used by the public; that at all times

herein mentioned said defendant was the owner of lots 1 and 4, in block 6, of the plat of the town, now city, of Seattle, as laid off by C. D. Boren and A. A. Denny, in the county of King, state of Washington; that at all times herein mentioned there was situated on said lot a four-story brick building, known as the 'Boston Block,' and under the sidewalk on Second avenue, in front of said lots, particularly in front of that store building in said block known as No. 722, Second avenue, in said city, said defendant maintained an areaway, and at or near said store building in said sidewalk maintained a trapdoor down into said areaway and cellar, beneath said sidewalk; that on the night of the 19th of October, 1901, and for many months prior thereto, the defendant had negligently and carelessly maintained said trapdoor in said sidewalk, as aforesaid; that said trapdoor, which was made of iron, was unlawfully and dangerously raised above the surface of the adjoining sidewalk from a height of from two to three inches; that said opening in the sidewalk was covered, as aforesaid, by iron trapdoors, which met over the middle of said opening; that at said point of meeting, one of said iron doors projects above the other, and said iron doors had become on the surface worn smooth, and at all times were slippery and dangerous to life and to travelers using the same in walking over said sidewalk 24 in the ordinary and usual manner; that said defendant carelessly and negligently failed to place any danger signals as a warning around or about said defective place in said street and sidewalk and said obstruction therein contained; that on the night of said 19th of October, 1901, one Christina D. Smith, while lawfully traveling along said Second avenue at or near No. 722 Second avenue, stumbled on said iron doors, and the same then and there being slippery, stumbled, slipped and fell, and was thereby thrown on said iron doors on said sidewalk and ground, and therefrom she sustained great and severe injuries."

Then follows allegations of the extent of the injuries to Mrs. Smith, and that she duly presented her claim to the city for damages.

"That thereafter, to wit, on or about the 11th day of February, 1902, said Christina D. Smith and Lee Smith, her husband, instituted an action in the superior court of King county, Washington, to recover damages against the city of Seattle on account of said injuries so received as aforesaid, which cause is numbered 34982 in the files of said court; that said city of Seattle duly defended against said action and issues were joined therein, and a trial was had upon said is

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