4. The liability of a common carrier results from his duty to carry all freight and passengers which offer within the range of his usual business, and he is liable in tort both in form and in substance as for a breach of duty, aside from and independent of all express or implied contract.

5. The mere purchase of a ticket for a railway journey does not amount to a contract on the part of the company, or impose upon the company a duty to have a train ready to start at the time the passenger is led to expect one.7

6. And a railway company have the right to prescribe reasonable conditions for the admission of any passengers on their freight trains; and the payment of fare to its office agents, or procuring a ticket before taking passage on such trains, is not an unreasonable condition. An offer to pay fare to an employee on the train, not authorized to receive it, is not an offer to the company, and in such cases does not entitle the party to a place on such train as a passenger.8 And when a person has purchased a ticket and taken his passage on a train, and given up his ticket to the conductor, he cannot at an intermediate station, by virtue of his subsisting contract, leave such train, while in the reasonable performance of the contract, and claim a seat upon another train.8

• Tattan v. Great Western Railw. Co., 2 El. & El. 844. But a master cannot recover of the company for the loss of service of his servant when the servant purchased the ticket. Alton v. Mid. Railw. Co., 19 C. B. N. S. 213; s. c. 11 Jur. N. S. 672.

7 Hurst v. Great Western Railw. Co., 11 Jur. N. S. 730. This was where the trains did not connect by reason of the train on the first portion of the line being delayed, and the passenger thereby being put to expense in staying over night, and it was held there was no absolute contract to make the connection, and the passenger must run the risk of reasonable contingencies. The timebills here were not put in the case, and the court held that the ticket alone only bound the company to carry the passenger through in a reasonable time. The time-bills will bind the company to their fulfilment. Ante, § 181, n. 2.

But where the company state in their bills that all reasonable effort will be made to have trains arrive as advertised, but punctuality will not be guaranteed, and the jury find the company guilty of no negligence, the passenger cannot recover for any failure to arrive in the time named in the bills and time-table. Prevost v. Great Eastern Railw. Co., 13 L. T. N. S. 20, before Crompton, J. at Nisi Prius.

8 The C. C. & C. Co. Railw. v. Bartram, 11 Ohio St. 457.

SECTION VIII.

Rule of Damages for Injuries to Passengers.

1. All damage, present and prospective, is 10. In actions for loss of service, cannot in

recoverable.

clude mental anguish.

2. But these should be obvious, and not merely 11. Woman claiming damages for personal

§ 183. 1. The question of damages is one resting a good deal in the discretion of a jury, and must of necessity be more or less uncertain. But certain general rules have been established upon the subject. It is decided that the party must recover all his damages, present and prospective, in one action.1

2. But in another case, it was said by the court, "It was certainly proper for the jury, in estimating the damages to the plaintiff, to regard the effect of the injury in future, upon her health, the use of her limbs, her ability to labor and attend to her affairs, and generally to pursue the course of life she might otherwise have done," and its effect in producing bodily pain and suffering, but all these should be "the legal, direct, and necessary results of the injury, and that those, which at the time of the trial were prospective, should not be conjectural.”

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1 Hodsoll v. Stallebrass, 11 Ad. & Ellis, 301; Whitney v. Clarendon, 18 Vt. R. 252; Curtis v. Roch. & Sy. Railw., 20 Barb. 282; Black v. Carrollton Railw., 10 Louis. Ann. 33.

2 Curtis v. Roch. & Sy. Railw., 20 Barb. 282. See also Morse v. Auburn & Sy. Railw., 10 Barb. 621.

In the case of Hopkins v. Atlantic & St. Lawrence Railw., 36 N. H. 9, it was held, that in an action by the husband for an injury to the wife, through the negligence of the company, the plaintiff may give evidence of expense of cure and loss of services, after the commencement of the action, as

3. Courts will sometimes grant new trials for excessive damages in such cases, as where the statute limited the amount of recovery in case of death to $5,000, and the jury assessed damages in a case of injury, not resulting in death, at $11,000, the court ordered a new trial, unless the excess above $5,000 should be remitted in twenty days.3

4. The rule laid down by Kent, Ch. J., as justifying a new trial for excessive damages is, that they should be so excessive "as to strike all mankind, at first blush, as beyond all measure unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, corruption, or prejudice." This is no doubt a safe rule, and perhaps the only safe one in such cases, but there are probably many cases where new trials have been granted for this cause, falling far short of this in excessiveness.

4

5. In some of the American states, in trials at Nisi Prius, in conformity with a single English case, the plaintiff has been allowed to add to his actual damages of loss of time, expense of cure, pain, and suffering, and prospective disability, if any, counsel fees not recoverable by way of taxable costs.5. But this does not seem to be countenanced by the English courts in the later decisions.6

well as before; and the jury may give prospective damages also. The jury may also give exemplary damages, in their discretion, where the injury was caused by the gross negligence of the company in the management of their trains.

3 Collins v. Alb. & Schen. Railw., 12 Barb. 492. So where six thousand dollars was awarded for a broken leg, of which the party recovered in about eight months, a new trial was granted. Clapp v. Hudson River Railw., 19 Barb. 461. But where the plaintiff had been disabled for two years, and the injury seemed likely to be permanent, $ 4,500 was held not exorbitant. Curtis v. Roch. & Syr. Railw., supra.

And where the plaintiff was wrongfully expelled from the cars, between regular stations, and the jury gave $ 1,000 damages, a new trial was granted on the ground,they were excessive, no special damage being shown. Chicago, Burlington, & Quincy Railw. v. Parks, 18 Ill. R. 460.

✦ Coleman v. Southwick, 9 Johns. 45. See also Southwick v. Stevens, 10 Johns. 443.

5 Shaw, Ch. J., in Barnard v. Poor, 21 Pick. 381. But this rule is here condemned, and also in Lincoln v. Saratoga & Sch. Railw., 23 Wend. 435.

• Grace v. Morgan, 2 Bing. N. C. 534; Jenkins v. Biddulph, 4 Bing. 160; Sinclear v. Eldred, 4 Taunt. 7. The only English case where this claim is coun

6. In a recent English case, a distinguished judge, Ch. B. Pollock, says: "A jury most certainly have a right to give compensation for bodily suffering unintentionally inflicted. But when I was at the bar I never made a claim in respect of it, for I look on it not so much as a means of compensating the injured person, as of * damaging the opposite party. In my personal judgment it is an unmanly thing to make such a claim. Such injuries are part of the ills of life, of which every man ought to take his share.7

7. The principle of this remark seems to be conceived in a more philosophic and Christian temper than would be altogether consistent with bringing any action all. But it is sometimes. refreshing to find minds soaring above the dead level of pecuniary equivalents to which the profession are, for the most part doomed, in connection with estimating the damages to be awarded for personal injuries. But it has always been held in this country, that the bodily pain and suffering caused by an injury for which one party is legally entitled to claim compensation of the other, were legitimate elements to be proved and considered by the jury in estimating the pecuniary compensation which they shall award, notwithstanding the difficulty of reducing pain and pence to a common measure.

8

8. It has been held the plaintiff might give evidence of the nature of his business and the value of his services in conducting it, as a ground of estimating damages by an injury through the negligence of the company, but not the opinion of witnesses as to the amount of his loss.9

9. In actions against carriers of passengers for injuries, there seem, as we have said, to be no well-defined rules for estimating damages. It is a matter to be submitted to the sound discretion

tenanced, is Sandback v. Thomas, 1 Stark. 306. See Webber v. Nicholas, 1 Ryan & M. 419.

But

Theobald v. Railway Passengers' As. Co., 26 Eng. L. & Eq. 438. see Curtiss v. Roch. and Sy. R., 20 Barb. 282, where the rule of the American law upon the subject is fully stated, as cited in the text (2). Damages arising from this source need not be specially stated in the declaration, unless of an unusual and unexpected character. Id. Ante, § 158, n. 14, § 161, n. 2.

8 Ransom v. New York & Erie Railw., 15 New York Court of Appeals, 415 • Lincoln v. Saratoga and Sch. Railw., 23 Wend. 425.

and judgment of the jury who are to consider the actual loss to the plaintiff, present and prospective, which is the very lowest amount they will feel justified in giving in any case. Beyond this any rule for damages must be regarded as more or less terra incognita. There is no doubt juries often give damages altogether beyond any actual damage which it is supposed the party has sustained in a pecuniary point of view. And it is not uncommon, in charging juries upon this subject, to bring their attention, in considering the question of damages, to the degree and character of the misconduct of the defendants or their agents, and even to the public example of the trial and verdict. This has been sometimes seriously criticised by elementary writers, and sometimes, as we have seen, by judges, but we find no cases where new trials have been granted on account of such suggestions having been given in charge to the jury. And when it is considered that verdicts in civil actions are the only effectual corrective of a most flagrant disregard of human life, which often occurs in the transportation of passengers, we are not prepared to say that the jury are bound altogether to shut their eyes to the public example of their verdicts.10

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10. In an action 11 by the father for loss of service from an injury to his infant son fourteen years of age, it was held that no damages could be given for the shock to the father's feelings, that being a proper consideration only in an action in the name of the son for the direct injury.11

10 Farish v. Reigle, 11 Grattan, 697.

11 Black v. Carrollton Railw., 10 Louis. Ann. 33. And in the case of Coakley v. The North Pennsylvania Railw. 10 Am. Railw. Times, No. 12, 6 Am. Law Reg. 355, tried in the city of Philadelphia, for the death of a child fourteen years of age, by a collision of trains upon defendants' road, the court adopted a similar view in regard to the rule of damages. They said it was not a case for exemplary damages; the jury were to take into consideration the pecuniary services of the child until of age, and the expense incurred by the plaintiff after the accident, and the value of the society of the child, which might be regarded as the strongest claim. But they were not to consider the anguish of the parents, nor were they to inquire what a man would take for a child, for this would be speculative damages, and in this view, the value of human life is beyond all price.

The rule thus laid down is perhaps about as accurate as any one could give. But it is evident it will not bear strict analysis. For how can one estimate the