Charles Evans Hughes

“ The trial court charged the jury that it might 'take into consideration the income and earning capacity of the deceased, his business capacity, experience, and habits, his health, physical condition, energy, and perseverance during what would probably have been his lifetime if he had not received the injuries from which death ensued.' The court below granted a rehearing upon the question whether there was error in giving this instruction because of a failure to specify particularly what habits the jury was authorized to consider. ”

“ The court below, while conceding that the term 'beneficiaries,' in the light of its construction of the statute, was 'technically inappropriate,' was of the opinion that the action was tried throughout upon the theory that the damages to be awarded were such as were suffered by the estate, and that, no considering the course of the trial and the instructions given to the jury just prior to, and immediately following, the one in question, it could not be said that the language complained of might have confused or misled the jury. ”

“ It is urged that the instruction as given by the trial court was wrong in itself, in that it directed the jury, in effect, to find for the plaintiff the amount the deceased would have earned during the years of his life expectancy. ”