injury would have occurred if he had remained quiet,2 or where the conduct of the passenger contributed to produce or enhance the injury.3

*

2. In one case where the passenger was taken upon the train after the passenger cars were filled, and was told that he must ride in the baggage car, and he consented to do so, but soon began boisterous play with others, and obtruded into the passenger cars, and, when they were thrown from the track, leaped upon the ground and was injured, the court said: "The contract was for a passage in the baggage car. The carrier would have no right to overload and crowd passengers already in the other cars. When passengers take their seats they are entitled to occupy as against the carrier and subsequent passengers. While this right is recognized and protected to them, they are required to conduct themselves with propriety, not violating any reasonable regulation of the train." The court also held that the passengers have no right to pass from car to car, unless for some reasonable purpose; and, as the proof showed that the plaintiff below had no such excuse, and, had he remained in the car where he belonged, would not have been injured (that car not having been thrown from the track), or, probably, have felt any impulse to jump from that car, it was his own fault and folly which exposed him to the peril, and the company were not liable for its consequences, and the action could not be maintained.

3. But, where one incurs peril by attempting to escape danger, the author of the first motive is liable for all the necessary or natural consequences.5

4. But where, as in the last case, the person leaped from the cars because the train was passing the station at which he wished to stop, and after the conductor had announced the station, not

2 Jones v. Boyce, 1 Stark. 493; Ingalls v. Bills, 9 Met. 1.

Galena & Ch. Railw. v. Yarwood, 15 Ill. R. 468.

'Railw. Co. v. Aspell, 23 Penn. St. 147, 150. The court here say: "If, therefore, a person should leap from the cars under the influence of a wellgrounded fear that a fatal collision is about to take place, his claim against the company for the injury he may suffer will be as good as if the same mischief had been done by the apprehended collision itself." McKinney v. Neil, 1 McLean, 540, 550.

withstanding the conductor and brakeman assured him the train should be stopped and backed to the station, it was held that the injury he received was the result of his own foolhardiness, and he could not throw it upon the company. The court below had charged the jury, that announcing the station by the conductor, while the cars were in motion, was itself an act of negligence, and the plaintiff had a verdict. But the judgment was reversed in the Court of Errors, who, in giving judgment, said:

5. "If a passenger is negligently carried beyond the station where he intended to stop, and where he had a right to be let off, he can recover compensation for the inconvenience, the loss of time, and the labor of travelling back, because these are direct consequences of the wrong done him. But, if he is foolhardy enough to jump off without waiting for the train to stop, he does it at his own risk, and for this, his own gross imprudence, he can blame nobody but himself."

6. In regard to the conductor announcing the station, the court said, "We consider the charge of the court below entirely wrong. *It is not carelessness in a conductor to notify passengers of their approach to the station at which they mean to get off, so that they may prepare to leave with as little delay as possible when the train stops. And we cannot see why such a notice should put any man of common discretion in peril. It is scarcely possible that the plaintiff could have understood the mere announcement of the station as an order to leap from the cars without waiting for a halt." And where the train passes its usual stopping-place, and a passenger leaps from the carriage while in motion to avoid being carried beyond his destination, and sustains an injury, he cannot recover."

7. And where a person enters the cars for the purpose of seeing another safely seated, and is injured in leaving them, he cannot recover if he was guilty of negligence which contributed to his injury. And where he attempted to leave the cars after they were in motion, and persisted in attempting to get out, it was held sufficient to preclude his recovery for an injury thereby sustained, notwithstanding the conductor gave him no special notice of the time of the departure of the cars, and was guilty

• Damont v. New Orleans & Carrollton Railw., 9 Louis. Ann. 441.

of negligence in starting the cars, and in a jerk occurring soon after, both of which contributed to produce the injury.7

8. The company are bound to stop their trains, at all stations where they profess to leave passengers, a sufficient time to enable passengers to alight. And if they do not, and one is injured in consequence while attempting to leave the cars, the company are liable.8

9. But if the company had prepared a platform for the accommodation of passengers leaving the cars, and a passenger leave the cars on the opposite side and is killed in consequence, the company are not responsible, not having been in fault. And even if both parties had been in fault, there could have been no recovery.9

§ 179. 1. Within the last few years, and chiefly it is presumed on account of the increased peril to life by railway travelling, it has been provided by statute, in England and in most of the American states, that redress shall be given against the party causing a personal injury, from which death ensues. These acts, although intended chiefly to stimulate watchfulness and circumspection in passenger carriers, especially carriers by rail' Lucas v. Taunton & New Bedford Railw., 6 Gray, 64. * Pennsylvania Railw. v. Kilgore, 32 Penn. St. 292. Pennsylvania Railw. v. Zebe, 33 Penn. St. 318.

ways and steamboats, are, as was suitable, made general, and in some of the states the recovery is in the form of a penalty.

2. The English statute, usually denominated Lord Campbell's Act,1 provides that when death shall be caused by wrongful act, neglect or default, such as would (if death had not ensued) have entitled the party to an action, in every such case an action may be maintained by the executor or administrator of the party injured, and the jury may give such damages as shall be proportioned to the injury resulting from the death of the party to his family, to be divided among the parties named in the act, as the jury shall direct. Only one action can be brought, and that is to be commenced within twelve months of the decease of the party injured.

3. It is considered, that if the party's own negligence contributed to the injury, the action will not lie, any more than if the party had survived and brought the action himself.2

4. It has been held that, under the English statute, no damages are recoverable for the mental sufferings of the survivors, who are, by the act, entitled to share the amount recovered, but that the damages must be limited to the injuries of which a pecuniary estimate can be made.3

19 & 10 Victoria, ch. 93.

* Lord Denman, Ch. J., in Tucker v. Chaplin, 2 Car. & K. 730. A railway company is liable for injuries, resulting from the negligence, violence, or carelessness of its conductors in removing from the car a passenger who refused to pay his fare, in consequence of which he died. Penn. Railw. Co. v. Vandiver, 42 Penn. St. 365.

So if the negligence of those who carry the plaintiff contributed to the injury, it is the same thing. Thorogood v. Bryan, 8 C. B. 115.

3

* Blake, Adm'r, v. The Midland Railw., 10 Eng. L. & Eq. 437. Coleridge, J., said: "The important question is, whether the jury, in giving damages apportioned to the injury resulting from the death of the deceased to the parties for whose benefit this action is brought, are confined to injuries of which a pecuniary estimate may be made, or may add a solatium to those parties, in respect of the mental suffering occasioned by such death. . . . Our only safe course is to look at the language the legislature has employed. The title of the act is, for compensating families of persons, &c., not for solacing their wounded feelings."

It was argued that the party, had he recovered, would have been entitled to such solatium.

"But it will be evident this act does not transfer this right of action to his

5. In the American courts, the decisions in the different states will differ, as the statutes are different. The rule laid down in representative, but gives to his representative a totally new right of action, on different principles." By the terms of the act, quoting the second section, "the measure of damages is not the loss or suffering of the deceased, but the injury resulting from his death to his family." "This language seems more appropriate to a loss of which some estimate may be made, than an indefinite sum, independent of all pecuniary estimate, to soothe the feelings, and the division of the amount strongly tends to the same conclusion. It seems to us that if the legislature had intended to go the extreme length, not only of giving compensation for pecuniary loss, but a solatium to all the relations enumerated in the act, language more clear and appropriate for this purpose would have been employed." And because the judge did not limit the damages to the pecuniary loss sustained by the death, a new trial was awarded. Hodges on R. 624.

There seems no doubt, according to the best-considered cases in this country, the mental anguish, which is the natural result of the injury, may be taken into account, in estimating damages to the party injured, in such cases, although not of itself the foundation of an action. Canning v. Williamstown, 1 Cush. 451; Morse v. Aub. & Sy. Railw., 10 Barb. 623.

But it has been held, that in an action under the English statute to recover damages for the death of a person, the damages are not to be estimated according to the value of deceased's life, calculated by annuity tables, but the jury should give what they considered a reasonable compensation. Armsworth v. Southeastern Railw., 11 Jur. 759.

In the last case cited, Parke, Baron, instructed the jury, that they were "to determine, according to the ordinary rules of law, whether, if the deceased had been wounded by the accident, and were still living, he could recover compensation in the way of damages against the company for the wound given, under the circumstances in evidence in the case," and estimate damages "on the same principle as if only a wound had been inflicted."

Another case is very strikingly illustrated, as applicable to the general subject, and the difficulties of laying down any rule in regard to damages in such cases, in an article in the London Jurist, Vol. 18, part 2, p. 1, for the following extract from which we refer to the editor's note to Carey v. Berkshire Railw., 1 Am. Railw. Cas. 447.

The writer in the Jurist says: "On the 15th of December, 1852, the case of Groves v. The London & Brighton Railw. Co. was tried at Guildhall, in the Court of Common Pleas, before Jervis, Ch. J. That was an action brought by the executor of the deceased, for the benefit of four infant children. That the deceased had met with his death through the negligence of the defendants' servants was admitted, the only question being the amount of damages. In summing up, the learned chief justice referred to the case of Blake v. London and Brighton Railw. Co., and told the jury that in assessing the damages they might take into consideration any injury resulting to the children from the loss of the care, protection, and assistance of their father. The jury gave £2,000. Now,