class of actions, the burden is on the plaintiff in the first instance to show that the act which caused the death was wrongful.40 In some jurisdictions the plaintiff has the burden of producing evidence from which the inference of freedom from contributory negligence can be drawn." Elsewhere contributory negligence is held to be a matter of defense to be proved affirmatively by the defendant.42 SECTION 7144. General rules. ARTICLE IV. INSTRUCTIONS. 7145. Instruction where portion of plaintiffs suffered no pecu- SECTION 7147. Instruction on question of reasonable expectation of pecuniary benefit. 7148. Misleading instructions. 7146. Instruction for death of wife. 7149. Assumption of facts. §7144. General Rules. It is the duty of the court adequately to instruct the jury as to the basis upon which the damages are to be computed and the pecuniary value of the life of the deceased to the beneficiaries ascertained, and this duty is not performed by merely stating that the jury may assess the damages at whatever sum in their opinion the plaintiff is entitled to, not exceeding the statutory amount.1 Where the recovery is measured by the pecuniary value of the life of the deceased, the court must limit this value to the persons entitled to the recovery; and an instruction that the measure of damages was the "money value of the decedent's life," without saying that it was the money value "to the plaintiffs," was plainly erroneous. Where the heirs of the deceased under the California statute were the father and mother of the deceased, an instruction that "the pecuniary loss App. 83; Illinois &c. R. Co. v. Ashline, 171 Ill. 313; s. c. 9 Am. & Eng. R. Cas. (N. S.) 702; 49 N. E. Rep. 521; aff'g s. c. 70 Ill. App. 613; Toledo &c. R. Co. v. Bailey, 145 Ill. 159; s. c. 33 N. E. Rep. 1089; aff'g s. c. 43 Ill. App. 292; Missouri &c. R. Co. v. Moffatt, 60 Kan. 113; s. c. 55 Pac. Rep. 837; Davis v. Concord &c. R., Co., 68 N. H. 247; s. c. 44 Atl. Rep. 388. But see Chase v. Maine R. Co., 77 Me. 62; s. c. 52 Am. Rep. 744. On the other hand, evidence of habitual intoxication may be shown as creating a presumption of intoxication at the time of the accident: Lane v. Missouri &c. R. Co., 132 Mo. 4; 8. c. 33 S. W. Rep. 645, 1128. "St. Louis &c. R. Co. v. Townsend, 69 Ark. 380; s. c. 63 S. W. Rep. 994; Rutherford v. Foster, 125 Fed. Rep. 187; s. c. 60 C. C. A. 129; State v. Philadelphia &c. R. Co., 60 Md. 555; Lee v. Reliance Mills Co., 21 R. I. 549; s. c. 45 Atl. Rep. 554; International &c. R. Co. v. Knight (Tex. Civ. App.), 52 S. W. Rep. 640. 41 Vol. I, §§ 365, 370; McDonough v. Grand Trunk R. Co., 98 Me. 304; s. c. 56 Atl. Rep. 913; Kane v. Whitaker, 33 App. Div. (N. Y.) 416; s. c. 54 N. Y. Supp. 85. 42 Vol. I, § 366; Schneider v. Market St. R. Co., 134 Cal. 482; s. c. 66 Pac. Rep. 734. 1 Malott v. Shimer, 153 Ind. 35; s. c. 54 N. E. Rep. 101 (more explicit instructions should have been requested); Hunt v. Kile, 98 Fed. Rep. 49; s. c. 38 C. C. A. 641. 2 Houston &c. R. Co. v. Johnson, 27 Tex. Civ. App. 420; s. c. 66 S. W. Rep. 72. in such case" was "the value in money if any, of the life of the deceased to her father and mother," was held not open to the objection that it allowed the father and mother more than the actual pecuniary loss sustained.3 § 7145. Instruction where Portion of Plaintiffs Suffered No Pe cuniary Injury.-An instruction that the jury is to estimate the reasonable probabilities of the deceased's life, if they find for the plaintiffs, and give such pecuniary damages, not only for past losses, if any, but for such prospective damages as the plaintiffs may have suffered or will suffer as the direct consequences of the death, and that the jury shall apportion the damages among the plaintiffs, was proper, when taken in connection with a further instruction that no recovery could be had in favor of one of the plaintiffs, as to whom no pecuniary injury had been proved.* § 7146. Instruction for Death of Wife.-An instruction as to dam-ages for loss of a wife is adequate where it states that the jury can only give the plaintiff the money value of her life to him; that it is somewhat difficult to determine that; that they have, however, the circumstances in life of the parties, the age of the wife, and the husband before them; and that it is not a question of sentiment, but of pecuniary compensation." § 7147. Instruction on Question of Reasonable Expectation of Pe-cuniary Benefit.-Where parents sue for the wrongful death of an adult son, an instruction that proof that the deceased was contributing to the support of his parents entitled them to damages is to be condemned, as it does not require the jury to consider the probable willingness and ability of the deceased to continue such contributions in the future. It is proper to instruct the jury that the plaintiffs should 3 Hillebrand v. Standard Biscuit Co., 139 Cal. 233; s. c. 73 Pac. Rep. 163. Western Maryland R. Co. v. State, 95 Md. 637; s. c. 53 Atl. Rep. 969. "Waechter v. Second Ave. Traction Co., 198 Pa. St. 129; s. c. 47 Atl. Rep. 967. Galveston &c. R. Co. v. Power (Tex. Civ. App.), 54 S. W. Rep. 629 (no off. rep.). While an instruction on the measure of damages, in an action by a father for the negligent death of his child, to the effect that the jury should take into consideration the probability of the child's living to attain its majority, and the probable aid, assistance, society, and comfort it would have been able to give the father in the future, is open to criticism as assuming that the child would have done all it could, had it lived; yet where the court restricted the recovery to a "just compensation" for the injury sustained, and pecuniary compensation to the father for the loss he "may" have sustained, any error was harmless: Corbett v. Oregon Short Line R. Co., 35 Utah 449;. s. c. 71 Pac. Rep. 1065. recover such sum of money as the jury find from the evidence will be a fair compensation to them for the pecuniary loss sustained by them in the decedent's death; and the objection that they are not entitled to recover a fair compensation, because what might be a fair compensation might not be what they had a reasonable expectation of receiving, is untenable." §7148. Misleading Instructions.—It is obviously the duty of the court to state the law clearly and avoid misleading the jury by vague instructions. Thus, an instruction that recovery could be had of a railroad company for the death of one injured by its negligence who committed suicide during insanity caused by the accident, if he had not the power of rational volition, was held misleading; the term "rational volition" being likely to be understood to mean volition attended by powers of reason to consider and judge of the act in all its relations, moral as well as physical." § 7149. Assumption of Facts.-There is an example of a violation of the rule against the assumption of disputed facts where, in an action for damages to next of kin caused by the death of the deceased in a railroad accident, an instruction told the jury that they might assess damages at such sum as they believed from the evidence to be just compensation for the damage to the means of support sustained by the next of kin, as the instruction assumed that the deceased was the means of support to his next of kin.o 'Galveston &c. R. Co. v. Johnson, 183 Mass. 393; s. c. 67 N. E. Rep. 424. Illinois Cent. R. Co. v. Bartle, 94 24 Tex. Civ. App. 180; s. c. 58 S. |