delivered the opinion of the Court:
Several objections are made on this record, but we shall address ourselves to those bearing upon the instructions. Preliminary to this, an objection raised on the rejection of the testimony of Woolley, a witness called for appellants, will be disposed of. Woolley, the rejected witness, was an employee of appellants in. a capacity connecting him with the making up of trains for the road, and when offered as a witness, was rejected, on the ground of interest, being liable over to appellants.
The rule of the common law in relation to the interest of a witness is familiar to all, and operated in full force in this State until the enactment of the law of 1867. However much the existence of the rule was regretted by the most learned and distinguished courts of this country and of England, it was inexorably enforced, and witnesses of the highest character in the community were excluded from the stand, if it appeared they had an interest in the event of the suit. To make such competent, resort was had to a written release executed with all the forms of law. Our legislature, in a spirit of enlightened policy, abolished this rule, by declaring that no person should be disqualified as a witness in any civil action, suit or proceeding, or by reason of his or her interest in the event thereof, as a party or otherwise, or by reason of his or her conviction of any crime. Sess. laws, p. 183.
By the common law, and under the authority of the case of the Galena, & Chicago Union Railroad Co. v. Welch, 24 Ill. 33, this witness was incompetent, but this act of 1867 removed his disability, and he should not have been rejected, or the appellants compelled to execute to him a release of whatever claim they may have had on him for prospective damages, and did the cause rest upon this point, we should be inclined to hold the error sufficient to reverse the judgment. But the appellants were not deprived of the testimony of this witness. He was sworn and examined, and testified fully in the cause.
How, as to the instructions. Those given for appellee are for the most part confined to the conduct of the deceased whilst engaged in unloading the coal cars, without any reference to the question of going upon that car at the time and under the circumstances he did enter upon it. The central question is, did the deceased use proper care and caution in entering upon this car under the circumstances then existing \ This is an important question in the case, and to .which the attention of the jury was not called. However discreet and careful the conduct of deceased may have been when on the car, the question remains, was he justified in being there at that time, and under the circumstances ?
On another trial, the attention of the jury will be called to this central fact.
Exception is taken to the tenth instruction given for appellee. It is as follows :
“ The jury are instructed that in estimating the pecuniary injury, if they believe from the evidence that the widow and minor children of said Christopher Weldon, deceased, have sustained any injury for which the defendant is liable, they have a right to take into consideration the support of the said widow and minor children of the deceased, and the instruction, and physical, moral and intellectual training, of the minor children of the deceased, and also the ages of the said minor children, and the pecuniary condition of the said minor children and widow of the deceased, in determining the amount of damages in this case, if they believe from the evidence that said Weldon left a widow and minor children.”
To the principle contained in this instruction, we perceive no objection. The matter of it has been elaborately discussed in the/courts of several of the States, but in none, perhaps, with more ability than in the court of appeals of the State of Hew York, in the case of Tilly, Admr. v. The Hudson River R. R. Co. 29 N. Y. 252. That case was more than once before the court of appeals, and it was held that the nurture, and instruction, moral, physical and intellectual training, by the deceased, of her children, were proper elements to enter into the consideration of pecuniary loss suffered by the children. In that case there was evidence on which to base that instruction; in this case there is no such evidence, and therefore it should not have been given. In the absence of such evidence, it was a misdirection of the court. There was no proof tending to show that the deceased was fitted by nature or education, or by disposition, to furnish to his children instruction, or moral, physical or intellectual training. On another trial this may be shown.
A point is made upon the amount of damages allowed. It will be perceived the jury have gone to the extent of the law, and, without any proof other than the fact of death, have said the pecuniary loss thereby to his widow and next of lcin is five thousand dollars, and no less.
By section two of the act under which this action is brought, a jury is permitted to give such damages as they, shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from the death, to the widow and next of kin of the deceased, pot exceeding five thousand dollars. The only injury for which a jury can estimate, is a pecuniary injury, that is, what have the widow and next of kin lost, in a money view, by the death ? Nothing is to be allowed by way of solace. In Conant v. Griffin, Admr. 48 Ill. 410, which was a case under this statute, it was distinctly announced, as it had previously been, in other like cases, that the damages could only be for the pecuniary loss, not for the bereavement. City of Chicago v. Major, 18 ib. 349; Chicago and Rock Island Railroad Co. v. Morris, 26 ib. 400. The amount awarded by the jury, placed at interest, would yield five hundred dollars per annum. There was no proof that deceased earned, annually, one-half of that amount by his labor, or that his prospects were such, and such his business capacity, as to justify a reasonable expectation that he would, in the future, earn one-half the interest on that sum. He was a common laboring man, but at what wages there was no proof. This court said, in the case of the Chicago and Alton Railroad Co. v. Shannon, Admr. 43 Ill. 338, if the deceased was poor, the loss may consist in the fact that his personal exertions can no longer support those dependent upon him, but the subject itself does not lie within the limits of exact' proof. While this is so, yet 'surely some evidence should be given of the profits of the labor of the deceased, and what he might, in all probability, earn for the future support of his wife and children. In this consists essentially the loss to the family. If some rule is not prescribed by which juries must be governed in such cases, the result will be in all cases a verdict to the extent of the law. The jury have no right to find arbitrarily, that the death of any husband and father results in a pecuniary loss to his widow and next of kin of five thousand dollars. A verdict rendered without evidence on a material point, and for the largest amount provided by law, bears very much the appearance of being the result of prejudice and passion.
For the reasons given, the judgment is reversed and the ■ cause remanded.
Judgment reversed.