Page:Federal Reporter, 1st Series, Volume 5.djvu/536

524 5. COMMON CARRIER.

A common carrier of passengers for hire is bound to provide for their safety, so far as is practicable, by the exercise of human care and foresight; and, where one is drowned under the circumstances aforesaid, drunkenness, if it existed, was not contributory negligence.

6. DAMAGES.

The damages recoverable under section 367 of the Oregon Civil Code, by an administrator for the death of his intestate, are general assets of the estate, and are given merely as a pecuniary compensation for the death, and not as a solatium; nor are they to be exemplary or vindictive, but according to the value of the life, having due regard to the capacity and disposition of the deceased to be useful to labor and to save. ་་

In Admiralty.

Sidney. Dell, for libellant.

Cyrus A. Dolph and Joseph N: Dolph, for defendant.

DEADY, D. J. This suit is brought to recover the sum of $4,900, under section 367 of the Oregon Civil Code, on ac- count of the death of William A. Perkins, the libellant's intes- tate; alleged to have been caused by the negligence of the defendant, on November 16, 1878, while transporting said Per- kins across the Wallamet river at Portland, on its steam-ferry No. 1. The answer of the defendant, in addition to the alle- gations directly responsive to the libel and contesting the cause of suit therein stated, contains defensive allegations in bar of the same, the equivalent of the pleas of ne unques admin- istrator and a prior adjudication at law. These pleas are but different forms of the same defence, and the facts upon which they rest are as follows: In June, 1877, William A. Perkins, then in his twenty-second year, came to Jackson county, Oregon, via California, from his native state, Vermont, with his mother and step-father, Michael Riggs, where he remained until September 10, 1878, when the mother, on account of alleged cruel treatment, left Riggs, taking with her her three minor children and the effects which belonged to her, and started for California, where she had a brother living, with the ultimate purpose of going back to Vermont to reside, where she had a son still older than the deceased. The de- ceased accompanied her, first disposing of a pre-emption