* Pennsylvania is, that the jury are to estimate damages "by the probable accumulations of a man of such age, habits, health, if the argument ab inconvenienti was permitted to prevail against the allowance of compensation for the mental anguish of the relatives, it ought not, we submit, to be without weight in considering the soundness of this direction. Juries have no small difficulties to contend with in assessing damages, when they have before them evidence of the average profits, or the amount of the life income of the deceased; but these are but trifling to those in which they must become entangled in attempting a pecuniary estimate of the loss of the care, protection, and assistance of a father. In whatever light we look at the subject, either of money or morals, we become perplexed in the attempt to pursue it. It is conceived that in such cases evidence may be given of the character of the deceased, and in many cases this would doubtless be of a most painful nature.

"Moreover, serious practical difficulties would arise. Let us suppose, that, through the negligence of a pointsman, in the belief of his employers a trustworthy servant, an accident happens to a train containing the six following fathers: An archbishop, a lord chancellor, an East Indian director, a lunatic, a wealthy but immoral man, and one virtuous but a bankrupt. It is needless to dilate on the difficulties which juries would experience if called upon to estimate the pecuniary value of the parental care, protection, and assistance of each of these."

In a late English case serious doubts are suggested whether an action will lie, under the English statute, to recover damages in the name of the administrator, for the death of an infant (so young as to be unable to earn anything), by way of compensation for the loss of the services of the child to the family. Bramhall v. Lee, 29 Law Times, 111. In Dalton v. The Southeastern Railw. Co., it was held that the father might have an action, under Lord Campbell's Act, 9 & 10 Vic. c. 93, for an injury resulting in the death of a son, twenty-seven years old and unmarried, who had been accustomed to make occasional presents to his parents, on account of the reasonable expectation of pecuniary profit from the continuance of his life, and of that expectation being disappointed. But it was held not competent for the jury to give, by way of damages, compensation for the expenses incurred by him for his son's funeral, or for family mourning. 4 C. B. (N. S.) 296. Nor can damages be awarded as a solatium, or in respect of the loss of a legal right, but on the ground of a reasonable expectation of pecuniary advantage from the continuance of the life. It is not necessary that actual benefit should have been derived; but reasonable expectation of sensible and

Penn. Railw. Co. v. McClosky, 23 Penn. St. 526, 528. The court say: "The jury must place a money value upon the life of a fellow-being, very much as they would upon his health or reputation." In the trial of such an action, it is proper for the judge, in charging the jury, to allude to the expectation of life at certain ages, as determined by tables, deduced from the bills of mortality. Smith v. N. Y. & Harlem Railw., 6 Duer, 225. The City of Chicago v. Major, 18 Ill. R. 349.

VOL. II.

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*339

and pursuits, as the deceased, during what would probably have been his lifetime."

6. By the statute of Massachusetts,5 passenger carriers, causing the death of any passenger through their own negligence or carelessness, or that of their servants or agents, within the commonwealth, are subjected to a fine, not exceeding five thousand dollars, to be recovered by indictment to the use of the executor or administrator of the deceased person, "for the benefit of his widow and heirs."

7. It was held that the wife cannot sustain an action for the death of her husband, under this act. Nor can the father sustain such action for the loss of service of his child, by death.7 Nor in either of the last two cases will an action lie at common law.6 6 and 7

practical pecuniary benefit is sufficient. Franklin v. same Co., 31 Law Times, 154. But in the case of Oldfield v. New York & Harlem Railw., 3 E. D. Smith, 103, it is said that the New York statute, giving a right of action in this class of cases to the next of kin, does not limit the amount to be recovered to the loss of those only whose relations to the deceased gave them a legal right to some pecuniary benefit, which would result from the continuance of the life. An action will lie in every such case, under the statute, where the deceased, had he survived, could have maintained one. The damages are not restricted to the actual pecuniary loss, but include present and prospective damages, in the discretion of the jury. Accordingly, in the present action, brought for the. benefit of the mother of an infant daughter, seven years of age, killed in the streets of New York by one of defendants' cars being drawn over her, it was held that a verdict for $1,300 did not justify the court in granting a new trial, the amount, although "large, not affording evidence of prejudice, partiality, or corruption." This case is affirmed in the Court of Appeals, 4 Kernan, 310, upon the ground that the question of negligence was properly submitted to the jury, and that no proof of special or pecuniary damage was necessary, in order to maintain the action. In a late case in California, Fairchild v. The Cal. Stage Co. 13 Cal. R. 599, it is held that damages for pain of mind (" mental anguish ") are recoverable.

March 23, 1840. Proceedings under this act are not within the statute of limitations for actions, and suits for penalties. Commonwealth v. Boston & Worcester Railw., 11 Cush. 512.

• Carey v. The Berkshire Railw., 1 Cush. 475. And under the New York statute, giving an action to recover the pecuniary injury to the wife and next of kin, if there be no wife or next of kin, no action will lie. The husband cannot recover damages for the death of the wife. Lucas v. N. Y. Central Railw., 21 Barb. 245; Worley v. Cincin. Ham. & Day. Railw., 1 Handy, 481.

Skinner v. Housatonic Railw., 1 Cush. 475.

8. In an indictment under this statute, it is not necessary to specify the names of the servants, or agents, guilty of the negligence, or the nature or manner of such negligence.8

*9. The want of care in the deceased, which contributed to produce the injury, we have seen, will preclude the recovery of damages, under the statutes, allowing actions to be maintained in those cases where the party does not survive the injury. So, also, in the case of persons incapable of taking care of themselves, if those who have the custody of them improperly expose them, and injury ensues, causing death, the company are not liable, although guilty of negligence. Where a lunatic was travelling in the cars, upon a railway, in charge of his father, who had paid the fare of himself and son through, and taken tickets, but who got out at a station to procure refreshments, leaving the son in the cars, without giving notice to any one of his situation, the train left the station before he returned. The conductor applied to the lunatic for his ticket, not knowing his condition, or that his fare had been paid. The lunatic not surrendering his ticket, the conductor stopped the train and had him put out, where he was killed by another train. It was held, that no action could be maintained against the company, under the statute, the fault being upon the part of those who were responsible for the deceased, and not on that of the company, or its agents.9

• Commonwealth v. Boston & Worcester Railw., 11 Cush. 512. In an action upon the statute of Massachusetts, 1842, c. 89, § 1, which provides that "The action of trespass on the case for damage to the person shall hereafter survive, so that in the event of the death of any person entitled to bring such action, or liable thereto, the same may be prosecuted or defended, by or against his executors or administrators, in the same manner as if he were living," it was held that the right of action depended on the question, whether the testator, or intestate, lived after the act which constitutes the cause of action. Shaw, Ch. J., said: "If the death was instantaneous, and of course simultaneous with the injury, no right of action accrues to the person killed; and of course none to which the statute can apply. But if the party survives, lives after it, the right of action accrues to him as a person in esse, and his subsequent death does not defeat it, but, by operation of the statute, vests it in the personal representative." Hollenbeck, Adm'r., v. Berkshire Railw., 9 Cush. 481. See also Mann v. Boston

& W. Railw., Id. 108.

9

• Willetts v. N. Y. & Erie Railw., 14 Barb. 585. & Erie Railw., 15 Court of Appeals, New York, 455.

(See also Hibbard v. N. Y. But the admissions of a

10. Nor does an action lie, under these statutes, where the death is caused by the negligence of a fellow-servant, unless such servant was habitually careless and unskilful; or if produced in the use of defective machinery, which the deceased knew to be unsafe.10 *Nor where the death is caused by defective machinery, or through defect of fences, if the servant knew of the defect, and made no remonstrance.11

11. And it has even been considered in such case, that the servant, being an engineer, would be liable to any person injured by such defect.11

deceased husband against the interests of the wife, in an action for personal in jury to her, brought, after the death of the husband, in her own name, such admissions being made after the alleged injury occurred, and while the husband, had a suit been instituted, mnst have been joined, are nevertheless inadmissible, on the ground that the husband is not the real but only a nominal or formal party. Shaw v. Boston & Worcester Railw., 8 Gray, 45; ante, § 177, n. 1, 2.

10 Hubgh v. New Orleans & Carrollton Railw., 6 Louis. Ann. 495. See post, § 170, n. 2, 9, 10; Timmons v. Central Ohio Railw., 6 Ohio State, 105.

But if the servant object to the use of machinery, as unsafe, and it is still used, whereby he loses his life, damages may be recovered under the statute. 33 Eng. L. & Eq. 1.

" McMillan v. Saratoga & Wash. Railw., 20 Barb. 449. It is here said the servant may require special indemnity against all risks, or he may give notice to the company, and throw the risk upon them. See Slattery's Adm'r. v. T. & W. Railw., 23 Ind. R. 81, where it is held, that

A brakeman on a train, and one whose duty and business it is to attend a switch, are engaged in the same general undertaking, and the company are not liable to one for an injury caused by the negligence of the other.

The complaint stated in substance that A. was brakeman on a freight-train of defendants', and was killed by the cars being thrown off the track by the breaking of a switch-pin, which the company and their servants, knowing it was insecure, had carelessly left out of repair for twelve days previous. There was no switch-tender, and the whole care of the switch, and everything pertaining to its security, was under the control of the section-agent and his hands, who had nothing to do with running the trains.

Held, that in the absence of an averment the company were negligent in employing an incompetent section-agent, the complaint did not sufficiently state a case of negligence against the company.

341

SECTION V.

Suits where the Injured Party is a Married Woman.

§ 180. For injuries to a married woman through the negligence of railways, as passenger-carriers, the husband may recover for expenses of the cure, and the loss of service, and in one case it was held to extend to funeral expenses, as well as medical attendance, where the wife did not recover; but if death be instantaneous, no action lies at common law."

But in a suit in the name of husband and wife, where the wife survives, a recovery cannot be had for the expenses of cure.3 In such action recovery can only be had for the personal injury and sufferings of the wife. The action in such case, for the loss of service, and of the society of the wife, and for the expenses of the cure, must be brought in the name of the husband alone.a

*SECTION VI.

Liability, where Trains do not arrive in Time.

1. Company liable to deliver passenger ac-4. Not liable for injury caused by stage comcording to contract.

2. May excuse themselves by special notice. 5. 3. Liable for damages caused by discontinu

ance of train.

pany, connecting with railway. Company excused, by giving proper notice of the course of their trains and the places of changing cars.

§ 181. 1. It would seem, upon general principles, that railways should be liable for not delivering passengers within the stipulated time, as much as for not delivering goods according to their undertaking, unless they can show that such contract is subject to some exception which existed in the particular case.

1 Pack v. Mayor of New York, 3 Comst. 489. And see Ford v. Monroe, 20 Wendell, 210, where it is held the father may recover for killing his child, and for medical attendance upon his wife, the mother, caused by the death of the child.

Eden v. Lexington & Frankfort Railw., 14 B. Monr. 204. * Fuller & Wife v. The Naugatuck Railw., 21 Conn. R. 571. Cases cited above, 1, 2, 3.