Pennsylvania Railroad v. Bantom , 54 Pa. 495 ( 1867 )

The opinion of the court was delivered, by

Woodward, C. J.

The defendant’s points on the trial below, and the argument here, may be reduced to this single proposition —that'inasmuch as any plaintiff who sues for an injury resulting in the death of another, is only entitled to recover an indemnity for pecuniary losses, and inasmuch as a widowed mother has no legal right to the services of a minor son, therefore the measure of her damages is only reasonable compensation for nursing and medical attendance of the deceased.

This proposition ignores the Acts of Assembly utterly, and if they are put aside, a shorter method would be that the common law gave no action for the death of another, and therefore the mother could not recover at all. It is not quite logical to concede liability for nursing and medical attendance, as a sequence of an argument that goes to prove the action will not lie.

The answer to the argument is the Act of 26th April 1855, Purd. 754, which declares that the “ persons entitled to recover damages for any injury causing death 'shall be the husband, widow, children or parents of the deceased, and no other relative.”

Now, here is no limitation of damages to nursing and medical attendance. The legislature did not undertake to define the damages, and yet the power of a widowed mother to recover damages for the injury causing the death of her son is expressly given. "What damages ? Such as a court and jury, in view of all circumstances, should consider reasonable. If this was not what the legislature meant, their meaning is past finding out. Both parents are grouped among the persons entitled to recover damages, and by necessary implication the same damages, or damages estimated by a common standard; If the father could recover for loss of the son’s services, which is a conceded point, the legislature have imparted the same capacity to the mother; and she may showr what they were worth to her, as if she had acquired right to them by arrangement and contract, if not by law, and of course how much she was pecuniarily injured by his untimely taking off.

This far the legislature have compelled us to go. We keep step with them^and limit the mother’s right to a case of death and not of maiming, because they have changed the rule of the common law no further than this. Where the injury does not result in death, we decided at the present term, in ’Railway Co. v. Stutler, ante p. 375, that the mother has no right of action for-loss of a son’s services, but where it does result in death we sustain the action by virtue of the Act of Assembly. For the discrepancy of these rules we are not responsible.

Nursing and medical attendance before the death, and funeral expenses afterward, are proper elements of estimate, but the value' of services lost is equally legitimate since the statute. There was therefore no error in negativing the points; and

The judgment is affirmed.