HOLMES v. OREGON & CALIFORNIA RY. CO. 543 'first to the creditors, and second to the next of kin, or person's among whom the law provides the present estate shall be dis- tributed. If would, indeed, be a new way of paying old debts, if the tears and anguish of the survivors could be thus con verted into assets for the payment of the creditors of the deceased i B In this case it is admitted that there are no creditors, and the deceased being a single man, without a father, his next of kin, or the distributees of his estate, under the statute of the state, are his mother, brother and sisters, in equal parts. Oregon Laws, 547, 548, § 3, sübs. 8. Under similar statutes of other states it has been gener ally held that the rule upon which damages should be as- sessed in this class' of cases is as for a pecuniary injury, and not a solatium, or solace for wounded feelings or mental suf- fering. 2 Thomp. Neg. 1289, § 90. } تو۔ The nearness of the relation between the deceased and those for whose benefit the damages are claimed, and the nat ture and strength of the obligation of the former to care for the latter, are considered in estimating the damages, and the more distant the relation or the weaker the obligation the less they should be. The age, health, habits of industry and so- briety, and mental and physical skill of the deceased, so far as they affect his capacity for rendering useful service to oth ers, or acquiring property, must also be considered. Under the statute the life of the deceased is valued according to his capacity and disposition to be useful-to labor and to save. The industrious, provident, and skilled are worth more to society than the indolent, improvident, and ignorant, and their death is to be compensated for accordingly. This is the law; and, as will be seen, it makes no account of sentiment or feeling; and yet, while it is administered by fallible human beings, whether on the bench or in the jury-box, the chances are that a feeling of pity for the bereaved or indignation for the wrong will creep into the estimate and swell the damages beyond the strict legal limit. Neither are the damages to be vindictive or exemplary, by way of punishment. The law
