Skonieczny v. Churchman

charging the jury:

Gentlemen of the jury:—This is an action brought by John Skonieczny to recover damages for the death of Czeslawa Nokowski, a fifteen months’ old child, which it is alleged resulted from the negligence of the defendant. The child was killed on the twenty-third day of June, 1904, on Maryland Avenue, a public highway of this City.

Fortunately, there are no contested questions of law in this case. It is mainly, a question of fact, and the facts are within a very narrow limit. It is conceded that the death of the child resulted from being run over by the wagon of the defendant on the day and time alleged, that the wagon was the property of the defendant, Henry L. Churchman, and that it was at that time in *228charge of one of his servants and that it was being driven by the servant, as his servant, in the ordinary course of his business. It is also conceded and admitted on both sides that Maryland Avenue was a public highway, that the child had a lawful right to be on the street or highway and also that the wagon with its driver had a lawful right to be on the street. So that the only question, as conceded by counsel on both sides, is, whether the driver, on that day, by ordinary care, could have prevented the injury? And to that point you are to direct your attention.

In order to recover the plaintiff must satisfy you by the preponderance of the evidence, that this death resulted from the failure of the driver at that time to exercise ordinary care. If in the careful consideration of this testimony you should find that the driver was not exercising ordinary care—which is such as an ordinarily careful and prudent man would exercise under the same circumstances—and that death resulted from that want of ordinary care on his part, then the plaintiff would be entitled to recover. If you find for the plaintiff, it should be for such sum of money as would represent whatever this child would have accummulated at the end of her life and left as her estate to be divided up among the persons who might then be entitled to such estate. In estimating what amount that should be, you should consider her condition of life and probability of life and what sum she probably would have had as a residue at her death to go to her heirs at law. That would be the measure of damages. You will have to get at it the best way you can, taking all the facts and surroundings of the case into consideration.

If there was no negligence on the part of the defendant, your verdict should be for him. In other words, if the driver of the wagon was exercising such care and precaution as an ordinarily prudent man would exercise in passing along the street, under the conditions and surroundings at the time, as disclosed by the evidence, then your verdict should be for the defendant.

You have the facts before you in this case. The law is simple, and it is for you to say whether this defendant .is entitled to recover anything, and if so, what amount. •

Verdict for- defendant.