
    Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Drumm, Administrator.
    [No. 4,686.
    Filed March 10, 1904.]
    Death by Wrongful Act. — Action for Benefit of Next of Kin.-^Presumption as to Pecuniary Loss. — "Where an action for death hy wrongful act is brought for the benefit of the brothers and sisters and nephews and nieces of the decedent, the presumption that a pecuniary loss in some amount has been sustained does not obtain as in actions for the death of a husband and father brought for the benefit of the wife and children, pp. 548, 549.
    
    
      Damages. — Instruction.—Death hy Wrongful Act. — An instruction in an action for death by wrongful act that “the jury may estimate such pecuniary damages from the facts proved, in connection with their own knowledge and experience which they are supposed to possess in common with the generality of mankind, ’ ’ is erroneous as informing the jury, in effect, that, in estimating the pecuniary damages, they may consider something in addition to the facts proved, pp. 548, 549.
    
    
      Same. — Instruction.—Death hy Wrongful Act. — An instruction in- an action for death by wrongful act, brought for the benefit of the brothers and sisters and nephews and nieces of decedent, that the jury in estimating the pecuniary loss might take into consideration the probable or even possible benefits which might result to the next of kin from the life of decedent is erroneous. - pp. 549, 550.
    
    From Delaware Circuit Court; J. G. Leffler, Judge.
    Action by Enoch Drumm, administrator- of the estate of Rachel Driscoll, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, From a judgment for plaintiff, defendant appeals.
    
      Reversed.
    
    
      W. A. Thompson, W. H. Thompson and J. W. Ryan, for appellant.
    
      G. H. Koons, for appellee.
   Robinson, J.

Appellee’s decedent and her husband were killed in the same accident at a highway crossing. Appellee brings the statutory action, the damages to be recovered to inure to the benefit of the next of kin. Decedent left, as lior next of kin, brothers and sisters and a niece and nephews. The brothers and sisters, the youngest of whom is fifty-five years old, are married, settled in life, have homes of their own, and are the heads of families. The niece and nephews, children of a deceased sister of the decedent, lived with their father as a family, and had so lived since their another’s death. None of these next of kin depended upon decedent for pecuniary support or assistance.

The court gave, among other instructions, the following: “(11) The court instructs the jury that it is not necessary, in order to recover in this case, that the next of kin of the decedent, Rachel Driscoll, should have a legal claim on her, the said decedent, but that the administrator is entitled to recover.for them for the pecaaniary loss to them, if any. The jui’y may estimate such pecaaniary damages from the facts proved, in connectioaa with their owai knowledge and experience, which they are supposed to possess in common with the generality of aaaankind, but in no case could such damage exceeded $10,000. (12) The court instructs the jury that no precise arnle for estianatiaag the loss recoverable under this statute can be laid dowaa. When the rclatioaa of the party whose death has beeaa caused to those for whose benefit the suit is being prosecaated has been showaa, and her obligation, if any, disposition, and ability to earn wages, or conduct busiaaess, and to care foa’, support, couaasel, advise, and protect her aiext of kiaa, aaaaaaod in the complaiaat, the aaaatter then is subaaaitted to the judganent and seaase of justice of the jaary. In ostianating the pecuniary value of Rachel Driscoll to her next of kin, the jury may take into consideration the probable or eveaa possible benefits which might result to them from her life, modified, as in their estianation they should be, by all the chaaaces of failaare or anasfortuaae.”

It is not elaianed that the decedent was under any legal obligation to support the next of kiaa for whose benefit this actioaa was brought. The presumption that the wife and children sustain a pecuniary loss in some amount by the death of the husband and father doe's not obtain in a„ case like that at bar. Eor determining the pecuniary loss in such cases as this, any general rule is not possible, but such loss must of necessity depend upon the particular facts and circumstances of each case. Erom these particular facts and circumstances, as disclosed by the evidence, the jury must determine the amount of recovery. And such facts and circumstances so proved will necessarily be given such value and weight as the knowledge and experience of the individual jurors determine they should have. The first of the above instructions tells the jury, in effect, that, in estimating the pecuniary damages, they may consider something in addition to the facts proved. The pecuniary injury resulting from the death to the next of kin is uncertain and indefinite, but it must be determined wholly from the facts and circumstances proved. The assessment of damages in such case “must proceed, not merely upon the pecuniary ability of the deceased, but rather upon the anticipations of pecuniary benefit which the surviving next of kin are shown to have had reasonable ground to indulge.” Diebold v. Sharp, 19 Ind. App. 474; Commercial Club v. Hilliker, 20 Ind. App. 239; Wabash R. Co. v. Cregan, 23 Ind. App. 1; Louisville, etc., R. Co. v. Wright, 134 Ind. 509.

A part of the twelfth instruction is evidently based upon the following language of the court in Louisville, etc., R. Co. v. Buck, 116 Ind. 566, 2 L. R. A. 520, 9 Am. St. 883: “When the relation of the party, whose death has been caused, to those for whose benefit the suit is being prosecuted, has been shown, and his obligation, disposition and ability to earn wages or conduct business, and to care for, support, advise and protect those dependent upon him, the matter is then to be submitted to the judgment and sense of justice of the jury.” Admitting, without deciding, that this language might be held to apply where the next of kin were not dependent upon tlie decedent, yet tlie concluding part of tlie instruction is erroneous in informing tlie jury that, in estimating the pecuniary loss, they might take into consideration the probable or even possible benefits which might result to the next of kin from her life. The possible benefits which might result to the next of kin from the decedent’s life would be áltogetlier speculative. It has been held that a jury is not justified in basing its verdict upon “estimates of probabilities or chances,” but in the instruction in question the jury is told it may consider possibilities. We have carefully considered the evidence 'upon this branch of the case, and from the relations that had existed between these next of kin and decedent for years- prior to her death and at the time of her death, as disclosed by the evidence, we are not prepared to say that a correct conclusion was reached notwithstanding these erroneous instructions. Commercial Club v. Hilliker, supra,

The motion for a new' trial should have been sustained. Judgment reversed.  