CORNELL LAW UBWAmY 
 
Olnrn^U Ham ^rl|Dol IGtbratg 
 
Cornell University Library 
 KF 1257.V95 
 
 A treatise on the law of the measure of 
 
 3 1924 019 309 792 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019309792 
 
A TREATISE 
 
 ON THE LAW OF THE 
 
 MEASURE OF DAMAGES 
 
 FOR 
 
 PERSONAL INJURIES 
 
 INCLUDING 
 
 Suggestions on Pleading, Evidence, and Province 
 
 of Court and Jury, Applicable to the Trial 
 
 of this Class of Cases 
 
 fiy fjo^ 
 
 GEORGE P; VOORHEIS, A. B. 
 
 1903 
 
 THE LANINO CO., PUBLISHERS 
 
 NORWALK, OHIO 
 
Entered According to the Act of Congress in 1903 
 
 By The I/Anhstg Company, 
 
 In the OfiBce of the Librarian of Congress at Washington, D. C. 
 
To my Alma Mater, the University of Michigan, 
 where I spent four years in the I,iterary and two 
 years in the Law Department, and where I 
 strengthened the love for study and laid the 
 foundation which have made these pages pos- 
 sible, this book is respectfully dedicated. 
 
 By The Author. 
 
PREFACE 
 
 The object of this treatise is to produce a practical and useful 
 work upon the measure of damages for a personal injury. The aim is 
 to present in a compact and convenient form, and in a logical arrange- 
 ment, the fundamental principles of law which relate to and determine 
 the right of a person to recover damages to Which he may be entitled 
 for an injury which he may have received. The theory upon which it is 
 written is, conceding there is an injury for which the wrongdoer is 
 liable, what is the measure of damages ? 
 
 There are certain recognized elements of damages which enter into 
 every personal injury, and which, when supported by proper evidence, 
 become the basis of compensation. Some one or more of theSe elements 
 must appear, in some tangible form, and be sustained by proof before 
 the injured person is entitled to recover any damages. Every fact 
 showing the natural effect of the injury, as a proximate result thereof, 
 upon the body or mind is competent to be considered by the tribunal 
 whose duty it shall be to award the damages. These elements, and the 
 principles of law applicable thereto, have been arranged and classified 
 under appropriate subjects, and all the leading authorities which in 
 any way discuss the questions relating to them have been cited. So far 
 as practical the principal elements of damages have been considered by 
 themselves in separate chapters as damages for expenses, time lost, 
 physical pain and suffering, and diminished earning capacity. 
 Damages sustained by parent and child for an injury to the child, by 
 husband and wife for an injury to the wife, for sickness developed and 
 disease aggravated, for death by wrongful act, and exemplary 
 damages have also been considered and discussed in like manner. 
 
 With the present generation there has come a new question of law. 
 It is the subject of mental suffering and the right to recover damages 
 therefor. It is an innovation upon the common law, and may properly 
 be called a child of this progressive age. There is no other recent 
 question which has been so thoroughly examined and discussed by the 
 courts. The authorities are diametrically opposed to each other and 
 are nearly evenly divided upon it, with a growing tendency in its 
 favor. It is impossible to reconcile them and no attempt has been made 
 to do so. The leading authorities have been cited and quoted wherever 
 this question has been carefully considere.l in all its phases. The 
 reason for this was to furnish the arguments pro and <ro«, and to give 
 the views of the courts as expressed by them, Ijaving their application 
 as might be deemed proper. At the same time the author has not failed 
 to express his own conclusions upon the same questions. 
 
 (5) 
 
vi PREFACE. 
 
 There seems to to be a confusion in regard to what is meant by 
 bodily injury. Some authorities hold that bodily injury must be based 
 upon and be confined to some present and immediate physical injuryr 
 The test of an injury is its effect upon the body or mind, for the mind is 
 a part of the body when considered in this relation. If the effect of an 
 injury be physiological, rather than psychological, it is a basis for 
 damages. Keeping this rule in mind, the solution of the question 
 becomes easy. The physiological effect may be, but it need not 
 necessarily be; an immediate effect so long as it is the proximate result 
 of the injury as subsequently manifested. Suffering does not depend 
 upon a physical blow, but if suffering be caused it becomes a factor to 
 be recognized and considered, in cause and effect, as any other result, 
 whether it be physical or mental — whatever the degree of difference is 
 between them. 
 
 This question of mental suffering has been classified under 
 different subjects as they appear in the varied commercial and social 
 relations of life, as damages for humiliation, criticism, discrimination 
 and insults in public places without cause; for malicious arrest or 
 false imprisonment; for breach of contract of marriage, and for 
 negligent transmission and delivery of telegrams. It has received a 
 careful examination and consideration, in separate chapters— under 
 proper subdivisions, and special attention is called to the inanner in 
 which it has been discussed. 
 
 There are two other features of the work which are also recom- 
 mended for their utility. One is the list of verdicts which have been • 
 recovered for different injuries, where they have been permanent or 
 resulted in death. It is often important to know what judgments have 
 been sustained by the courts in an argument for a new trial or in the 
 appellate court. It is believed that they will serve a useful purpose 
 and save much labor and time. The other feature is the quotations 
 from the authorities cited. The practitioner wants not onlw. the 
 authority, but especially wants to know what has been said By the 
 court upon the question under consideration. Where the exact 
 language, has not been given , the holding of the court has been. This 
 will save tinie in the examination of these authorities, and will be con- 
 venient to use before the court when the reports cannot be consulted or 
 produced. 
 
 The last four chapters are devoted to pleadings, evidence, and the 
 province of the court and jury. . They may be called practical sugges- 
 tions upon questions which, experience has taught, frequently appear 
 in the preparation and trial of actions for personal injury. They 
 relate to questions which every person engaged in the prosecution or 
 defense should know or wish to know and which may be necessary to 
 find without delay. They are fundamental in their character. To the 
 inexperienced and possibly to the experienced attorney they may be 
 useful in many ways. 
 
 It must be borne in mind that this work is confined principally to 
 questions of damages, and that questions of negligence are not 
 
PREFACE. vii 
 
 discussed, except in illustration of some question relating to damages. 
 If, therefore, the practitioner does not find some particular case with 
 which he is familiar, it is not necessarily an omission or oversight of 
 the author. 
 
 Attention is also called to the cross references in the citation of 
 authorities to the Lawyers Reports, Annotated ; the American 
 Decisions, Reports, and State Reports ; and the ReporterBy stem. They 
 will be of service to the attorney who may have one of these series of 
 reports, but not the State Reports, which are also given. 
 
 It is interesting to mark the innovations which modern thought 
 and modern civilization have wrought upon the so-called established 
 precedents of the common law. Many courts have clung tenaciously 
 to the old rules and decisions, choosing to trod per antiquas vias, while 
 others have overthrown or modified them to meet the new exigencies 
 and conditions of modern life. 
 
 There is scarcely any limit to the amount of work in the prepa- 
 ration of a treatise of this character. With the utmost care in verifi- 
 cation, errors in references or otherwise may be found. What has 
 been done speaks for itself— ^ej ipsa loquitur. A practical work has 
 been the aim of the author. All that he can wish is that its worth and 
 value may be commensurate with the amount of labor bestowed upon it. 
 
 Believing that it will be of assistance and will save time in the 
 examination of the questions relating to this interesting subject, it is 
 submitted to the profession for a favorable consideration. 
 
 GEORGE P. VOORHEIS. 
 
 Toledo, Ohio, January, 1903. 
 
TABLE OF CONTENTS, 
 
 CHAPTER I. 
 
 damages in genbbal. 
 Sec. Page. 
 
 1. Introductory 1 
 
 2. Classes of injured persons 2 
 
 3. Causes of injuries 2 
 
 4. Damages, meaning of 3 
 
 5. Damage? recoverable 4 
 
 6. No mathematical rule 5 
 
 7. Each case determined by itself ^,~ ., 6 
 
 8. Remedy for injury 7 
 
 9. Necessary difficulties, province of jury 11 
 
 10. Sources of damages 12 
 
 11. What is the measure of damages 14 
 
 12. Damages should be reasonable 14 
 
 CHAPTER II. 
 
 CLASSES AND ELEMENTS OP DAMAGES. 
 
 13. Classes of damages 16 
 
 1st. Compensatory 16 
 
 a Nominal 16 
 
 6 Direct 16 
 
 c Remote 16 
 
 2d. Special 17 
 
 3d. Exemplary 17 
 
 14. Elements of damages 17 
 
 1st. Expenses 18 
 
 2d. Time lost 18 
 
 3d. Physical pain 18 
 
 _— 4th. Diminished earning capacity 18 
 
 5th. Mental suffering 18 
 
 6th. Sickness and disease 19 
 
 7t_. Loss of services of husband or wife 19 
 
 8th. Pecuniary loss, by death 19 
 
 CHAPTER III. 
 
 EXPENSES PAID AND INCtlERED. 
 
 15. Expenses paid and incurred 20 
 
 16. Proof of reasonableness and necessity of expenses 22 
 
 17. Proof of payment unnecessary 25 
 
 (ix) 
 
X TABLE OP CONTENTS. 
 
 Sec. P^^=- 
 
 18. Gratuitous services ^° 
 
 a Nursing by family ^° 
 
 19. Future medical services 2' 
 
 20. Married women ; ^8 
 
 21. Parent and infant 29 
 
 22. Funeral expenses 29 
 
 23. Medical expenses in case of death 31 
 
 24. Pleading 31 
 
 25. Special expenses 32 
 
 26. Employment of .servant • • ■ 33 
 
 27. Duty of injured person to employ a physician 33 
 
 a Employment protects 35 
 
 6 Where physician is injured 37 
 
 c Operation 38 
 
 28. Non-employment of physician 39 
 
 29. Expenses — malpractice 39 
 
 CHAPTER IV. 
 
 DAMAGES FOR lOSB OF TIME. 
 
 30. Loss of time recoverable 40 
 
 a Amount of time lost 41 
 
 & What was it worth 41 
 
 c Distinction 43 
 
 31. Test of the value of time lost 43 
 
 32. Loss of time caused by illness 44 
 
 33. Time lost by husband or parent 44 
 
 34. Persons on a salary 46 
 
 a Mitigation 48 
 
 35. Average earnings 48 
 
 36. Proof 01 value of time lost 49 
 
 a General rule 52 
 
 6 Different occupations 52 
 
 37. Profits of business 56 
 
 a Speculative profits 57 
 
 6 Prospective profits 57 
 
 c Profits when recoverable 58 
 
 38. Married women 59 
 
 39. Opinion evidence of value of time lost Inadmissible 59 
 
 40. Mitigation of damages 60 
 
 a Wages received during disability 61 
 
 41. Double remedy 62 
 
 42. Pleading 62 
 
 CHAPTER V. 
 
 BODILY PAIN AND SUFFERING. 
 
 43. Physical pain and suffering in general 63 
 
 44. Compensation for physical pain 64 
 
 45. Future pain and suffering 68 
 
 46. Future pain and suffering must be reasonably certain ... .. 70 
 
 a Different ways of stating the rule 71 
 
 & Improper instructions : .............. . 72 
 
 c Proper instructions ". 73 
 
 d Evidence when sufiicient . . ; 74 
 
TABLE OF CONTENTS. xi 
 
 Sec. Page. 
 47 Probable duration of life 76 
 
 48. Compensation for physical pain 76 
 
 a Not exemplary 76 
 
 49. Proof of pain 76 
 
 50. Recovery for pain when death occurs 77 
 
 51. Expert or opinion testimony 78 
 
 52. Exclamations of pain by injured party 79 
 
 CHAPTER VI. 
 
 DIMINISHED EARNING CAPACITY. 
 
 53. Loss of earning power 85 
 
 o Diminished earning capacity, meaning of 87 
 
 54. Proof of loss of earning power 90 
 
 a Conclusive proof of 91 
 
 55. Evidence of loss of earning power 92 
 
 56. Evidence of diminished capacity to follow ordinary occupation . 96 
 
 a Growing years, infirmities of 97 
 
 6 Occupation and rank 97 
 
 c Household work 97 
 
 d Total or partial aisability 98 
 
 e Increasing disability 98 
 
 f Disability must be reasonably certain 98 
 
 g Absolute certainty not required 99 
 
 h Future damages not discretionary 99 
 
 i Resultant disability 99 
 
 57. Earnings since injury 100 
 
 a Other occupations 100 
 
 6 Temporary employment 100 
 
 c Same earnings 100 
 
 58. Line of promotion 101 
 
 a Acquiring capacity and experience in same or other busi- 
 ness 103 
 
 Evidence of promotion 104 
 
 59. Earning capacity, now computed 105 
 
 a General rule 106 
 
 6 The sum is not a perpetuity 107 
 
 60. Mortality tables HO 
 
 a Injuries not permanent 113 
 
 6 Pain and suffering 113 
 
 c When not admissible 113 
 
 d Infancy, under age 114 
 
 e Tables in use 114 
 
 61. Expert testimony H* 
 
 62. Profits •■ 120 
 
 63. Actions for separate injuries 12^ 
 
 64. Impairment of prospects of marriage 123 
 
 65. Damages for injury to health 124 
 
 66. Damages without intent to harm 124 
 
 67. Verdicts in personal injury cases 125 
 
 68. Damages to mental faculties ^ 126 
 
 69. Damage to head "i^" 
 
 70. Damages to face and sight ". 1^7 
 
 71. Damages to hearing i^^ 
 
 72. Damages to spine and back ^^s* 
 
xii TABLE OP CONTENTS. 
 
 Sec. Page. 
 
 73. Total disability 131 
 
 74. Partial disability 135 
 
 75. Injuries to heart 136 
 
 76. Injuries to fingers 137 
 
 77. Damages to hand 138 
 
 78. Damages to wrist 139 
 
 79. Damages to arm • • ■ 140 
 
 80. Damages to thigh and hip 142 
 
 81. Damages to leg 143 
 
 82. Damages to ankle, foot and toes 147 
 
 83. Damages for injury to health 149 
 
 84. Damages awarded for ejecting passengers 150 
 
 85. Damages, miscellaneous Injuries 151 
 
 CHAPTER VII. 
 
 MENTAL SUFFERING. 
 
 86. Mental suffering in general 153 
 
 87. No fixed rule for measurement 157 
 
 88. Amount need not be proved 157 
 
 89. Future mental suffering 157 
 
 90. Classes of mental suffering 158 
 
 a Mental suffering caused by physical injury 158 
 
 & Criticism or humiliation caused from physical Infirmity. 158 
 
 c Insult, assault or discrlminatin In public places 159 
 
 d Publication or utterance of libel or slander 159 
 
 e Malicious prosecution or false Imprisonment 159 
 
 f Negligent delivery of telegrams 159 
 
 g Breach of contract of marriage 159 
 
 ft Unlawful sale of liquors to husband 159 
 
 i Exemplary damages 159 
 
 CHAPTER VIII. 
 
 MENTAL SUFFERING CONTINUED. 
 
 91. Mental suffering based on physical injury . . . ., 160 
 
 92. Nervous shock, peril and fright \[\ lg3 
 
 o Mere fright 164 
 
 CHAPTER IX. 
 
 MENTAL SUFFERING CONTINUED. 
 
 93. Mental suffering based on mutilation of body 168 
 
 a Contrary rule 172 
 
 & Federal court rule [[[[ ■• iro 
 
 94. Damages not required to be pleaded -inn 
 
 95. Suffering in apprehension of bodily pain 1 70 
 
 96. What is bodily injury iLt 
 
TABLE OF CONTENTS. xiii 
 
 CHAPTER X. 
 
 mental sttffkeing continued. 
 Sec- Page. 
 
 97. Damages for mental suffering for humiliation, insult and in- 
 
 dignity without physical injury 184 
 
 98. Insults to women 188 
 
 a Proof of amount unnecessary 191 
 
 99. Basis of recovery 193 
 
 100. Servants, duty of 193 
 
 101. Duty towards sick persons 194 
 
 102. Discrimination between races 195 
 
 103. Measure of damages for insult 200 
 
 104. Prooi of damages for insult, indignity, etc 202 
 
 105. Elements of damages for insult, etc 203 
 
 a Injury to health 203 
 
 6 Expenses to effect a cure 203 
 
 c Injury to character or credit 203 
 
 d Inconvenience or hardship 204 
 
 e Compensation for mental suffering caused thereby 204 
 
 f Punitive damages 204 
 
 CHAPTER XI. 
 
 MENTAL SUrFEMNG. CONTINUED MENTAL SUFPEEING CAUSED BT LIBEL OR 
 
 SLANDEB. 
 
 106. Damages for mental suffering caused by libel or slander 205 
 
 107. Damages, elements of 207 
 
 108. Mental suffering, damages for 208 
 
 109. Damages, evidence of 208 
 
 CHAPTER XII. 
 
 MENTAL SUFFERING CONTINUED MENTAL SUFFERING CAUSED BY A WRONGFUL 
 
 ASSAULT, FALSE IMPRISONMENT, OB MALICIOUS PROSECUTION. 
 
 110. Wrongful assault 210 
 
 111. False imprisonment 212 
 
 112. Malicious prosecution 213 
 
 113. Damages confined to one assessment 214 
 
 114. Wrongful attachment 214 
 
 a Elements of damages 215 
 
 115. Seduction. Damages recovereable by parent 215 
 
 CHAPTER XIII. 
 
 MENTAL SUFFERING CONTINUED. NEGLIGENCE IN TRANSMITTING AND DE- 
 LIVERING TELEGRAMS. 
 
 116. Mental suffering caused by negligence in transmitting and de- 
 
 liverlng telegrams 217 
 
 117. Disclosure of relation of parties '^^'o 
 
xiv TABLE OF CONTENTS. 
 
 Sec. P^™- 
 
 118. Damages for mental suffering denied • • • 238 
 
 o Conclusion ^*° , 
 
 119. Physical pain and suffering recoverable 248. 
 
 120. Amount recoverable 249 
 
 CHAPTER XIV. 
 
 MENTAL SUFFERING CONTINUED. — BREACH OF CONTRACT OF MARRIAGE. 
 
 122. Damages for mental suffering for breach of marriage contract. 250 
 
 123. Damages, elements of 253 
 
 a Disappointment 253 
 
 6 Injury to affections 253.' 
 
 c Distress of mind 253 
 
 124. Damages, assessment of 253 
 
 125. Damages, measure of .' 254 
 
 126. No mathematical rule, province of jury 254 
 
 CHAPTER XV. 
 
 MENTAl SUFFERING CONTINUED OCCASIONED FROM SAM! OF INTOXICATING 
 
 LIQUORS. 
 
 127. Damages include mental suffering 256 
 
 128. Actual damages recoverable 259 
 
 129. Damages recoverable by father 259 
 
 130. Mitigation of damages : 260 
 
 131. Mental suffering, damages for, recoverable 260 
 
 132. Damages dependent upon a cause of action 261 
 
 133. Mental suffering, damages when not recoverable 2^1 
 
 134. Means of support 262 
 
 135. Exemplary damages 264 
 
 CHAPTER XVI. 
 
 MENTAL SUFFERING ALONE. 
 
 137. Mental suffering alone 265 
 
 138. Humiliation 268 
 
 139. Sickness 26s 
 
 140. Injury to feelings 269 
 
 CHAPTER XVII. 
 
 DAMAGES FOR INJURIES VFHICH CAUSE SICKNESS OR DEATH OR DISEASE. 
 
 141. Damages recoverable, general principles ■ 270 
 
 142. Tendency to disease 278 
 
 143. Proof, principle of recovery 284 
 
 144. Evidence of cause of Illness 284 
 
 145. Existing disease, predisposition 285 
 
 146. Latent disease, delicate health, miscarriage, fever ......... 285 
 
TABLE OP CONTENTS. xv 
 
 Sec. _ 
 
 , ^ „ ^ Page. 
 
 147. Damages, amount, no general rule 287 
 
 148. Limitation of damages . 900 
 
 149. Future effect of injury '.'.'.'.'.'.'.'.'.'.'.'. 289 
 
 150. Question for jury, mitigation ...'. 289 
 
 151. Verdicts recovered for disease developed by injury .......... 290 
 
 CHAPTER XVIII. 
 
 INJURIES SUSTAIJSIED BY MARRIED WOMEN. 
 
 152. Elements of damages recoverable by husband 293 
 
 a Loss of time • ■ ■ • • ^^^ 
 
 6 Loss of expenses 293 
 
 c Loss of services 294 
 
 d Loss of society and companionship 297 
 
 e Distress of mind , ] 304 
 
 153. Loss of prospective offspring 305 
 
 154. Proof, evidence, recovery 307 
 
 155. Amount recoverable for services 308 
 
 156. No compensation for solatium, for wounded feelings 309 
 
 a Companionship 310 
 
 157. Damages recoverable by wife 310 
 
 a Bodily pain and mental suffering 310 
 
 6 Expenses when personally liable 310 
 
 c Diminished earning capacity if engaged in business 
 
 for herself 311 
 
 d Loss of time 311 
 
 e Impairment of health 312 
 
 158. Joinder of actions by husband and wife 313 
 
 159. Wife's loss of husband's support, comfort and society 314 
 
 160. Contributory negligence of the wife, a defense 317 
 
 161. Judgments recovered .' 322 
 
 CHAPTER XIX. 
 
 DAMAGES SUSTAINED BY PARENT AND INFANT. 
 
 162. Causes of action 325 
 
 163. Actions by parents elements 325 
 
 a Expenses 325 
 
 6 Loss o^ services during minority 325 
 
 c Reasonable expectation of services after majority 326. 
 
 164. No recovery for death of infant of tender years 326 
 
 165. Proof of elements 327 
 
 166. Proof as to personal earnings 327 
 
 167. Recovery for earnings .' 327 
 
 168. Cost of board not deducted from earnings 328 
 
 169. No recovery for personal feelings 328 
 
 170. Province of jury 329 
 
 171. Verdicts recovered by parents . .' 329 
 
 172. Actions by infants 332 
 
 o Bodily pain and mental suffering 332 
 
 Diminished earning capacity 332 
 
 173. Choice of profession ^32 
 
xvi TABLE OF CONTENTS. 
 
 Sec. P-^oe. 
 
 174. Idiocy 332 
 
 175. Prospective earnings recoverable ■ 332 
 
 176. Diminished earning capacity after maturity 332 
 
 177. Loss of chances of marriage recoverable 334 
 
 178. Amount recoverable rests with jury 334 
 
 179. Infant may recover earnings during minority 335 
 
 180. Damages recoverable 337 
 
 181. Injury, how proved 337 
 
 182. Verdicts recovered by infancs 338 
 
 CHAPTER XX. 
 
 EXEMPLARY DAMAGES. 
 
 183. General principles, exemplary damages, when recoverable.... 340 
 
 184. Exemplary damages, must be proved 346 
 
 185. Exemplary damages, must be pleaded 348 
 
 186. Province of jury 349 
 
 187. Amout of damages recoverable 351 
 
 188. Excessive and inadequate damages 352 
 
 189. Counsel fees 354 
 
 190. Legislatures 354 
 
 191. Corporations liable for exemplary damages 354 
 
 a. Reckless conduct 356 
 
 6. Disturbance of peace 357 
 
 c. Insulting language 357 
 
 d. Gross negligence 357 
 
 e. Refusal to sell ticket 357 
 
 f. Refusal to stop train 357 
 
 192. Corporations held not liable 357 
 
 a. Illustrations 358 
 
 193. Actions in which exemplary damages are recoverable 359 
 
 a Illustrations 359 
 
 194. Municipal corporations not liable for exemplary damages.... 364 
 
 195. Damages for causing death dependent upon statute 364 
 
 196. Damages should be proportionate 365 
 
 197. Remission of actual dataages 366 
 
 CHAPTER XXI. 
 
 DAMAGES FOB DEATH BT WEONGFUL ACT. . 
 
 198. Common law rule 367 
 
 a. Bodily pain of decedent 369 
 
 199. Remedy dependent on locus !!!!!!!!!!!! 369 
 
 200. Damages mean pecuniary loss '.'.'.'... 370 
 
 201. Who are beneficiaries !!!!!! 372 
 
 202. Survival of right of beneficiaries ......'......'.. 372 
 
 203. Pecuniary loss, measure of damages 373 
 
 204. Measure of damages generally 375 
 
 205. Elements of damages 376 
 
 206. General rules for measuring damages 376 
 
 207. Damages, measure of, no fixed rules 377 
 
 208. Prospective damages \ _[ 378 
 
TABLE OF CONTENTS. xvii 
 
 S»:o- Page. 
 
 209. Death of husband and parent 379 
 
 a. Number of children !!!!!! 380 
 
 6. Companionship !!!!!! 381 
 
 c. Loss of moral and physical training '. 381 
 
 d. Construction of word "pecuniary" 382, 388 
 
 e. Damages L-nited to minority 382 
 
 210. Death of wife [][[ 333 
 
 a. Husband no cause, Tennessee 385 
 
 211. Death of child ,,[ 385 
 
 a. Damages limited to expectancy of parent 389 
 
 6. Marriage of survivor 389 
 
 c. Society, companionship 390 
 
 d. Mental sufEering of parents 390 
 
 212. Damages for mental sufiering, exception 391 
 
 213. Damages to collateral heirs 391 
 
 214. Solatium for wounded feelings 392 
 
 a Rule in Scotland 396 
 
 6 Kind disposition of deceased 396 
 
 215. Nominal damages 396 
 
 216. Physical and mental sufEering of deceased 397 
 
 217. Proof of physical pain and suffering 401 
 
 218. Medical expenses 402 
 
 219. Funeral expenses 403 
 
 a. Distinguished 403 
 
 220. Interest on damages 403 
 
 221. Limitation of amount recoverable 404 
 
 222. Joinder of causes of actions 408 
 
 223. Statute of limitations 409 
 
 224. Law of distribution 409 
 
 225. Proceedings in admiralty, when not maintainable 410 
 
 226. Proceedings In admiralty, when maintainable 410 
 
 227. Verdicts for death of minors 411 
 
 228. Verdicts for death of adults 416 
 
 229. Damages for surviving husband or wife 416 
 
 230. Damages, when excessive 420 
 
 231. Damages, death of next of kin 424 
 
 232. Inadequate damages 426 
 
 233. Suffering of deceased 427 
 
 CHAPTER XXII. 
 
 PLEADING IN DAMAGE CASES. 
 
 235. Preliminary Suggestions 429 
 
 236. Reason for these suggestions 430 
 
 237. Improper conception of pleadings 430 
 
 238. Necessary allegations 431 
 
 239. Negative averment, how construed 432 
 
 240. Authorities pro and con 432 
 
 a. Presumption of negligence 433 
 
 241. How allegation of negligence should be stated 433 
 
 242. Examples, illustrations 434 
 
 243. What should be specially pleaded 435 
 
 244. Pleading in Ohio. Action by servant 436 
 
xviii TABLE OP CONTENTS. 
 
 Sec. P^«=' 
 
 245. Averments when death results from injuries 43^ 
 
 246. Transitory action, jurisdiction of courts 4^° 
 
 247. Proceedings in personam, where death follows 440 
 
 248. Pleadings in case of death ^^^ 
 
 CHAPTER XXIII. 
 
 EVIDENCE. 
 
 250. General suggestions 441 
 
 251. Proof, negligence, presumption 441 
 
 252. Accidents inevitable and unexpected 443 
 
 253. Essentials, elements of proof 444 
 
 254. Precedent negligence 445 
 
 255'. Fundamental rules 445 
 
 o. Declarations 446 
 
 6. Limitation, within which admissible 449 
 
 256. General loss, how shown 456 
 
 257. Res gestae, contemporaneous facts 456 
 
 a. What is res gestae 457 
 
 6. What is not res gestae 457 
 
 258. Evidence of plaintiff 457 
 
 259. Evidence of unskilled witnesses 458 
 
 260. Evidence of physicians 458 
 
 a. Physician's evidence a future attendance inadmissible. . 459 
 
 261. Evidence when person is mutilated 459 
 
 262. Evidence in case of death of adults 459 
 
 263. Evidence in case of death of infants 460 
 
 264. Marriage of surviving husband or wife 460' 
 
 265. Reasonable doubt 460' 
 
 266. Indebtedness of plaintiff 460 
 
 267. Special damages 461 
 
 268. Loss of partnership 461 
 
 269. Loss of literary emoluments 461- 
 
 270. Interest 462 
 
 271. Exhibition of injured part 464 
 
 272. Surgical examination of injured person 464 
 
 o. Personal examination of injured part 473 
 
 273. Physical examination during trial 474 
 
 274. Effect on mind or health 475 
 
 275. Limitation of damages to one action 475 
 
 276. Amendment ad damnum, 476 
 
 277. General reputation of employes 476 
 
 278. Photograph, maps and diagrams 479' 
 
 CHAPTER XXIV. 
 
 EVIDENCE FACTS INADMISSIBLE. 
 
 279. Classes of questions 4g]^ 
 
 a. Questions of negligence \ \\ ^g^ 
 
 6. Questions of intent 481 
 
 c. Questions of damages 482 
 
 280. Limitation of issues 482- 
 
 281. Character, reputation [ ^ ^03. 
 
TABLE OF CONTENTS. xix 
 
 S=<^- . Page. 
 
 282. Habits of plaintiff or of the deceased or defendant 484 
 
 283. Prior injuries 435 
 
 284. "Wealth and poverty [.[............... 486 
 
 285. Wealth and povery, exception, exemplary damages 487 
 
 286. Wealth and poverty, exception, pecuniary loss 488 
 
 287. Number of family 489 
 
 288. Intemperate habits 49O 
 
 289. Debts of decedent .' 491 
 
 290. Dying declarations 492 
 
 a. Exception . 492 
 
 291. Cost of board 492 
 
 292. Tendency to disease 493 
 
 293. Policies of insurance 493 
 
 294. Coroner's inquest 494 
 
 295. Release or compromise 494 
 
 296. Stipulation, waiving liability 497 
 
 297. aex > 497 
 
 298. Injuries received on Sunda-y 497 
 
 299. Expenses of counsel 499 
 
 300. Contributions , 501 
 
 301. Offers of donation ,..:... 501 
 
 302. Offers or negotiations of compromise 501 
 
 CHAPTER XXV. 
 
 PROVINCE OP COUET AND JUKT. 
 
 303. Relation of court and jury 502 
 
 304. Province of court 503 
 
 305. Duty to submit to jury, when 505 
 
 306. Questions for instructions 507 
 
 307. Expressions of opinion 509 
 
 a. Exception 509 
 
 6. Exemplary damages 510 
 
 308. Province of jury 511 
 
 309. What the verdict should show, a reasonable verdict 514 
 
 310. Verdict, when disturbed 515 
 
 311. Inadequate damages 516 
 
 312. Itemized verdict 518 
 
 313. Successive verdicts 519 
 
 314. Damages, when increased or corrected 519 
 
 315. Damages when decreased, remittitur 520 
 
TABLE OF CASES* 
 
 Page. 
 
 Aaron v. 2d. Ave. R. Co. (2 Daly, N. Y., 127) 71 158 
 
 Abbott V. Heatb (84 Wis. 314) ■....' 83 
 
 Abbott V. McCadden (81 Wis. 563) 379 331 
 
 Abilene v. Wright (4 Kan. App. 708) '. 21, 25, 65, 87 
 
 Adams Express Co. v. Egbert (36 Pa. St. 360) ! . 435 461 
 
 Adams v. Railroad Co. (31 L. J. Ex. 38) 513' 515 
 
 Adams v. Smith (58 111. 418) .' 185 
 
 A Heaton (43 Fed. Rep. 592) 131, 142, 410 
 
 Aherns v. Steele (1 N. Y. S. 259) 331' 413 
 
 Agricultural & M. Ass. v. State (71 Md. 17) .' 329 
 
 Ainley v. Railway Co. (47 Hun, 206) 294 
 
 Akersloot v. Railway Co. (8 N. Y. S. 926) 145, 327, 330 
 
 Akersloot v. Railroad Co. (131 N. Y. 599) 339 
 
 Alabama & G. S. R. Co. v. Arnold (84 Ala. 159) 342, 348 
 
 Alabama & G. S. R. Co. v. Bailey (112 Ala. 167) 130 
 
 Alabama & G. S. R. Co. v. Ballard (90 Ala. 71) 357 
 
 Alabama & G. S. R. Co. v. Frazier (93 Ala. 45) . . 48, 52, 54, 86, 350 351 
 
 Alabama & G. S. R. Co. v. Hill (93 Ala. 514) 63, 123 
 
 Alabama, etc. Ry. Co. v. Yarbough (83 Ala. 3) 86, 97 
 
 Alaska (130 U. S. 201) 410, 411 
 
 Alberti v. N. Y. & L. E. R. Co. (118 N. Y. 77) 88, 132 
 
 Albertz v. Albertz (78 Wis. 72) 254 
 
 Albrecht v. Railroad Co. (87 Wis. 105) 4^6 
 
 Albrecht v. Walker (73 111. 69) 262 
 
 Alexander v. Blodgett (44 Vt. 476) 185 
 
 Alexander v. Humber ( 86 Ky. 565) 87 
 
 Alexander v. Railway Co. (12 N. Y. S. 685) 132 
 
 Alijandra, The, (56 Fed. Rep. 621) 21, 135 
 
 Allen V. Railway Co. (106 Iowa 602) Ill 
 
 AUender v. C, R., I. & P. R. R. Co. (37 Iowa 264) 36 
 
 Alliance v. Campbell (6 C. D. O. 762) 96 
 
 Alliance Review Pub. Co. v. Valentine (6 C. D. O. 323) 361 
 
 Allison V. Chandler (11 Mich. 542) 5, 59 
 
 Allison V. McCune (15 Ohio 726) 7 
 
 Allison V. Railroad Co. (42 Iowa 271) 284, 486 
 
 Allsop V. AUsop (5 Hurlst. & N. 534) 247 
 
 Alpena v Churchill (53 Mich. 607) 460 
 
 Alton Paving Bdg. & P. B. Co. v. Hudson (74 111. App. 612) 134 
 
 American Waterworks Co. v. Dougherty (31 Neb. 445) 161, 162 
 
 Anderson v. The Ashbrojke (44 Fed. Rep. 124) 146 
 
 Anderson v. Humber (86 Ky. 505) 160 
 
 Anderson v. Railroad Co. (35 Neb. 95) 391 
 
 Anderson v. Railroad Co. (21 Ore. 281) 512 
 
 ( xxi ) 
 
xxii TABLE OF CASES. 
 
 Page. 
 
 Anderson v. Railway & Depot Co. (30 Pac. Rep. 305) 79 
 
 Anderson v. Street Ry. Co. (12 Ind. App. 194) °3 
 
 Andrews v. Bodecker (17 111. App. 213) • ■ *fO 
 
 Anglo-American Packing Co. v. Baler (31 111. App. 653) 129, 140 
 
 Annas v. Railroad Co. (67 Wis. 24) •- 416, 488, 490 
 
 Anthony v. Louisville, etc., R. L,o. (27 Fed.; Rep. 724) 86, 88, 160 
 
 Apsey V. Railroad Co. ( 83 Mich. 440 ) 505 
 
 Arkansas Mid. Ry. Co. v. Griffith (63 Ark. 491) 54, 92, 112 
 
 Armstrong v. South. E. Ry. Co. (11 Jur. 758) 49 
 
 Arnold v. Railroad Co. (115 Pa. St. 135) 2, 512 
 
 Aryman v. Marshalltown (90 Iowa 350) 82 
 
 Ashcraft v. Chapman (38 Conn. 230) 21, 65, 156 
 
 Ashtabula v. Bartram (2 C. D. 0. 372) 455 
 
 Ashtabula Rap. Trans. Co. v. Stephenson (12 C. D. O. 631) 354 
 
 Aslen V. Charlotte (57 N. Y. S. 754) 130 
 
 Ashton V. City Ry. Co. (78 Mich. 587) 82 
 
 Ashworth v. Railway Co. (18 Q. B. 104) 5, 11, 513 
 
 Atchison, etc., Rd. Co. v. Brown (26 Kan. 443) 425 
 
 Atchison T. & S. F. R. Co. v. Chance (57 Kan. 40) ... 47, 60, 267, 381 
 
 Atchison T. & S. F. R. Co. v. Click (32 S. W. R. 226) . .-. 21, 32 
 
 Atchison, T. & S. F. R. Co. v. Cross (49 Pac. Rep. 599) 326, 386 
 
 Atchison, T. & S. F. R. Co. v. Dickey (1 Kan. App. 770) 294 
 
 Atchison, T. & S. F. R. Co. v. Johns (36 Kan. 769) 83 
 
 Atchison, T. & S. F. R. Co. v. Lamoreaux (43 Pac. Rep. 152) 
 
 155, 157, 160, 519 
 
 Atchison, T. & S. F. R. Co. v. Lee (54 Pac. Rep. 4) 65, 87, 323 
 
 Atchison, T. & S. F. R. Co. v. McCandless (33 Kan. 366) 512 
 
 Atchison, T. & S. F. R. Co. v. McGinnis (46 Kan. 109) 
 
 59, 65, 164, 172, 310 
 
 Atchison, T. & S. F. R. Co. v. Midgett (1 Kan. App. 138) 162 
 
 Atchison, T. & S. F. R. Co. v. Moore (31 Kan. 197) 144, 519 
 
 Atchison, T. & S. F. R. Co. v. Rose (43 Kan. 605) 23 
 
 Atchison, T. & S. F.R. Co.' v. Rowe (56 Kan. 411) 44, 398 
 
 Atchison, T. & S. F. x.. Co. v. Sadler (38 Kan. 128) 515 
 
 Atchison, T. & S. F. R. Co. v. Thul (32 Kan. 255) 459 
 
 Atchison, T. & S. F. R. Co. v. Thul (29 Kan. 466) 469, 470, 472 
 
 Atchison, T. & S. F. R. Co. v. Weber (33 Kan. 543) 397 
 
 Atchison, T. & S. F. R. Co. v. Wilson (48 Fed. Rep. 57) 381, 393 
 
 Atchison v. Goodrich (60 Wis. 141) 506 
 
 Atkyn v. Railway Co. (41 Fed. Rep. 193) 370 
 
 Atlanta Consol. St. Ry. Co. v. Beauchamp (93 Ga. 6) 112 
 
 Atlanta, etc., R. Co. v. Ayres ( 53 Ga. 12) 309 
 
 Atlanta, etc., R. Co. v. Condor ( 75 Ga. 51) 347 
 
 Atlanta & W. P. R. Co. v. Johnson (66 Ga. 259) 69, 71 
 
 Atlanta, etc., R. R. Co. v. Keeney (99 Ga. 266) 185 
 
 Atlanta, etc., R. R. Co. v. Smith (81 Ga. 620) 284 
 
 Atlanta, etc., R. R. Co. v. Wood (48 Ga. 565) ; . . 64, 171 
 
 Atlantic & Gr. W. Rd. Co. v. Campbell (4 0. S. 583) 79 
 
 Atlantic & Gr. W. R. Co. v. Dunn (19 O. S. 162) 17 
 
 Atlantic, etc., R. Co. v. Gathright (92 Va. 627) ' 64 
 
 Atlantic, etc., R. R. Co. v. Newton (85 Ga. 57) 60 
 
 Atlantic, etc., Rd. Co. v. Smith (81 Ga. 620) 312 
 
 Althorp V. Wolfe (22 N. Y. 355) 493 
 
 Augusta Factory v. Davis (87 Ga. 648) 30, 31, 402 
 
 Augusta & S. R. Co. v. Randall (85 Ga. 297) '156, 160 
 
 Aurora v. Rockabrand (149 111. 399) ' 128 
 
 Austin R, T. Ry. Co. v. Cullen (39 S. W. Rep. 256) 388, 413 
 
TABLE OF CASES. xxiii 
 
 Baddeley v. Railroad Co. (54 111. 19) ' ^'^^rI 
 
 Babcock v. Railway Co. (36 Minn. 147) 40, 
 
 Badgley v. Decker (44 Barb. 577) 21fi 
 
 Bagley v. Mason (37 Atl. Rep. 287) 47 
 
 Bailey v. Cincinnati ( 1 Handy 438) r. 41 
 
 Baillee v. Bryson (1 Murray) 3 
 
 Baker v. Bolton (1 Comp. 493) oqV VqV onA 
 
 Baker v. Hagey (177 Pa. St. 128) .■.".';.■ ' ' 27 
 
 Baker v. Penn. R. Co. (142 Pa. St. 503) 65 
 
 Baker v. Portland (58 Me. 199) 49g 
 
 Baker v. Railroad Co. (50 N. Y. S. 999) 324 
 
 Baker v. Railroad Co. (54 N. Y. S. Ct. 394) . gg 
 
 Ball V. Mabry (91 Ga. 781) 64 69 
 
 Ballou V. Farnum (11 Allen, Mass., 53) 65 155 160 
 
 Baltimore City R. Co. v. Kemp (61 Md. 74) 13, 21, 28, 271, 
 
 276, 278, 279,' 290' 493 
 
 B. & O. Rd. Co. V. Barger (80 Md. 23) 358 
 
 B. & O. R. R. Co. V. Bryant (6 C. D. O. 332) 496 
 
 B. & 0. Rd. Co. V. Boteler (38 Md. 568) 49I 
 
 B. & 0. Rd. Co. V. Botiler (74 N. Y. 356) 60 61 
 
 B. & O. Rd. Co. V. Boone (45 Md. 344) ' 17 
 
 B. & O. Ry. Co. V. Henthorne (73 Fed. Rep. 634) 86 106 
 
 B. & O. Rd. Co. V. Kean (65 Md. 394) 65*155 
 
 B. & O. Rd. Co. V. Noell (29 Gratt, Va., 394) .' 310 
 
 B. & O. Rd. Co. V. Stanley (54 111. App. 215) 417 
 
 B. & O. Rd. Co. V. State (30 Ind. 366) 503 
 
 B. & O. Rd. Co. V. State (33 Md. 542) 378 
 
 B. & O. Rd. Co. V. State (41 Md. 268) 379 
 
 E. & O. Rd. Co. V. State (60 Md. 473) 503 
 
 B. & O. Rd. Co. V. State ( 63 Md. 135) 370, 392 
 
 B. & O. Rd. Co. V. State (32 Atl. Rep. 201) 453 
 
 B. & O. Rd. Co. V. Sulphur Springs (96 Pa. St. 65) 443 
 
 B. & 0. Rd. Co. V. Stoltz (9 C. D. O. 638) 504 
 
 B. & O. S. R. R. Co. V. Then (59 111. App. 561) 388, 414 
 
 B. & O. Rd. Co. V. Whitaker (24 O. S. 642) 433 
 
 B. & O. Rd. Co. V. Whittington (30 Gratt., Va. 805) 431 
 
 B. & O. Rd. Co. V. Wightman (29 Gratt, Va., 431) 89, 386, 493 
 
 Baltimore, Pitts., etc., R. Co. v. McDonald (68 Ind. 316) , 199 
 
 Baltimore & Sus., etc., R. Co. v. Woodruff (4 Md. 506) '485 
 
 Baltimore Turnpike Co. v. State (60 Md. 449) 393 
 
 Baltimore Turnpike Co. v. State (71 Md. 573) 379, 393 
 
 Baldwin v. Barney (12 R. I. 392) 498 
 
 Baldwin v. Western Ry. Co. (8 Gray., Mass., 333) 17 
 
 Baltzer v. Railroad Co. (89 Wis. 257) 89, 141, 339 
 
 Bank v. Seymour (64 Mich. 59) 501 
 
 Bannon v. B. & O. Rd. Co. (24 Md. 108) 65 
 
 Banyea v. Railroad Co. (19 D. C. 76) 388 
 
 Bailey v. Railroad Co. (4 Biss. 436) 488, 490 
 
 Barbee v. Reese (60 Miss. 906) 63 
 
 Barbour v. Stephenson (32 Fed. Rep. 66) 215 
 
 Barbour County v. Horn (48 Ala. 577) 364 
 
 Burdoin v. Trenton (22 S. W. Rep. 728) 322 
 
 Barg V. Bonsfield (65 Minn. 355) 137,. 338 
 
 Barker v. Town of Perry (67 Iowa 146) •; 464 
 
 Barlow v. Lowder (35 Ark. 492) , 64 
 
 ?arnes v. Campbell (60 N. H. 27) • ■ ■' l»o 
 
xxiv TABLE OF CASES. ' 
 
 Page. 
 
 Barnes v. Keene (132 N. Y. 1) 45 
 
 Barron v. Railroad Co. (5 Wall. 900) 400, 402 
 
 Barton v. Railway Co. (52 Mo. 253) 503, 512 
 
 Bateman v. Railroad Co. (47 Hun. 299) 71 
 
 Batterson v. Chicago, etc., R. Co. (49 Mich. 184) 434 
 
 Baulec V. Railroad Co. (59 N. Y. 356) 434, 455, 485 
 
 Baumeister v. Markham (101 Ky. 122) 313 
 
 Baylies v. Curry (128 111. 287) 197 
 
 Bay Shore R. Co. v. Harris (67 Ala. 6) 4 
 
 Baxter v. Railway Co. (87 Iowa 488) 87 
 
 Beauchamp v. Saginaw Mining Co. (50 Mich. 163) 271, 273 
 
 Bean v. Green (33 O. S. 444) 257, 264 
 
 Beard v. Railroad Co. (13 C. D. O. 169) 436 
 
 Beardslee & Columbia Township (188 Pa. St. 496) 479 
 
 Beasely v. Telegraph Co. (39 Fed. Rep. .181) 218, 228, 267, 391 
 
 Beck V. Thompson (31 "W. Va. 459) 41, 210, 211 
 
 Becker v. Dowell (40 Mo. App. 71) 142, 348, 488 
 
 Becker v. Janinski (15 N. Y. S. 675) 39 
 
 Beckwith v. Railway Co. (44 Barb. 299) 124 
 
 Beems v. Railway Co. ( 58 Iowa 150) 487, 489, 490 
 
 Beesen v. Green M. G. M. Co. (57 Cal. 20) 310, 395 
 
 Beiselgel v. Railroad Co. (40 N. Y. 9) 53, 455 
 
 Belair v. Chic. & N. W. R. Co. (43 Iowa 662) 104, 132 
 
 Belch V. Railroad Co. (18 Mo. App. 80) 79 
 
 Belding v. Railway Co. (3 S. Dak. 369) 398 
 
 Belknap t. Railway Co. (49 N. H. 358) 489, 520 
 
 Bell V. Railway Co. (10 C. B. N. S. 287) 17 
 
 Bell V. Railway Co. (L. R., 26 la. 428) 124, 176 
 
 Bellman v. Railroad Co. (49 N. H. 358) 348 
 
 Beltz V. Yonkers (74 Hun 73) 144 
 
 Belyea v. Minneapolis, etc., R. Co. (61 Minn. 224) 28 
 
 Bennett v. Beam (42 Mich. 346) 250 
 
 Bennett v. Bennett (116 N. Y. 584) 310, 314, 315 
 
 Benedict v. Fond du Lac (44 Wis. 495) 140 
 
 Bennett v. Hohro (72 Cal. 178) 517 
 
 Bennett v. Railroad Co. (2 N. D. 112) 83 
 
 Bennett v. Railroad Co. (37 N. Y. S. 447) 339 
 
 Bennett v. Railway Co. (13 N. Y. 563) 130 
 
 Berg V. Railway Co. (50 Wis. 419) 89, 143 
 
 Berger v. Jacobs (21 Mich. 215) 297, 302, 310 
 
 Berry v. Railway Co. ( 72 Fed. Rep. 488) 145 
 
 Bierbach v. Goodyear Rubber Co. (54 Wis. 208) 51, 52, 57, 121 
 
 Bird V. Thompson (96 Mo. 424) 250 
 
 Blgelow V. Doollttle ( 36 Me. 115) 520 
 
 Bigelow V. Metropolitan St. Ry. Co. (48 Mo. App. 367) 
 
 12, 64, 67, 68, 69, 75, 155 
 
 Blgaouette v. Paulet (134 Mass. 123) 297, 299 302, 303 
 
 BIrbeck v. Achroyd (74 N. Y. 356) 59 
 
 Blrkett v. Knickerbocker Ice Co. (110 N. Y. 504) 
 
 306, 378, 3S7, 38'9, 397 
 
 Birmingham Mineral R. Co. t. Wilmer (97 Ala. 165) 113 
 
 Birmingham Union Ry. Co. v. Hale (90 Ala. 8) .'. 82 
 
 Bishop V. Railway Co. (50 N. W. 927) 291 
 
 BJtner v. Railroad Co. (4 Utah 502) 89, 133 
 
 Black V. Railroad Co. (10 La. Ann. 33) .'.'.'... 268, 520 
 
 Blackburn v. Mann (85 111. 222) '254 
 
 Blackinska v. Howard Mission ( 130 N. Y. 497) . . 296 
 
TABLE OF CASES. xxv 
 
 Page. 
 
 Blackman v. Gardiner Bridge Co. (75 Me. 214) 21, 61, 65, 88 
 
 Blair v. Chic, etc., R. Co. (89 Mo. 383) 64 
 
 Blair v. Maaison Co. (81 Iowa 313) Ill, 112 
 
 Blair v. Railroad Co. (89 Mo. 334) 310, 494, 497 
 
 Blair v. Pelham (118 Mass. 420) 479 
 
 Blake v. Railway Co. (18 Q. B. 93) 185, 309 
 
 Blake v. Midland R. Co. (10 Eng. L. & Eq. 437) 65 
 
 Block V. Railway Co. (89 Wis. 371) 71, 73, 83, 92, 98 
 
 Bloom V. Hanhattan, etc., K. Co. (17 N. Y. S. 872) 73 
 
 Bloomington v. Chamberlaine (104 111. 268) 17 
 
 Blunt V. Little (3 Mason. Fed.) 102 
 
 Board v. Verberg ( 63 Ind. 107) 501 
 
 Boettger v. Architectural Iron Co. (136 Mo. 531) Ill, 115, 121 
 
 Bogenschultz v. Smith (84 Ky. 330) 432 
 
 Bolden v. Jensen (70 Fed. Rep. 505) 137 
 
 Bolinger v. Railroad Co. f36 Minn. 418; 31 N. W. Rep. 856; 29 Am. 
 
 & Eng. R. Cases 408) 379, 418 
 
 Bond Hill v. Alkinson (9 C. D. O. 185) 65, 88, 136, 419, 516 
 
 Bonner v. Whitcomb (80 Tex. 178) 419 
 
 Boone v. Railroad Co. (20 Mo. App. 232) 436 
 
 Borgesen v. N. S. Projectile Co. (37 N. Y. S. 458) 138 
 
 Borland v. Barrett (76 Va. 128) 351, 352 
 
 Boston & Colo. Smelting Co. v. Pless (8 Colo. 87) 515 
 
 Boster v. Railway Co. (36 W. Va. 318) 150 
 
 Boston V. O'Reilly (158 U. S. 334) 57, 121 
 
 Boulter v. Webster (13 Weekly Rep. 289) 301 
 
 Boulter v. Webster (11 L. T. 598) 397 
 
 Bovee v. Danville (53 Vt. 183) 21, 65, 154, 161, 266 
 
 Bowers v. Boston (155 Mass. 334) 409 
 
 Bowers v. Union Pac. Ry. Co. (4 Utah 215) 89, 131, 148 
 
 Bowdle V. Street Railway Co. (103 Mich. 277) 294 
 
 Bowler v. Railroad Co. (49 Hun 324) 329 
 
 Boyce v. BaylifEe (1 Camp. 58) 101 
 
 Boyle V. Case (9 Saw., U. S. 386) 185 
 
 Bradburn v. Railway Co. (10 Exch. 1) 493 
 
 Bradbury v. Benton (69 Me. 199) 88 
 
 Bradley v. Cramer (66 Wis. 297) 208 
 
 Bradshaw v. Railway Co. (1 Q. B. D. 599) ............ ..^ 408 
 
 Bradt v. Non Pariel Co. (IS Iowa «) tt>:ff.4em-'t4S 209 
 
 Brady v. Railway Co. (6 N. Y. S. 533) 144 
 
 Braithwaite v. Hall (168 Mass. 38) 43, 47 
 
 Brannan v. Kokomo Gravel Co. (115 Ind. 115) 432 
 
 Braut V. City of Lyons (60 Iowa 172) 459 
 
 Braun v. Craven (175 111. 401) ■ • "f 
 
 Bray v. Latham (81 Ga. 640) 4. 156 
 
 Brayles v. Prisock (97 Ga. 643) 4b 
 
 Breckenfelder v. Railway Co. (79 Mich. 560) 49U 
 
 Brehm v. Railway Co. ( 34 Barb. 256 ) ••••■•••••••••••;••; t?! 
 
 Brennan v. Motley Gibson M. & M. Co. (44 Fed. Rep. 795) 371 
 
 Brent v. Kimball (60 111. 2ll) • • • ^, ^ 
 
 Brenzinger v. Bank (10 C. D. O. 775) 515, 516 
 
 Brewster v. Van Liew (119 111. 554) Vo' i oa 
 
 Bridge V. Oshkosh (71 Wis. 363) 82, 1^8 
 
 Bridge Co. v. Mayer (31 O. S. 317) ^fi 
 
 Bridger v. Railroad (Jo. (27 S. Car. 456) • • • • « 
 
 Brignoli V. Chic. & G. E. Rd. Co. (4 Daly, N. Y. 182) 3, 76, 161 
 
 Bristol Mfg. Co. v. Gridley (28 Conn. 201) *•«> 
 
xxvi TABLE OF CASES. 
 
 Page. 
 
 Britton v. Railway Co. (88 N. C. 536) 200 
 
 Britton v. Street Ry. Co. (90 Mich. 153) 51 
 
 Brockway v. Patterson (72 Mich. 122) ■ 378, 491 
 
 Brockett v. New Jersey Stb. Co. (18 Fed. Rep. 156) 512 
 
 Brogles v. Priscock (95 Ga. 643) 46 
 
 Bronson v. Sweetzer (127 Ind. 1) 26, 27 
 
 Brooks V. Railway Co. (156 N. Y. 244) 123, 285 
 
 Brooks V. Schwerin (54 N. Y. 343) 59, 294 
 
 Brooklyn St. Ry. Co. v. Kelly (3 C. D. O. 393) 64, 81, 88, 516 
 
 Broughel v. Southern N. E. T. Co. (72 Conn. 617) 375 
 
 Brown v. Poster (1 N. Y. App. Div. 578) 518 
 
 Brown v. Sullivan (71 Tex. 470) 77, 143, 154, 162 
 
 Brown v. Cummings (7 Allen, Mass., 507) 101, 103 
 
 Brown v. Chic, etc., R. Co. (54 Wis. 342) 
 
 13, 64, 85, 272, 271, 287, 323, 493 
 
 Brown v. Hannibal & St. J. R. Co. (99 Mo. 310) 64, 68, 77, 161 
 
 Brown v. Railway Co. (66 Mo. 58) 278 
 
 Brown v. Railway Co. (76 Iowa 652) 101 
 
 Brown v. Railway Co. (5 Fed. Rep. 499) 188, 200 
 
 Brown v. Memphis, etc., Ry. Co. (55 111. 85) 197 
 
 Brown v. Memphis & J. R. Co. (7 Fed. Rep. 51) 4, 200, 204 
 
 Brown v. Union R. Co. (51 Mo. App. 192) 65, 68 
 
 Brownell v. Railroad Co. (47 Mo: 239) 451, 492 
 
 Bruce v. Beall (99 Tenn. 303) 99 
 
 Brusch V. Railway Co. (52 Minn. 512) 82 
 
 Brunswig v. White (70 Tex. 504) 330, 460 
 
 Bryan v. Acce (27 Ga. 87) 352 
 
 Bryan v. Adler (97 Wis. 124) 197, 198 
 
 Bryant v. Omaha & C. B. Ry., etc., Co. (98 Iowa 483) 104 
 
 Bryer v. Foerster, (41 N. Y. S. 617) 134 
 
 Buck V Street Ry. Co. (46 Mo. App. 555) 339 
 
 Buckley v. Buckley (12 Nev. 423) 5 . 
 
 Buchanan v. Railroad Co. (52 N. J. L. 265) 124, 164, 176, 312, 313 
 
 Bump V. Beltz (23 Wend. 85) 353 
 
 Bundy v. McGinnis (76 Cal. 532) i. . . 211 
 
 Bunting v. Hogsett (139 Pa. St. 363) 113 
 
 Bunyan v. Loftus (90 Iowa 122) 257 
 
 Bunyon v. Metropolitan R. Co. (19 D. C. 76) 30, 31 
 
 Burke v. Railway Co. (4 L. R. J. R. 682) 397 
 
 Burlingame v. Railroad Co. (23 Fed. Rep. 707) 520 
 
 Burns v. Railroad Co. (113 Ind. 169) 439 
 
 Burns v. Railway Co. ( 69 Iowa 450) 433 
 
 Buting V. Hogsett (21 Atl. Rep. 33) 290 
 
 Russian v. Railway Co. (56 Wis. 325) 494 495 
 
 Bussy V. Railway Co. (30 S. E. Rep. 477) .' 4 
 
 Bussy V. Donaldson (4 Ball. U. S. 207) 3, 4 
 
 Byrne v. Gadner (33 La. Ann. 6) 210, 214 
 
 Cain V. Railway Co. (77 Iowa 297) 200 204 
 
 Calder v. Smalley (64 Iowa 219) ".' .' 2^1 
 
 Caldwell v. Brown (53 Pa. St. 453) 266, 373 
 
 Caldwell v. Murphy (1 Duer. 233) .' 487 
 
 Caldwell v. Railroad Co. (41 La. Ann. 624) 517, 519 
 
 C?ildwell V. N. Y. Steamboat Co. (47 N. Y. 282) ' 442 
 
 Calloway v. Layden (47 la. 456) 262 
 
 Cameron v. Bryan (89 Iowa 214) 171 
 
 Cameron v. Vandergriff (Ark.) 63 
 
TABLE OF CASES. xxvii 
 
 Campbell v. Alston (23 S. W. 33) 193 
 
 Campbell v. Brewing Co. (47 N. Y. S. 992) 146 
 
 Campbell v. Fisher (24 S. W. Rep. 661) 93 
 
 Campbell v. McCoy (3 Tex. Civ. App. 298) ...........' 137 138 
 
 Campbell v. Pullman Palace Car Co. (42 Fed. Rep. 484) 158 185 211 
 
 Campbell V. Stillwater (32 Minn. 308) ' ' 13 
 
 Campbell v. Sugar Co. (62 Me. 552) ". gS 67 
 
 Campbell v. York (172 Pa. St. 205) ............' Ill 
 
 Canada Pac. R. Co. v. Robinson (14 Sup. Ct. IQh) .......... .. 395 
 
 Canfield v. Chicago & Rd. Co. (59 Mo. App. 354) 351 352 
 
 Canfield v. Railway Co. (78 Mich. 356) .' 493 
 
 Canning v. Williamstown (1 Cush., Mass., 451) 173, 177, 245 
 
 Cannon v. Railway Co. (14 N. Y. Misc. R. 400) 132 
 
 Carlson v. Railway Co. (21 Ore. 450) Z9i 
 
 Carpenter v. Railway Co. (39 Fed. Rep. 315) .....156 160 
 
 Carples v. Railroad Co. (44 N. Y. S. 670) .' 42 
 
 Carr v. Easton (7 Pa. Co. Ct. R. 403) 59 
 
 Carr v. Traction Co. (10 C. D. O. 296) 17, 354 
 
 Carroll v. Railroad Co. t58 N. Y. 126) ' 498 
 
 Carroll v. Railroad Co. (88 Mo. 239) .!.... 493 
 
 Carsten v. Railroad Co. (44 Minn. 454) 185, 192 200 204 
 
 Carter v. Oliver Oil Co. (34 S. Car. 211) '.....' 512 
 
 Carthage Turnpike Co. v. Andrews (102 Ind. 138) 83, 87, 93 133 
 
 Case V. Mark (2 Ohio 169) .' 13 
 
 Casey v. Rohn-Mayer-C. Co. (12 Bee. O. 597) 437 
 
 Cashion v. Telegraph Co. ( 124 N. C. 459) 218, 238 
 
 Casper v. Prosdame (46 La. Ann. 36) '. 207 
 
 Cassidy v. Angell (12 R. L 447) 485 
 
 Central Mo. Rd. Co. v. Jarrard ( 66 Tex. 560) 61 
 
 Central R. Co. v. Brunson (64 Ga. 475) 326 
 
 Central Ry. Co. v. Crosby (74 Ga. 737) 520 
 
 Central Rd. Co. v. Davidson (76 Fed. Rep. 517) 92, 93 
 
 Central R. Co. v. DeBray (71 Ga. 406) 139 
 
 Central Rd. Co. v. Dottenheim (92 Ga. 425) 107 
 
 Central Rd. Co. v. Moore (61 Ga. 151) 494 
 
 Central Rd. & Banking Co. v. Passmore (90 Ga. 203) 87, 97 
 
 Central Rd. Co. v. Rouse (77 Ga. 393) 487 
 
 Central Ry. Co. v. Serfass (153 111. 379) 87 
 
 Central Rd. Co. v. Thompson (76 Ga. 770) 503 
 
 Central R. & B. Co. v. Wood (51 Ga. 515) 24 
 
 Central Trust Co. v. Railway Co. (34 Fed. Rep. 616) 423 
 
 Chacey v. Fargo (64 N. W. Rep. 932) 25, 28 
 
 Chadron v. Glover (43 Neb. 732) 311 
 
 Chamberlain v. Chandler (3 Mason U. S. 242) 185, 188, 194 
 
 Chapman v. Telegraph Co. (90 Ky. 265) 218, 223, 229 
 
 Chapman v. Telegraph Co. (88 Ga. 763) 172, 175, 230, 247 
 
 Charlebois v. Railroad Co. (91 Mich. 59) 373 
 
 Chartrand v. Railroad Co. (57 Mo. App. 425) 21 
 
 Chase v. Railway Co. (76 Iowa 675) 101, 111 
 
 Chase v. Railroad Co. (77 Me. 62) 485 
 
 Chase v. Telegraph Co. (44 Fed. Rep. 554) 175, 247 
 
 Chattanooga Electric Ry. Co. v. Johnson (97 Tenn. 667) 385 
 
 Chattanooga R. & C. R. Co. v. Clowdis (90 Ga. 258) 377 
 
 Chattanooga R. & C. Rd. Co. v. Liddell (85 Ga. 482) 284, 312 
 
 Cheatham v. Red River Line (56 Fed. Rep. 248) 402 
 
 Chellis V. Chapman (125 N. Y. 214) 254 
 
 Chelsey v. Thompson (137 Mass. 176) 185, 205 
 
xxviii TABLE OF CASES. 
 
 Page. 
 
 Cherokee & P. C. & M. Co. v. Limb (47 Kan. 469) 370, 37i, 389 
 
 Chesapeake & 0. Ry. Co. v. Frlel (19 Ky. L. 152) 136, 148 
 
 Chesapeake & O. Rd. Co. v. Higgins (85 Tenn. 621) 517 
 
 Chesapeake & O. Ry. Co. v. Judd (20 Ky. L. Rep. 1078) 424 
 
 Chesapeake, O. & S. W. Rd. Co. v. Wells (85 Tenn. 613) 200 
 
 Chicago V. Chase (33 111. App. 551) 144 
 
 Chicago V. Crooker (2 111. App. 279) 144 
 
 Chicago V. Bdson (43 111. App. 417) 100, 133 
 
 Chicago V. Fitzgerald (75 111. App. 174) . . . ; 145 
 
 Chicago V. Herz (87 111. 541) 291 
 
 Chicago V. Jones (66 111. 361) 160 
 
 Chicago V. Jones (66 lU. 349) 139, 436 
 
 Chicago V. Langlass (52 111. 256) 64, 160, 364 
 
 Chicago V. McLeon (133 111. 148) 64, 155, 160, 162 
 
 Chicago V. McCuUoch (10 111. App. 459) 487 
 
 Chicago V. O'Brennan (65 III. 160) 489 
 
 Chicago V. O'Keefe (114 111. 222) 370, 371 
 
 Chicago V. Scholten (75 111. 468) 397 
 
 Chicago, etc., R. Co. v. Adamick (33 111. App. 412) 12, 15, 388, 414 
 
 Chicago & A. Rd. Co. v. Adler (28 111. App. 102) 421 
 
 Chicago & A. Rd. Co. v. Becker (84 111. 453) 388, 413 
 
 Chicago & A. R. Co. v. Blaul (175 111. 183) 87, 130 
 
 Chicago & A. R. Co. v. Clausen (70 111. App. 550) 292 
 
 Chicago & A. Ry. Co. v. Goltz (71 111. App. 414) 147 
 
 Chicago & A. R. Co. v. Harrington (77 111. App. 499) 25 
 
 Chicago & A. R. Co. v. Kelley (28 111. App. 655) 417 
 
 Chicago & A. R. Co. v. Swan (70 111. App. 331) : . . . 134 
 
 Chicago, A. & St. L. R. Co. v. Gomes (46 111. App. 255) 75 
 
 Chicago, B. & Q. Rd. Co. v. Dickson (67 111. 122) 310, 311 
 
 Chicago, B. & Q. Rd. Co. v. Gunderson (65 111. App. 638) 417 
 
 Chicago, B. & Q. R. Co. v. Hines (45 111. App. 299) 160, 161, 268 
 
 Chicago, B. & Q. R. Co. v. Johnson (36 111. App. 564) 113 
 
 Chicago, B. & Q. R. Co. v. Johnson (103 111. 512) 488, 489 
 
 Chicago, B. & Q. R. Co. v. Sullivan (21 111. App. 580) 131 
 
 Chicago City R. Co. v. Gillam (27 111. App. 386) 393 
 
 Chicago City Ry. Co. v. Gillam (28 111. App. 386) 417 
 
 Chicago City Ry. Co. v. Leach (80 111. App. 354) 87, 134 
 
 Chicago City Ry. Co. v. Menely (79 111. 679) 24 
 
 Chicago City R. Co. v. Mumford (97 i.11. 560) 144 
 
 Chicago City R. Co. v. Taylor (68 111. App. 613) • 134 
 
 Chicago, etc.. Coal Co. v. Peterson (39 111. App. 114) 496 
 
 Chicago & C. Rd. Co. v. Bryan (90 111. 126) 354 
 
 Chicago & C. Rd. Co. v. Doyle (18 Kan. 58) 495 
 
 Chicago & C. R. Co. v. Manning (23 Neb. 552) 443 
 
 Chicago & C. R. Co. v. Swett (45 III. 197) 379 
 
 Chicago & Bast. Ry. Co. v. Branyan (10 Ind. App. 570) 388, 414 
 
 Chicago & B. R. Co. v. Meech (163 lU. 305) 92 
 
 Chicago & B. R. Co. v. Meech (59 111. App. 69) 87 
 
 Chicago & B. I. R. Co. v. O'Connor (119 111. 586) 433 
 
 Chicago & Gd. T. Ry. Co. v. Spurney (69 111. App. 549) 172, 268 
 
 Chicago, M. & St. P. R. Co. v. Harper (26 111. App. 621) 127 
 
 Chicago, M. & St. Paul Ry. Co. v. Wilson (35 111. App. 346) 322, 412 
 
 Chicago & N. E. R. Co. v. Miller (46 Mich. 532) 433 
 
 Chicago & N. W. Ry. Co. v. Bayfield (37 Mich. 215) ... 107, 422, 490 
 
 Chicago & N. W. Rd. Co. v. Button (68 111. 409) 310 
 
 Chicago & N. W. Ry. Co. v. Des Lauriers (40 111. App. 654) . . . 388, 412 
 
TABLE OF CASES. 
 
 Chicago & N. W. Ry. Co. v. Snyder (117 111 317) ^tTo 
 
 S^i2!!° ^ ^; Z: ^i- 9p- ^- whitton (13 Waif 270) ■:::::::;:::::■• 384 
 
 11- 185) igi'VoO, 202 
 
 Rep. 1084) 164 
 
 Chicago & N W. R. Co. y. Williams (55 111. 185) igs' 200 In? 
 
 Chicago. R. I. & T R. Co. y. Hitt (31 S. W. Rep lOsi)" ' " ' 164 
 
 Chicago & R. I. Rd. Co. y. Morris (26 111. 400) . fnt 
 
 Chicago, R. I. & p. R. Co. V. Caulfleld (63 Fed " " ' ' ' 
 
 Chicago & R. I. R. Co. v. Payzant (87 111. 125) 
 
 Chicago, R I. & PR. Co. y. Caulfleld ( 63' Fed. Rep. '396) 172 
 
 Chicago & R. I. R. Co. y. Payzant (87 111 125) H 
 
 Chicago, P. & St. L. Rd. Co. y. Lewis (48 111. App '274) 67 ll 
 
 Chicago, St. L. & P. R. Co. y. Butler (10 Ind. App 244) ' qr 
 
 Chicago, St. L. & P. R. Co. y. Spilker (134 Ind. 380) Si 
 
 Chicago. St. P. & M. O. Ry. Co. y. Belliwith (83 Fed. Rep '437) ' ' 'sOS 51^ 
 Chicago, etc., R. Co. y. Becker (128 111. 545) ..... . ^' ' ' ' 455' ll^ 
 
 Chicago, etc., Rd. Co. y. Blank (24 111. App. 438) aV-i 
 
 Chicago, etc., R. Co. y. Chisholm (79 111. 584) VsV ona 
 
 Chicago, etc., Rd. Co. y. Clark (108 111. 113) ' Tii 
 
 Chicago, etc., Rd. Co. y. Coss (73 111. 394) .... 431 
 
 Chicago, etc., Rd. Co. y. Clausen (73 111 100) 4G4 
 
 Chicago, etc., Rd. Co. v. Fisher (38 111. App. 33) 64 
 
 Chicago, etc., R. Co. v. Flagg (43 111. 364) 155 185 
 
 Chicago, etc., Rd. Co. y. Flexman (103 111. 546) ... I93 
 
 Chicago, etc., Ry. Co. y. Henry (7 111. App. 322) 487 
 
 Chicago, etc., R. Co. y. Holland (122 111. 461) 21 126 
 
 Chicago, etc., R. Co. y. Holland (18 111. App. 418) ' 131 
 
 Chicago, etc., Ry. Co. y. Howard (6 111. App. 569) ......... 487 492 
 
 Chicago, etc., R. Co. v. Hunerbzerg (16 111. App. 387) ... . '287 
 
 Chicago, etc., R. Co. y. Jones (66 111. 349) 21 
 
 Chicago, etc., R. Co. v. Langlass (66 111. 361) 21 
 
 Chicago, etc., R. Co. v. McKean (40 111. 218) 13 
 
 Chicago, etc., R. Co. v. Morando (93 111. 302) 487 489 
 
 Chicago, etc. R. Co. v. O'Brennan (65 111. 162) 21, 41 
 
 Chicago, etc., Rd. Co. y. Posten (53 Pac. Rep. 465) '57 
 
 Chicago, etc., R. Co. y. Ptacek (62 111. App. 375) ". 425 
 
 Chicago Rd. Co. y. Scurr (59 Miss. 456) 350 
 
 Chicago, etc., Rd. Co. y. Shannon (43 111. 438) 516 
 
 Chicago, etc., Rd. Co. y. Stormer (26 Neb. 630) , 88 
 
 Chicago, etc., Rd. Co. y. Warner (108 111. 538) 64, 77, 459 
 
 Chicago, etc., R. Co. y. Wilson (63 111. 167) 21 
 
 Chicago, etc., Rd. Co. y. Williamson (55 111. 185) 185 
 
 Chielinsky y. Hoopes (40 Atl. Rep. 1127) 3, 15 
 
 Chilton V. City of St. Joseph (44 S. W. Rep. 766) 5, B9 
 
 Chilton y. Railway Co. (114 Mo. 88) 200 
 
 Chipman y. Union Pac. R. Co. (12 Utah 68) 148, 339 
 
 Choppin V. Railroad Co. (17 La. Ann. 19) » 12, 513 
 
 Christian y. Minneapolis (69 Minn. 278) 322 
 
 Christie v. Railway Co. (39 S. W. Rep. 638) 53 
 
 Christian y. Irwin (125 111. 619; 17 N. E. Rep. 707) 15, 508, 513 
 
 Church y. Milwaukee (31 Wis. 512) 479 
 
 Church y. Railway Co. (21 S. C. 495) 432 
 
 Cincinnati y. Eyans (5 O. S. 594) 121 
 
 C. H. & D. Ry. Co. v. Boyer (10 C. D. O. 199) 20, 41, 64, 88, 144 
 
 Cincinnati, H. & I. R. Co. y. Baton (94 Ind. 474) 287 
 
 Cincinnati, H. & I. R. Co. v. Claire (6 Ind. App. 390) 21 
 
 Cincinnati, H. & D. Ry. Co. y. Hedges (8 C. D. O. 265) 509 
 
 C, H. & D. Ry. Co. v. Murphy (9 C. D. O. 703) 433 
 
 C, H. V. & T. Ry. Co. y. Shannon (2 C. D. O. 644) 88, 106, 520 
 
 Cincinnati, etc., R. Co. y. Sampson (97 Ky. 65) 379 
 
XXX TABLE , OF CASES. 
 
 Page. 
 
 Cincinnati Qmnibus Co. v. Kuhnell (9 Re. O. 197) 20, 25, 26 
 
 Citizens Ry. Co. v. Washington (58 S. W. Rep. 1042) 415 
 
 Cincinnati St. Ry. Co. v. Altemeier (62 0. S. 10) 327, 328 
 
 Citizens St. Ry. Co. v. Hobbs (43 N. B. Rep. 479) 34 
 
 Citizens St. Ry. Co. v. Steen (42 Ark. 421) 15 
 
 Citizens St. Ry. Co. v. Twinane (121 Ind. 375) 44, 59, 294, 309 
 
 Clifford V. Allmen (84 Cal. 527) 371 
 
 Clanln v. Fagln (124 Ind. 304) 141 
 
 Clapp V. Railroad Co. (19 Barb. 461) 517 
 
 Clare v. Sacramento E. P. & L. Co. (122 Cal. 504) 87, 129 
 
 Clark V. Chicago & A. R. Co. (127 Mo. 197) 130 
 
 Clark V. Harlln (1 C. S. C. 418) 314 
 
 Ciark V. Hill (69 Mo. App. 541) 314 
 
 Clark v. Manchester (62 N. H. 577) 399, 401 
 
 Clark V. Railway Co. (15 Fed. Rep. 588) 433, 434 
 
 Clark V. Winchester (64 N. H. 471) 161 
 
 Clarke v. Wescott (37 N. Y. S. 1111) 74 
 
 Claybrook v. Railway Co. (19 Mo. App. 432) 192 
 
 Claxton V. Railroad Co. (13 Bush, Ky., 636) 436 
 
 Clifiord V. Railroad Co. (9 Colo. 333) 85 
 
 Cline V. Railroad Co. (42 La. Ann. 35) 422 
 
 Clinton v. Laning (61 Mich. 355) 257, 260, 263 
 
 Cleary v. Railway Co. (76 Cal. 240) 327, 329, 395 
 
 Cleghorn v. Railroad Co. (56 N. Y. 44) 13, 353 
 
 Clem V. Holmes (33 Gratt, Va., 722) '215 
 
 Cleyeland v. Railroad Co. (73 Ga. 793) 423 
 
 Cleveland v. Steamboat Co. (125 N. Y. 299) 291 
 
 Cleveland, etc., Rd. Co. v. Ball (5 O. S. 568) 79 
 
 Cleveland St. Ry. Co. v. Ebert (10 C. D. O. 291) 161, 515 
 
 Cleveland C. & C. R. Co. v. Crawford (24 O. S. 631) 503, 504, 512 
 
 Cleveland, C. & C. R. Co. v. Terry (8 0. S. 570) 318 
 
 Cleveland, etc., R. Co. v. Gray (148 Ind 266) 93 
 
 Cleveland, C. & I. R. Co. v. Newell (104 Ind. 264) 
 
 41, 71, 81, 82, 104, 458, 510 
 
 Cleveland, C. C. & I. Rd. Co. v. Prewitt (134 Ind. 264) 81 
 
 Cleveland, etc., R. Co. v. Rowan (66 Pa. St. 393) 30, 365, 402 
 
 Cleveland & P. R. Co. v. Sutherland (19 O. S. 151) 44, 61, 491 
 
 City of Bradford v. Downs (126 Pa. St. 622) 457 
 
 City of Birmingham v. Lewis (92 Ala. 352) 63 
 
 City of Bloomington v. Chamberlain (104 111. 268) 53 
 
 City of Bloomington v. Osterle (139 111. 120) 83 
 
 City of Carlisle, The f39 Fed. Rep. 807) 410, 411 
 
 City of Chicago v. Edson (4^ 111. App. 417) 104 
 
 City of Chicago v. Heston (83 111. 204) 413 
 
 City of Chicago v. Kelly (69 111. 475) 364 
 
 City of Chicago v. Kimball (18 Ill.^App. 240) 420 
 
 City of Chicago v. Taylor (170 111. 49) 163 
 
 City of Columbus v. Sims (94 Ga. 483) 87, 107, 111, 118 
 
 City of Decatur v. Stoops (52 N. E. Rep. 623) 87, 141 
 
 City of Denver v. Dunsmore (7 Colo. 328) 516 
 
 City of Denver v. Sherrett (88 Fed. Rep. 226) 108 
 
 City of East St. Louis v. Daugherty (74 111. App. 490) 128 
 
 City of Friend v. Ingersoll (39 Neb. 717) Ill, 112 
 
 City of Freeport v. Isbell (93 111. 381) 458, 475 
 
 City of Galesburg v. Benedict (22 111. App. Ill) 469 
 
 City of Honey Grove v. Lamaster (50 S. W. Rep. 1053) 113 
 
 City of Jollet v. Conway (119 111. 489) 455 
 
' TABLE OF CASES. xxxi 
 
 City of Joliet v. Weston (22 111. App. 225) 412 
 
 City of Huntington v. Burke (21 Ind. App. 655) ... Ill 
 
 City of Indianapolis v. Gaston (58 Ind. 224) 26 87 
 
 City of Montreal v. Labeele (14 Can. Sp. Ct. 741) 385 
 
 City of Oklahoma City v. Walsh (3 Okla. 288) 88 
 
 City of Ottawa v. Sweely (65 111. 434) 515 
 
 City of Parsons v. Lindsay (26 Kan. 426) 364 
 
 City of Pueblo v. Griffin (10 Colo. 366) ... 62 
 
 City of Ripon v. Bittel (30 Wis. 614) 53 
 
 City of Sandwich v. Dolan (141 111. 430) 124 
 
 City of Toledo v. Higgins ( 7 C. D. O. 29) 41 
 
 City of Topeka v. Bradshaw (5 Kan. App. 879) ....'...... 145 
 
 City of Vicksburg v. McLain (67 Miss. 4) 388 
 
 City of Wabash v. Carver (129 111. 552) 421 
 
 City of Wichita v. Stallings (54 Pac. Rep. 689) 87 
 
 Coal Co. V. Nee (13 Atl. Rep. 841) [,'//_ 327 
 
 Coal & Car Co. v. Norman (49 O. S. 598) 435, 436, 444, 445 461 
 
 Coal & Min. Co. v. Clay (51 O. S. 542) .' 433 
 
 Coast Line R. Co. v. Boston ( 83 Ga. 387) .....:.... 140 
 
 Cobb V. Railway Co. (149 Mo. 609) ' 'ss^ 126 
 
 Cody V. Railroad Co. (151 Mass 462) ' 512 
 
 Cogswell V. Railway Co. ( 5 Wash. St. 46) .65 
 
 Cohen v. Railroad Co. (14 Mo. 376) 21, 69 
 
 Cointement v. Cropper (41 La. Ann. 303) '520 
 
 Commissioners v. Clark (94 U. S. 278) 505 
 
 Commonwealth v. Power (7 Mete. 596) -185, 188 
 
 Colby V. Wiscasset (61 Me. 304) ). . ' 87 
 
 Coleman v. Allen ( 79 Ga. 637) 213 
 
 Coleman v. Railway Co. (106 Mass. 160) 487 
 
 Collins V. Council Bluffs (32 Iowa 324) 34, 36, 69, 87, 351 
 
 Collins V. Dodge (37 Minn. 503) 49 
 
 Collins V Railroad Co. (9 Heisk., Tenn., 841) 400 
 
 Collins V. Tex. & Pac. Ry. Co. (39 S. W. Rep. 643) 191, 192 
 
 Collins V. Waters (54 111. 485) 81, 83 
 
 Colorado Mid. Rd. Co. v. O'Brien (16 Colo. 219) 144, 146, 513 
 
 Colter V. Street Ry. Co. (9 C. D. O. 865) 512 
 
 Columbia, The (27 Fed. Rep. 704) 410 
 
 Columbia & P. S. R. Co. v. Hawthorn (3 Wash. T. 353) 131 
 
 Columbus V. Strassner (138 Ind. 301) 28 
 
 Corliss V. Railroad Co. (63 N. H. 404) . . 31, 78, 376, 385, 399, 402, 404, 408 
 
 Corcoran v. Railway Co. (126 N. Y. 673) 506 
 
 Corcoran v. Railway Co. (19 Hun, N. Y., 368) 512 
 
 Corcoran v. Railway Co. (133 Mass. 507) 402 
 
 Corsair, The (145 U. S. 335) 411 
 
 Corts V. District of Columbia (7 Mackey, D. C, 598) 51 
 
 Conant v. Griffen (48 111. 410) 374 
 
 Conkling v. Tice (1 N. Y. S. 803) 417 
 
 Connell v. Telegraph Co. (116 Mo. 34) 162, 230, 239 
 
 Conner v. Street Ry. Co. (105 Ind. 62) 512 
 
 Connor v. Pioneer F. P. C. Co. (29 Fed. Rep. 29) 93, 160, 436, 461 
 
 Connolly v. Railway Co. (41 La. Ann. 57) 185, 195 
 
 Conn. Ins. Co. v. Carnahan (10 C. D. O. 186) 515 
 
 Conn. Mut. L. I. Co. v. Rd. Co. (25 Conn. 265) 367 
 
 Conrad v. Pacific Ins. Co. (31 U. S. 268) 363 
 
 Conroy v. Oregon Const. Co. (23 Fed. Rep. 71) 431, 432 
 
 Conroy v. Iron Works (75 Mo. 652) 490 
 
 Consolidated Coal Co. v. Haenni (146 111. 614) 41, 64, 69, 87 
 
xxxii TABLE OF CASES. 
 
 Page. 
 
 Consolidated Coal Co. v. Scheiber (65 111. App. 304) 25 
 
 Consolidated Ice Machine Co. v. Keifer (26 111. App. 466) 413 
 
 Consolidated Traction Co. v. Hone (59 N. J. L. 275) 29, 31, 403 
 
 Consolidated Traction Co. v. Lambertson (59 N. J. L. 297) 176, 177 
 
 Coolridge v. Neal (129 Mass. 146) 254 
 
 Cook V. Railroad Co. (19 Mo. App. 329) 5 
 
 Cooke V. Clay St. Hill Co. (60 Cal. 604) ... 389, 395, 417, 419, 488, 490 
 
 Cooke V. N. Y. C. & H. R. R. Co. (10 Hun, N. Y., 426) 404 
 
 Cooper V. MuUins (30 Ga. 146) 64, 245 
 
 Cooper V. Railroad Co. (23 Wis. 668) 476 
 
 Cooper V. Railway Co. (54 Minn. 379) 88 
 
 Cooper V. Railway Co. (66 Mich. 261) 327, 330, 388, 413 
 
 Cooper V. Sun Printing, etc., Assn. (57 Fed. Rep. 566)- 351 
 
 Cottingham v. Weeks (54 Ga. 275) 494 
 
 Couch V. Watson Coal Co. (46 Iowa 17) 476 
 
 Council V. Railway Co. (1 Int. Com. R. 719) 200 
 
 County Commrs. v. Duckett (20 Md. 468) ■. 6, 7 
 
 County of Howard v. Legg (110 Ind. 479) 370 
 
 Covington St. Ry. Co. v. Packer (9 Bush, Ky., 455) 266, 327, 329 
 
 Cox V. Providence Ger. Co. (17 ^i. I. 199) 432 
 
 Crane v. Railway Co. (87 Mo. 588) - 446 
 
 Cramer v. Burlington (42 Iowa 315) 491 
 
 Cramer v. Danielson (99 Mich. 531) 260 
 
 Crank v. Street Ry. Co. (6 N. Y. S. 229) 290 
 
 Crank v. Railway Co. ( 53 Hun 425) 44 
 
 Crawford v. Telegraph Co. (47 Fed. Rep. 544) 160, 162, 175, 247 
 
 Creed v. nartman (29 N. Y. 591) 457 
 
 Cregin v. Railroad Co. (18 Hun 368) 59 
 
 Cregin v. Railroad Co. (75 N. Y. 192) 21, 28, 294, 297, 298, 368 
 
 Crete City v. Childs (11 Neb. 252) 34 
 
 Crew V. Railroad Co. (20 Fed. Rep. 87) 4, 15, 41, 124 
 
 Crlbbett v. Mathers (3 Dec, Re. 322) ' 5i6 
 
 Cribbs v. Yore (119 Mich. 237) 209 
 
 Croaker v. Railroad Co. (36 Wis. 657) ... 5, 13, 154, 184, 185, 188, 
 
 189, 200, 20i, 202 204 
 
 Cross V. Elmira (33 N. Y. S.) 322 
 
 Grouse v. Chic. & N. W. Ry. Co. (7 N. W. Rep. 446; 102 Wis. 196) 
 
 27, 28, 111, 114 
 
 Cummerford v. Railway Co. (8 N. Y. Misc. 599) 148 
 
 Cummlngs v. Ry. Co. (104 N. Y. 699) 75 
 
 Cummings v. Railroad Co. (109 N. Y. 95) 29, 31, 330, 387, 388 
 
 Cunningham v. Railway Co. (4 Utah 206) '.....' 464 
 
 Cunningham v. Railroad Co. (43 Atl. Rep. 1047) 479 
 
 Cunningham v. Railroad Co. (102 Ind. 478) 26 
 
 Curtis V. Rochester, etc., R. Co. (18 N. Y. 534) . . 4, 71 88 158 
 
 Curtis V. Sioux City H. P. R. Co. (87 Iowa 318) ' '235 
 
 Cutler V. Smith (57 111. 252) 17^ 352 
 
 Daggett V. Wallace (75 Tex. 352) 250, 252, 254 
 
 Dailey v. Coons ( 64 Ind. 545 ) .' ' 501 
 
 Dailey v. Railway So. (32 Conn. 356) 492 
 
 Daley v. American Printing Co., (105 Mass. 77) 443 
 
 Dallas & Gr. N. Rd. Co. v. Able (72 Tex. 150) 93 
 
 Dalton V. Railroad Co. (4 C. B. N. S. 296) f. 30 403 488 
 
 Dalzell V. Railway Co. (119 N. Y. 626) '.....' 88 
 
 Daniels v. Greggs (28 Mich. 32) i 497 
 
 D. S. Gregory (2 Ben. 226) .'.".'." 26 
 
TABLE OF CASES. xxxiii 
 
 Page. 
 
 David V. S. W. R. R. Co. (41 Ga. 223) 379 
 
 Davis V. Guarnieri (45 O. S. 470) . . 310, 322, 369, 370, 384, 390, 437, 
 
 438, 439, 460 
 
 Davidson v. Abbott (52 Vt. 570; 36 Am. Rep. 767) 216 
 
 Davidson v. Railway Co. (44 Fed. Rep. 476) .4, 21, 41, 42, 51, 65, 67, 86, 
 
 156, 160, 508, 510 
 
 Davidson v. Railway Co. (34 Minn. 51) 506 
 
 Davidson v. Southern Pac. Ry. Co. (44 Fed. Rep. 481) 124 
 
 Davis V. Railroad Co. (60 Ga. 329) 15, 329 
 
 Davis V. Railway Co. (20 Mich. 105) 476, 485 
 
 Davis V. St. Louis, I. M. & S. R. R. Co. (53 Ark. 117; 7 L. R. A. 283) 
 
 29, 31, 326, 408, 512 
 
 Davis V. Somerville (128 Mass. 594; 35 Am. Rep. 399) 498 
 
 Davis V. Standish (26 Hun. N. Y. 608) Ill 
 
 Dawson v. Railroad Co. (11 Am. & Eng. Rd. Cas. 134) 350 
 
 Davis V. Railway Co., (8 Ore. 172) 491 
 
 Davis V. McKnight (146 Pa. St. 610; 23 Atl. Rep. 320) 491 
 
 Day V. Owen (5 Mich. 520) 185, 194, 200 
 
 Day V. Street Ry. Co. (135 Mass. 113; 44 Am. Rep. 447) 498 
 
 Day V. Woodworth (54 U. S.; 13 How., 363) 17 
 
 Dayharsh v. Railway Co. (103 Mo. 570; 23 Am. St. Rep. 900) 97, 489 
 
 Deans v. Railroad Co. (107 N. C. 686) 506, 512 
 
 Decatur v. Stoops (52 N. E. Rep. 623) 141 
 
 Deep Mining, etc., Co. v. Fitzgerald (21 Colo. 533) 11, 12, 15, 68 
 
 Delsen v. Railway Co. (43 Minn. 454) Ill 
 
 Delaware, L. & W. Rd. co. v. Converse (139 XI. S. 469) . . 503, 505, 511 
 
 Delaware & L. W., etc., R. Co. v. Taffey (38 N. J. L. 525) 503 
 
 Delaware, etc., R. R. Co. v. Jones (128 Pa. St. 308; 18 Atl. "Rep. 330) 
 
 297, 307, 384 
 
 Delaware, etc., R. Co. v. Walsh (47 N. J. L. 548) 192 
 
 DeMay v. Roberts (46 Mich. 160) 185 
 
 Demarest v. Little (47 N. J. L. 28) 309 
 
 Denman v. Johnson (85 Mich. 387) 112 
 
 Denmann v. Railway Co. (30 N. Y. S. 926) 161 
 
 Dennick v. Railway Co. (103 U. S. 11) 409, 439, 440 
 
 Denton v. Ordway (108 Iowa 487; 79 N. W. Rep. 271) 311 
 
 Denver v. Sherrett (88 Fed. Rep. 226) lOs 
 
 Denver River Co. v. Lorentzen (79 Fed. ReP- 291) • • • J^ 
 
 Denver & R. G. Ry. Co. v. Harris (122 U. S. 597) 123, 357 
 
 Benver & R. G. R. Co. v. Roller (100 Fed. Rep. 738) 446, 454, 479 
 
 Deppe V. Railroad Co. (38 Iowa 592) bi 
 
 Derry v. Flitner (118 Mass. 131) ■ • • • * 
 
 Derry v Lowry (6 Phil. Pa. 30) V V • '. , t ' 
 
 SeLer V. Brewing Co. (119 Mich. 482; 77 N. W. Rep. 948; 44 U ^^ 
 R. A. 500) ■_■ ■ ■ ' liLl ',107 
 
 Dibble V. Railway' Co. (25 Barb.^N^ Y., 183)^ . 497 
 
 Dickens v 
 
 Dickinson v. Railway Co. (33 L. X Ex. 91) ^^^ 
 
 Dickens' v.'Raiiway'Co." (1 Abb. N. Y. App. 504) 503 
 
 Dickson v. Hollister (123 Pa. St. 421)_ ■--■■ ^^^ 
 
 286 
 
 Diemus v. Hennessy (62 111. App. 391) 
 
 Dillingham v. Anthony (,73^TeX•JJ = i^ ■■;■:::::::::: 382 
 
 Dlmmey v. Railway Co. (27 W. Va ") . ■..■■■ ■■■ --^ ^» 
 
 District of Columbia v. Woodbury (136 U. S 450) ... 86, 94, 96, 455, 4bl 
 
 Dobson V. Philadelphia (7 Pa D.st R^ 321) • • ■ |«^ 
 
 Doe V. Roe (82 Maine 503; 8 L. R. A. 833) ^J 
 
 Doflard V. Roberts (130 N. Y. 269; 14 L^ VpII ^S^i 2^8 
 
 Donahoo v. Scott (Tex. Civ. App.; 30 S. W. Rep. 385) 268 
 
xxxiv TABLR OF CASES. 
 
 Page. 
 
 Donaldson v. Railway Co. (18 Iowa 280; 87 Am. Dec. 391) Ill 
 
 Donnell v. Sandford (11 La. Ann. 645) 63, 155 
 
 Donnelly v. Hufschmldt (79 Cal. 74) 25 
 
 Dorman v. Railroad Co. (11 N. Y. S. 334) 390, 394, 400 
 
 Dorrah v. Railway Co. (65 Miss. 14; 7 Am. St. Rep. 629) 
 
 161, 162, 172, 342 
 
 Doty V. Postal (87 Mich. 143; 40 N. W. Rep. 534) 491 
 
 Dougal V. Coward (95 N. C. 368) 205 
 
 Dougherty v. Railway Co. (97 Mo. 647) 93 
 
 Downey v. Railway Co. (28 W. Va. 732) 355 
 
 Doyle V. Railroad Co. (118 Mass. 195; 19 Am. R. 431) 498 
 
 Drain v. Railway Co. (86 Mo. 574) 88 
 
 Drake v. Keilly (93 Pa. St. 492) 13, 193, 271, 272, 286 
 
 Draper v. Baker (61 Wis. 450; 50 Am. Rep. 143) 185, 186, 348, 488 
 
 Drew V. Railroad Co. (26 -N. Y. 49) 29 
 
 Drew V. Railroad Co. 1 3 Keyes, N. Y. 429) 13 
 
 Driess v. Frederick (73 Tex. 461) 4, 286, 486, 489 
 
 Drlnkwater v. Dinsmore (80 N. Y. 390; 36 Am. Rep. 624) 
 
 26, 27, 28, 48, 61 
 
 Duffles V. Duffies (76 Wis. 374; 8 L. R. A. 420) 314 
 
 Dufort V. Abodie (23 La. Ann. 280) 185 
 
 Delaney v. Mo. Pac. Rd. Co. (21 Mo. App. 597) 385 
 
 Dunlap V. The Reliance (2 Fed. Rep. 249) 442 
 
 Dunlap V. Railroad Co. (130 U. S. 649) 512 
 
 Dunn V. Railroad Co. (20 Phil., Pa. 258) 65 
 
 Dunhene v. Ohio L. Ins. & Tr. Co. (1 Dis. 257; 12 Re. 608) . . . 392, 440 
 
 Durkee v. Railroad Co. (69 Cal. 533) 454 
 
 Durkee v. Railway Co. (56 Cal. 288) 266, 327, 329 
 
 Duryee v. Mayor, etc. (96 N. Y. 477) 463 
 
 Duval V. Hunt (34 Florida 85) 388 
 
 Duvall V. Fuhrman (2 C. D. O. 174) 254, 359 
 
 Dwinelle v. Railway Co. (120 N. Y. 117; 17 Am. St. Rep. 611) 
 
 185, 192, 193, 512 
 Dwyer v. Chicago, etc., R. R. Co. (84 Iowa 478) 40O 
 
 Eagle Packet Co v. DefCries (94 111. 598) 442, 443, 495 
 
 Early v. Railway Co. (66 Mich. 349) 485 
 
 East Line & R. R. Co. v. Brinker (68 Tex. 500) 433 
 
 Bast Line & R. R. Co. v. Smith (65 Tex. 167) 422 
 
 East St. Louis Ry. Co. v. Allen (54 111. App. 27) 452 
 
 Bast St. Louis & C. Rd. Co. v. Frazier (26 111. App. 427) 64 
 
 East Tenn. V. & G. R. Co. v. Lockhart (79 Ala. 315) 163 
 
 East Tenn. V. & G. Rd. Co. v. Markens (88 Ga. 60; 14 L. R. A. 281) . 509 
 East Tenn., V. & G. R. R. Co. v. Mitchell (11 Heisk., Tenn., 400) ... 400 
 East Tenn. V. & G. R. Co. v. White (5 Lea, Tenn., 540; 8 Am. & Eng. 
 
 Rd. Cases 55 ; approved in 12 Lea, Tenn. 46) 95 
 
 Eastern Tenn. Rd. Co. v. Kennedy (83 Ala. 462; 3 Am. St. Rep. 755) 
 
 439 
 
 Eckerd v. Railroad Co. (70 la. 353) 22 
 
 Eddy V. Wallace (49 Fed. Rep. 343) 69 
 
 Eden v. Lexington, etc., Rd. Co. (14 B. Mon., Ky.,TS5) 367 
 
 Edens v. Hannibal, etc., Rd. Co. ( 72 Mo. 212) 433 
 
 Edmundson v. Pollock (3 C. D. O. 92; 5 O. C. C. R. 185) ......... 354 
 
 Eginiore v. Union Co. (84 N. W. Rep. 758) 415 
 
 Bhrgott V. Mayor (96 N. Y. 264; 24 Am. Rep. 622) ........... 
 
 16, 17, 41, 49, 51, 55, 58, 85, 94, 130, 272,' 279," 289, 461 
 
TABLE OF CASES. xxxv 
 
 ^, „ Page. 
 
 Ehrman v Railway Co. (131 N. Y. 576; 14 N. Y. Supp. 336) . 145 
 
 Eifingerv. Railway Co. (34 N. Y. Supp. 239) ' 135 
 
 Eiven v. Chic. & N. W. R. R. Co. (38 Wis. 613) 33I 
 
 Eldridge v. Atlas S. S. Co. (11 N. Y. Supp. 468) 137 
 
 Elfers V. Woolley (116 N. Y. 294) 466 
 
 Eli V. Railroad Co. (1 N. Dak. 336) 462 
 
 Elkhart v. Ritter (66 Ind. 136) 455 
 
 Elkins V. McKean ( 79 Pa. St. 493 ) ! ! ! ! 454 
 
 Elledge v. Railway Co. (100 Cal. 282) 452 
 
 Elliott V. Newport St. Ry. Co. (18 R. I. 707; 23 L. R. A 208- 31 Atl 
 
 Rep. 694) gg 
 
 Elliott V. Railroad Co. (5 Dak. 523; 3 L. R. A. 365) 485 
 
 Elliott V. VanBuren (33 Mich. 49; 20 Am. Rep. 668) .. . 458 
 
 Ellis V. Railroad Co. (95 N. Y. 546) '.[ 506 
 
 Ellis V. Telegraph Co. (13 Allen, Mass., 227) 221 
 
 Elwood V. Telegraph Co. (45 N. Y. 549; 6 Am. Rep. 140) 221 
 
 Embrey v. Owen ( 6 Exch. 353) 6 
 
 Emery v. Boston, etc., Rd. Co. (36 Atl. Rep. 367) 22 
 
 Emery v. Railroad Co. (109 N. C. 589) 512 
 
 Engler v. Telegraph Co. (69 Fed. Rep. 185) 25, 148 
 
 English V Railway Co. (13 Utah 407; 47 Pac. 47; 13 L. R. A. 155) 
 
 374, 416 
 
 Entwhistle v. Feighner (60 Mo. 215) 454 
 
 Ephland v. Railroad Co. (57 Mo. App. 147) 48, 61 
 
 Erie Telegraph, etc., Co. v. Grimes (82 Tex. 89) 228 
 
 Erie Railroad Co. v. Winter (143 U. S. 60) 514 
 
 Ernstine Koch v. The Oriflamme (3 Sawy., U. S. Cir. Ct. 397) 170 
 
 Erwin v. Neversink Steamboat Co. (23 Hun 578) 463 
 
 Etchberry v. Levielle (2 Hilt, N. Y. 40) 6 
 
 Etherington v. Railroad Co. (88 N. Y. 641) 306 
 
 Evans v. American Iron & T. Co. (C. C. N! D. 0.; 42 Fed. Rep. 519) . 128 
 
 Evans v. Delk (9 S. W. Rep. 550) 143 
 
 Evans v. Railway Co. (88 Mich. 442) 512 
 
 Evans v. Railway Co. (11 Mo. App. 463) 354 
 
 Evansville & T. H. R. Co. v. Crist (116 Ind. 446; 9 Am. St. Rep. 865) 
 
 87, 432, 444, 458 
 Evansville & T. H. R. Co. v. Guyton (115 Ind. 450; 117 N. E. Rep. 
 
 101) 77 
 
 Evansville & T. H. R. Co. v. Holcomb (9 Ind. App. 168; 36 N. E. 
 
 39) 32 
 
 Evanswich v. Railroad Co. (57 Tex. 123) 326 
 
 Ex parte Detroit River Ferry Co. (12 Fed. Rep. 524) 411 
 
 Ex parte Fisk (113 U. S. 713, 717) 468 
 
 Ex parte Plessy (45 La. Ann. 80; 18 L. R. A. 639) 200 
 
 Ewen V. Railroad Co. (38 Wis. 613) 329, 389, 400, 488, 490 
 
 Ewing V. Railroad Co. (72 111. 25) 445 
 
 Ewing V. Railroad Co. (147 Pa. St. 40; 14 L. R. A. 666) ... .164, 165, 172 
 
 Fair v. Railroad Co. (21 L. T. 326) 97 
 
 Fairchild v. California Stage Co. (13 Cal. 599) 160 
 
 Farmer v. Newburgh (109 N. Y. 301) ■ 69 
 
 Parrand v. Aldrich (85 Mich. 593; 48 N. W. Rep. 620) 205, 208 
 
 Farwell v. Warren (70 111. 28) 351, 352 
 
 Pay V. Guinon (131 Mass. 31) 214 
 
 Fay V. Harlon (128 Mass. 244; 35 Am. Rep. 372) 82 
 
 Fay V. Parker (53 N. H. 342; 16 Am. Rep. 270) 3 
 
 Fay V. Swann (44 Mich. 544) 185, 189, 210, 211 
 
xxxvi TABLE OF CASES. 
 
 Page. 
 Feeney v. Railroad Co. (116 N. Y. 375; 5 L. R. A. 544; 22 N. E. Rep. 
 
 402) 24, 27, 28, 41, 69, 71, 88 
 
 Fehr v. Railway Co. (49 N. Y. 87) 503 
 
 Feinstein v Jacobs (37 ^. Y. Supp. 345) 54, 88, 92 
 
 Fell V. Railway Co. (49 Fed. Rep. 248) 85, 156, 157, 354 
 
 Fenelon v. Butts (53 Wis. 344) 185 
 
 Fenstermaker v. Tribune Pub. Co. (12 Utah 439; 35 L. R. A. 611) . . 207 
 Fergason v. Gies (82 Mich. 358; 21 Am. St. Rep. 576; 9 L. R. A. 589) 
 
 5, 197 
 Ferguson v. Gies (82 Mich. 358; 21 Am. St. Rep. 576; 9 L. R. A. 
 Ferguson v. Railway Co. (63 Wis. 165; 23 N. W. Rep. 123; 19 Am. & 
 
 Bng. R. R. Cases 285) 149, 513 
 
 Pick V. Railroad Co. (68 Wis. 469) 13 
 
 Fife V. Oshkosh (89 Wis. 540; 62 N. W. Rep. 541) 310, 311 
 
 Filer v. Railroad Co. (49 N. Y. 42; 10 Am. Rep. 65) 
 
 21, 59, 65, 69, 71 (2), 155, 294, 295, 297 
 
 Finney v. Smith (31 O. S. 529) . .' 500 
 
 Firkins v. Railway Co. (61 Minn. 61; 63 N. W. Rep. 172) 83 
 
 Fisher v. Jansen (128 111. 549; 21 N. E. Rep. 598) 87, 92 
 
 Fisher v. Hamilton (49 Ind. 341) 188, 210, 213, 235 
 
 Fisher v. Patterson (14 Ohio 418) 209 
 
 Pitch V. Street Ry. Co. (10 N. Y. Supp. 225) 144, 310, 311, 312 
 
 Pitton V. Railway Co. (5 N. Y. Supp. 641) 88, 124, 149, 311 
 
 Pitts V. Railway Co. (59 Wis. 323) 460 
 
 Fitzgerald v. Railway Co. (12 XJ. C. Q. B. 645) 287, 291, 323 
 
 Fitzpatrick v. Dobson (78 Me. 569) 286, 291 
 
 Pitzpajrick v. Railway Co. (12 TJ. C. Q. B. 645) 167, 284, 286, 323 
 
 Flagg V. Milbury (4 Cush., Mass., 243) 498 
 
 Flanagan v. Womack ( 54 Tex. 45 ) 347 
 
 Flanders v. Tweed (15 Wall. 450) 500 
 
 Plannery v. Railway Co. (4 Mackey, D. C, 111) 352 
 
 Fleming v. Shenandoah (71 la. 456) 160 
 
 Flemington v. Smithers (2 C. & P. 292; 12 E. C. L. 131) 267, 268 
 
 Flint V. Railway Co. ( 34 Conn. 554) 199 
 
 Flint & P. M. R. Co. r. Lull (28 Mich. 510) 445 
 
 Plori V. St. Louis (3 Mo. App. 231) 320 
 
 Florida Railway Co. v. Webster (25 Fla. 394) 516 
 
 Floyd V. Hamilton (33 Ala. 235) 4 
 
 Foley V. Reverside, etc., Co. (85 Mich. 7) 512 
 
 Folsom V. Underbill (36 Vt. 581) 21 32 
 
 Fonda v. Railway Co. (77 Minn. 336; 79 N. W. Rep. 1043) . . . 88 146 
 
 Foot V. Card (58 Conn. 1; 6 L. R. A. 829) ' 314 
 
 Forbes v. Loftin (50 Ala. 396) .' '21, 27, 29 
 
 Ford V. Charles Warner Co. (Del. 37 Atl. Rep. 39) 41 65 156 112 
 
 Ford V. Cheever (105 Mich. 679; 63 N. W. Rep. 975) ' ' 259 
 
 Ford V. Jones ( 62 Barb., N. Y., 484) 185 
 
 Ford V. Railroad Co. (110 Mass. 241) 442 
 
 Pordyce v. Beecher (Tex. Civ. App.; 20 S. W. Rep. 962) . 508 
 
 Pordyce v. Manuel (82 Tex. 527; 18 S. W. Rep: 657) ' 150 185 
 
 Fordyce v. McCants (51 Ark. 509; 14 Am. St. Rep. 69) ' 
 
 „ , 370, 389, 392, 456 
 
 Pordyce v. McCants (55 Ark. 384) 424 
 
 Fordyce, Receiver, v. Withers (1 Tex. Civ. App. 540; 20 s! W Rep 
 
 766) . 97 
 
 Pore v. State (75 Miss. 727; 23 South. Rep. 710) 480 
 
 Forke V. Hamann (Tex. Civ. App.; 39 S. W. Rep. 210) .... 209 
 
TABLE OF CASES. xxxvii 
 
 Fort Wayne & B. & I. Ry. Co. v. Donovan (110 Mich. 173; 68 N. W. 
 
 115) g-^g 
 
 Forth Worth v. Johnson (84 Tex. 137) 63 
 
 Fort Worth, etc., R. Co. v. Barton (Tex. Civ. App.; 15 S W Ren 
 
 197) .'....172 
 
 Fort Worth & D. C. R. Co. v. Kennedy (Tex. Civ. App.; 35 S W 
 
 Rep. 335) 293 
 
 Fort Worth & D. C. R. Co. v. Robertson (Tex. 14 L. R. A. 781) .... 
 
 63 89 339 
 Fort Worth & R. G. Ry. Co. v. Kime (21 Tex. Civ. App. 271- 51 s' 
 
 W. Rep. 558) 424 
 
 Fort Worth, etc., R. Co. v. Wallace (74 Tex. 582) 515 
 
 Fort Worth St. Ry. Co. v. Witten (74 Tex. 202; 11 S. W. Rep. 1091) . 339 
 
 Foster v. Pitts (63 Ark. 387) 351_ 352 
 
 Fotheringham v. Adams Express Co. (1 L. R. A. 474) .' 362 
 
 Fowler v. B. & O. Rd. Co. (18 W. Va. 579) 431, 462 
 
 Fowler v. Railroad Co. (13 N. Y. Supp. 453) .' 65 
 
 Fox V. Barkey (126 Pa. St. 164) 174 
 
 Fox V. Glastenbury (29 Conn. 204) 497 
 
 Fox V. Railroad Co. (53 N. W. 259; 17 L. R. A. 289) 33 
 
 Fox V. Stevens (13 Minn. 272) 216 
 
 Fox V. Wunderlich (64 la. 187) 351 
 
 Francis v. Telegraph Co. (58 Minn. 252; 25 L. R. A. 406) ... 230, 246 
 
 Francis v. Transfer Co. ( 5 Mo. App. 7) 161 
 
 Frank v. Railroad Co. (20 La. Ann. 25) 12 
 
 Franke v. City of St. Louis (110 Mo. 516) 388, 414 
 
 Franklin v. McCorkle (16 Lea, Tenn., 609) 216 
 
 Franklin v. Railway Co. (3 Hurt. & N. 211) 289 
 
 Frazier v. Railroad Co. (38 Pa. St. 104) 478 
 
 Freidman v. Railroad Co. (7 Phil. Rep. 203) 492 
 
 Fremont, etc., R. Co. v. French (48 Neb. 638) 15 
 
 French v. Vining (102 Mass. 132) 34 
 
 French v. Wilkinson (93 Mich. 322; 53 N. W. Rep. 530) 464 
 
 Freeport v. Isbell (93 111. 381; 25 Am. Rep. 407) 290 
 
 Freese v. Tripp (70 111. 496) 263 
 
 Frlck V. Railroad Co. (75 Mo. 542; 25 Am. Rep. 308; 10 A. & E. Rd. 
 
 Cases 776) ■ 327, 330 
 
 Friend v. Dunks (37 Mich. 25) 259 
 
 Friend v. Ingersoll (58 Neb. 281) ^: Ai 
 
 Fry V Hillan (37 S. W. Rep. 359) i Sj 
 
 Fry V. Railroad Co. (45 Iowa 416) 5, 71 
 
 Fuller V. Bank (5 O. F. D. 175) ■ • ■ ■■ ■ • 161 
 
 Fuller V. Citizens Nat. Bk. (15 Fed. Rep. 875) 3, 15. 65 86 
 
 Fuller V Jewett (80 N. Y. 46; 36 Am. Rep. 575) • • ■ 442, 506 
 
 Fuller V. Mayor (92 Mich. 197; 52 N. W. Rep. 1075) 285, 290, 493 
 
 Fuller V. Railroad Co. (21 Conn. 557) ■' ^To ?k9 
 
 FuUerton v. Fordyce (144 Mo. 519; 44 S. W. Rep. 1053) . . . 36, 123, 152 
 
 Fulsome V. Concord (46 Vt. 435) " i-;;^' t^' ' ' cia; 59^ 
 
 • Fulsome v. Railway Co. (72 Minn. 446; 75 N. W. Rep. 589) Sii 
 
 Funston v. Railway Co. (61 la. 452) " " \li 
 
 Purgeson v. Moore (98 Tenn. 342) • • • «^+ 
 
 Purman v. Railway Co. (49 N. Y. Supp. 194) ..... . . .^. ..... ■ ■ . ., 1^* 
 
 Furnish v. Railway Co. ^02^ Mo., ^669 ; ^22 Am. ^St. Rep. 800).^.^.^. ^^^ 
 
 Gahagan v. Aermotor Co. (67 Minn. 252) 138 
 
 Gahan v. Telegraph Co. (59 Fed. Rep. 437) 
 
xxxviii TABLE OF CASES. 
 
 Page. 
 
 Gaither v. Railroad Co. (27 Fed. Rep. 544) 544 
 
 Galbraith v. Fleming (60 Mich. 403; 27 N. W. Rep. 581) 212 
 
 Gale V. Railroad Co. (76 N. Y. 594) 15, 21, 142, 516, 594 
 
 Galesburg v. Benedict (22 111. App. Ill) 474 
 
 Galesburg v. Hall (45 111. App. 290) 50, 100 
 
 Gallon V. Lauer (55 Ohio St. 392) 489 
 
 Galloway v. Railway Co. (56 Minn. 346; 45 Am. St. Rep. 468) 132 
 
 Galloway v. Weber (55 111. App. 366) 518 
 
 Galveston H. & H. R. Co. v. Bohan i(Tex. 47 S. W. Rep. 1050) 
 
 89, 104, 141 
 Galveston, H. & S. A. R. Co. v. Clark (21 Tex. Civ. App. 167; 51 S. 
 
 W. 276) 168 
 
 Galveston, H. & S. A. R. Co. v. Cooper (2 Tex. Civ. App. 42) 92, 111 
 
 Galveston, H. & S. A. R. Co. v. Croskell (Tex. Civ. App. 160; 25 S. 
 
 W. Rep. 486) 139 
 
 Galveston, H. & S. A. R. Co. v. Dulavey (56 Tex. 256) 24 
 
 Galveston, etc., Ry. Co. v. Hynes (6 Am. Neg. Rep. 208; 21 Tex. Civ. 
 
 App. 34; 50 S. W. Rep. 624) 145 
 
 Galveston, H. & S. A. R. Co. v. Kutac (72 Tex. 643) 317 
 
 Galveston, H. & S. A. Rd. Co. v. LeGierse (51 Tex. 189) 348 
 
 Galveston, H. & S. A. R. Co. v. Leonard (Tex. Civ. App.; 29 S. 
 
 W. Rep. 995) Ill, 112 
 
 Galveston, H. & S. A. Ry. Co. v. Parrish (43 S. W. Rep. 536) 147 
 
 Galveston. H. & S. A. Rd. Co. v. Porfert (72 Tex. 344; 17 Am. & Bng. 
 
 R. R. Cas. 540; 10 S. W. Rep. 207) 67, 147, 
 
 Galveston, H. & S. A. Ry. Co. v. Scott (21 Tex. Civ. App. 24; 50 S. 
 
 W. Rep. 477) 89, 148 
 
 Galveston, etc., Ry. Co. v. Levy (59 Texas 543; 46 Am. Rep. 278) ... 227 
 
 Galveston, etc., Rd. Co. v. Thornsberry (17 S. W. 521) 24, 52, 60 
 
 Galveston, etc., R. Co. v. Waldo (Tex. Civ. App.; 32 S. W. Rep. 783) 
 
 41, 63 
 
 Galveston Oil Co. v. Malin (60 Tex. 645) 137 
 
 Garoni v. Campagnie Nationale (14 N. Y. Supp. 197) 145 
 
 Gassaway v. Railway Co. (58 Ga. 216) 354 
 
 Gatzow V. Buening (106 Wis. 1; 49 L. R. A. '475) 269 
 
 Gavisk v. Railroad Co. (49 Mo. 274) 501 
 
 Gaynor v. Railway Co. (100 Mass.' 208; 98 Am. Dec. 96) 433, 445 
 
 Gelse V. Schultz (69 Wis. 521; 34 N. W. Rep. 913) 216 
 
 George v. Haverhill (110 Mass. 506) 96, 436 
 
 Georgia Pac. Ry. Co. v. Davis (92 Ala. 300) .' 433 
 
 Georgia Pac. Ry. Co. v. Dooley (86 Ga. 294; 12 S. E. Rep. 923; 12 L. 
 
 R- A. 342) 136, 291 
 
 Georgia Pac. Ry. Co. v. Freeman (83 Ga. 583; 10 S. E. Rep. 277) 90 
 
 Georgia Pac. Rd. Co. v. Probst (85 Ala. 203) 432, 445 
 
 Georgia Pac. R. Co. v. Ridgen (85 Ga. 867) ' 137 
 
 Georgia, etc., Rd. Co. v. Dougherty (86 Ga. 744; 22 Am. St. 499) . . 
 
 ' 192, 201, 202, 204 
 
 Georgia, etc., Rd. Co. v. Eskew (86 Ga. 641; 22 Am. St. Rep. 497) . . 
 
 188, 192, 201, 204 
 
 Georgia, etc., Rd. Co. v. Garr (57 Ga. 277; 24 Am. R. 492) 460 
 
 Georgia, etc., R. R. v. Homer (73 Ga. 499) 487 
 
 Georgia So. R. Co. v. Neel (68 Ga. 609) 87 91 
 
 Georeia, etc., R. R. Co. v. Pittman (73 Ga. 325; 26 Am. & Bng Rd ' 
 
 Cas. 474) 381 417 423 
 
 Georgia Railroad & Banking Co. v. Keating (99 Ga. 308- 25 S E 
 
 Rep. 669) _ ■ us 
 
 German v. Suburban Rap. Tr. Co. (13 N. Y. Supp." 897) " ." ." ." ." ' 88, 130, 135 
 
TABLE OF CASES. xxxix 
 
 Page. 
 
 Germania Fire Ins. Co. v. Railroad Co. (72 N. Y. 90) 496 
 
 Geveke v. Railroad Co. (57 Mich. 581) 
 
 5, 64, 93, 94, 155, 160, 163, 431, 444 
 
 Gibbons v. Pepper ( 2 Ld. Raym. 38 ) 272 
 
 Giblin v. Mclntyre (2 Utah 384) 21, 65, 154, 161 
 
 Gibney v. Lewis (68 Conn. 392) .'...'.....' 156 
 
 Gibson v. Railroad Co. (164 Pa. St. 142) 495, 496 
 
 Gideens v. Telegraph Co. (Ill Ga. S24: 35 S. B. Rep. 824) .' -247 
 
 Giese v. Schultz (53 Wis. 462; 10 N. W. Rep. 598) 250 252, 254 
 
 Gilbert V. Hoffman (66 la. 205; 23 N. W. Rep. 632) '. 168, 170 
 
 Gilbert v. Railway Co. (160 Mass. 403, 406; 36 N. E. Rep. 60) ... 480 
 
 Gillard v. Railway Co. (12 L. T. 356) 396 
 
 Gillett V. Detroit Board of Trade (46 Mo. 309) 433 
 
 Gilligan v. New York & H. R. Co. (1 E. D. Smith, 453) 319 
 
 Oilman v. Railroad Co. (13 Allen, Mass., 433) 476 
 
 Girard v. Kalamazoo (92 Mich. 510; 52 N. W. 1021) 83 
 
 Givens v. Railroad Co. (89 Ky. 231; 12 S. W. Rep. 257) 375 
 
 Goddard v. Railroad Co. (57 Me. 224; 2 Am. Rep. 39) 
 
 194, 352, 355, 361 
 
 Goddard v. Wescott (82 Mich. 180; 46 N. W. Rep. 242) 250, 251 
 
 Goetz V. Ambs (27 Mo. 28) 5, 352 
 
 Coins V. Moberly (127 Mo. 116; 29 S. W. Rep. 985) 338 
 
 Colder v. Lund (50 Neb. 867; 70 N. W. 379) 21, 22, 23, 26 
 
 Goldsmith v. Joy (61 Vt. 488; 4 L. R. A. 359; 15 Am. St. 923) . . 125, 359 
 
 Gomez v. Joyce (1 N. Y. Supp. 337) 205 
 
 Goodall V. Thurman (1 Head, Tenn., 209) 250, 352 
 
 Goodbar v. Lindsay (51 Ark. 380; 14 Am. St. Rep. 54) 4 
 
 Goodhart v. Pennsylvania R. Co. (177 Pa. St. 191; 35 Atl. 191) 
 
 11, 15, 26, 27, 47, 57, 62, 67, 68, 89, 93, 100, 107, 117, 119, 193 
 
 Goodlett V. Railway Co. (122 U. S. 392) 503 
 
 Goodno V. Oshkosh (28 Wis. 300) 21, 161, 297 
 
 Goodrich v. Railroad Co. (116 N. Y. 404) 506 
 
 Goodsell V. Railway Co. (33 Conn. 31) 398 
 
 Goodwin v. Railroad Co. (Mo. 11 Am. & Eng. R. 460) 510 
 
 Gores v. Graff (77 Wis. 174; 40 N. W. Rep. 48) 381 
 
 Gorham v. Railway Co. (113 Mo. 408; 20 S. W. Rep. 1060) 88 
 
 Gorman v. Railway Co. (78 la. 509; 43 N. W. Rep. 303) 114 
 
 Goss V Railroad Co. (50 Mo. App. 614) 387, 394 
 
 Goss V. Railway Co. (80 Mo. 614) ■ ■ • • 380 
 
 Gottleib V. Railroad Co. (100 N. Y. 462; 3 N. E. Rep. 344) 506 
 
 Gowen v. Harley (6 C. C. A. 190) 505 
 
 Grace v. Dempsey (75 Wis. 323) : • V^; • oV V ' ' '^^ ' ' ■i91■^ 
 
 Grand Rapids & I. R. Co. Huntley (38 Mich. 537; 31 Am. Rep^-^321^) ^^^ 
 
 Gr. Rapids & L R. Co. v. Martin (41 Mich. 667; 3 N. W. Rep. 173^)' ^^^ 
 
 Grand Trunk Ry. Co. v. ives (144 U. S. 408; Cooley on Torts jk 670J ^^^ 
 
 ' Grand Trunk Rd. Co. v. Nichol (18 Mich. 170) kfi'-nVVq^KS 
 
 Grant v. Brooklyn (41 Bard, N. Y., 385) ... . . ... ..... • ■ • ■ 46, 47, 53 58 
 
 Grant v. Railway Co. (6 C. D. O. 516; 10 C. C. 0. 362) _ • 433 
 
 Grant v. Willey (101 Mass. 356) ■•••••••■ ■ • • ■ ''''"• (l^ 
 
 Grant v. Union Pac. Ry. Co. (45 Fed. Rep. 673) •„ • ii^ 
 
 Gratiot V. Railway Co. (Mo. 16 S. W- Rep. 384) 127. 131 
 
 Graves v. City of Battle Creek (95 Mich. 266) 4^» 
 
 Gray v. Latham (81 Ga. 620) 3g5 
 
 Gray v. McDonald (104 Mo. 303) 
 
xl TABLE OF CASES. 
 
 Page. 
 
 Gray v. Railway Co. (11 Fed. Rep. 683) 197, 198, 497 
 
 Green v. Craig (47 Mo. 90) 363 
 
 Green v. Railway Co. (2 Abb. Dec. 277) 396 
 
 Greenleaf v. Birth (9 Pet, U. S., 292) 508 
 
 Greenleaf v. Railroad Co. (29 Iowa 14) 512 
 
 Greenleaf v. Railroad Co. (33 Iowa 52) 512 
 
 Greenlee v. Schoenheit (23 Neb. 669; 37 N. W. Rep. 600) 262 
 
 Greenville Oil & Cotton Co. v. Harkey (20 Tex. Civ. App. 225; 48 S. 
 
 W. Rep. 1005) 63, 338 
 
 Greer v. Railroad Co. (94 Ky. 169; 42 Am. St. Rep. 845) 
 
 90, 91, 96, 111, 113, 168 
 
 Gregory, D. S. (2 Ben. 226) 26 
 
 Gregory v. Railway Co. (55 Hun, N. Y. 303) 107 
 
 Gregory v. Railway Co. (8 N. Y. Supp. 525) 99 
 
 Grieve v. St. Railway Co. (47 Atl. Rcp. 427) 415 
 
 Griffen v. Lewiston (Idaho, 55 Pac. Rep. 545) 170 
 
 Griffin v. Farewell (20 Vt. 151) 7 
 
 Griffin v. Railway Co. (68 Iowa 638) 503 
 
 Griffith V. Railway Co. (44 Fed. Rep. 576) 160, 286, 291 
 
 Griffiths V. Railway Co. (98 Mo. 168; 11 S. W. Rep. 559) 143 
 
 Gries v. Zeck (24 Ohio St. 329) 20, 21, 25, 26 
 
 Grimmolman v. Railway Co. (101 la. 74) 100 
 
 Griswold v. Railroad Co. (115 N. Y. 61) 69 
 
 Groeber v. Derwin (43 Cal. 495) 492 
 
 Groff, Admr., v. Railroad Co. (1 C. S. C. O. 264) 391, 392 
 
 Grogen v. Metal Co. (87 Mo. 321) 371 
 
 Gronan v. Kukkuck (59 la. 18) 160 
 
 Gross V. Miller (93 Iowa 80; 50 N. E. Rep. 385) 498" 
 
 Gross V. Railroad Co. (1 C. S. C, Ohio, 264) 377 
 
 Grossman v. Cosgrove (75 111. App. 385) 151 
 
 Groves v. Rochester (39 Hun 5) 132 
 
 Grotenkemper v. Harris (25 Ohio St. 510) 327, 371, 460 
 
 Gulf, etc., R. R. Co. v. Box (81 Tex. 670) 268 
 
 Gulf, etc., R. Co. V. Brown (Tex. Civ. App.; 40 S. W. Rep. 608) . . 41, 63 
 Gulf C. & S. F. R. Co. V. Campbell (76 Tex. 134; 13 S. W. Rep. 19) . 24 
 Gulf C. & S. F. Rd. Co. V. Compton (75 Tex. 87; 18 S. W. Rep. 667) 
 
 326, 386 
 Gulf Coast & S. F. R. Co. v. Hayter (93 Tex. 239; 14 L. R. A. 325) . . 
 
 165, 176 
 
 Gulf, etc., Rd. Co. v. Higby (Tex. Civ. App.; 26 S. W. Rep. 737) 132 
 
 Gulf C. & S. F. R. Co. V. Johnson (10 Tex. Civ. App. 254) Ill, 418 
 
 Gulf C. & S. F. Ry. Co. v. Levy (59 Tex. 563) 161, 266, 267 
 
 Gulf C. & S. F. Rd. Co. V. Norfleet (78 Tex. 321; 45 Am. & Eng. R. 
 
 R. Cases, 207; 14 S. W. Rep. 703) 147, 474 
 
 Gulf C. & S. F. R. R. Co. V. Redeker (73 Tex. 10; 16 Am. St. Rep. 
 
 887) 513. 516 
 
 Gulf C. & S. F. Rd. Co. V. Sain (Tex. Civ. App.; 24 S. W. Rep. 958) 
 
 150 
 
 Gulf C. & S. F. R. R. Co. V. Silliphant (70 Tex. 623) «9, 132 
 
 Gulf C. & S. F. R. Co. V. Smith (Tex. Civ. App.; 26 S. W. Rep. 644) . .' Ill 
 
 Gulf C. & S. F. R. R. Co. V. South wick (30 S. W. Rep. 592) 29, 403 
 
 Gulf C. & S. F. R. Co. V. Trott (86 Tex. 412; 25 S. W. Rep. 419, 
 
 431) 161, 166, 172 
 
 Gulf C. & S. P. R. Co. V. Wilson (69 Tex. 739) 229 
 
 Gulf C. & S. P. R. R. Co. V. Wilson (79 Texas 371) . . . . 62 
 
 Gulf C. & S. F. Rd. Co. V. Wright (10 Tex. Civ. App. 179; 30 S W 
 
 Rep. 294) 150 
 
XABI.E OF OASES. xli 
 
 Page. 
 Gulf, W. T. & P. R. Co. V. Abbott (Tex. Civ. App.; 24 S W. Rep 
 
 299) 93, 94 
 
 Gulf, W., T. & P. Ry. Co. v. Holzheuser (45 S. W. Rep. 188) 43 
 
 Gulf, etc., Tel. Co. v. Richardson ( 79 Tex. 649) 228 
 
 Gumb V. 23d St. Ry. Co. (114 N. Y. 411,; 21 N. B. 993) 62 
 
 Gumb V. Ry. Co. (58 N. Y. oup. Ct. 559) 56 
 
 Guthrie v. Railway Co. (20 Oregon 291; 26 Pac. Rep. 76) 494 
 
 Guy V. Livesay (Cro. Jac. 501) 302 
 
 Guy V. Lusy (2 RoUe 51) 300 
 
 Haas V. Railway Co. (90 la. 257; 57 N. W. Rep. 894) 421 
 
 Hackett v. Pratt (52 111. App. 346) ' ' ' 518 
 
 Hackford v. Railway Co. (53 N. Y. 654) ...\..... 432 
 
 Haden v. Railway Co. (92 Iowa 226; 60 N. W. Rep. 537) 87, 98 
 
 Haden v. Railway Co. (99 Iowa 735) 'll4 
 
 Hadley v. Baxendale (9 Exch. 341) 232, 233 
 
 Hadley v. Western U. Tel. Co. (115 Ind. 191; 15 N. B. Rep. 845) . . .'. 391 
 
 Hagan v. Railway Co. (3 R. I. 91; 62 Am. Dec. 377) 355 
 
 Hagenlocher v. Railroad Co. (99 N. Y. 136; 1 N. E. Rep. 536) 82 
 
 Haggerty v. Railway Co. (31 N. J. L. 349) 372 
 
 Haigh V. Royal Mail S. P. Co. (52 L. J. Q. B. 640) 497 
 
 Haile v. Railway Co. (60 Fed. Rep. 557; 23 L. R. A. 774) . . 164, 173, 174 
 
 Hale V. Bonner (82 Tex. 33; 17 S. W. Rep. 605) 154 
 
 Hale V. Lawrence (21 N. J. L. 714; 47 Am. Dec. 190) 439 
 
 Haley v. Railway Co. (7 Baxt. Tenn. 239) 239, 354 
 
 Hall V. Grain (2 Dec. Re., Ohio, 453) 391 
 
 Hall V. Fon du Lac \.i2 Wis. 274) 436 
 
 Hall V. Incorporated Town of Manson (90 Iowa 585; 58 N. W. Rep. 
 
 881) ; 235 
 
 Hall V. Railway Co. (39 Fed. Rep. 18) 393 
 
 Hall V. Railway Co. (84 la. 311; 49 N. W. Rep. 239) 131 
 
 Hall V. Railway Co. (46 Minn. 439; 49 N. W. Rep. 239) 88, 133 
 
 Hallberg v. Brosseau ( 64 111. App. 520) 518 
 
 Halleck v. Johnson (Colo., 20 Pac. Rep. 7uO) 93 
 
 Halliford v. Kansas City (103 Mo. 172) 155 
 
 Halloran v. Railroad Co. (4 Dec= Re., Ohio, 14) 391 
 
 Halt V. Whately (51 Ala. 569) 431 
 
 Halter v. Daly (106 111. 131) 370 
 
 Hamilton v. The Brantfort (48 Fed. Rep. 914) 86, 106, 10/, 135 
 
 Hamilton v. Jones (125 Ind. 176; 25 N. E. 192) 409 
 
 Hamilton v. Railroad Co. (53 N. Y. 25) 4, 13, 41, 65, 155, 185 
 
 Hamilton v. Railway Co. (17 Mont. 334; 42 Pac. 860) . . 65, 69, 71, 72, 311 
 
 Hamilton v Smith (39 Mich. 222) 214 
 
 Hammond v. Hussey (51 N. H. 40; 12 Am. Rep. 41) 6, 7 
 
 Hammond v. Woodman (41 Me. 177; 66 Am. Dec. 219) 459 
 
 Hammond v. Murka ( 40 Wis. 35) 154 
 
 Hammond v. Railway Co. (12 Dec, Ohio, 40) 418 
 
 Hanaford v. Kansas City (103 Mo. 172) 64, 68 
 
 Hanes v. Tiffany, 25 O. S. 548, 554) 520 
 
 Hanlon v. Railway Co. (104 Mo. 381; 16 S. W. Rep. 233) 151 
 
 Hannibal & St. Jos. R. Co. v. Martin (111 111. 219) 155, 156, 160 
 
 Hanover, etc., Rd. Co. v. Coyle (55 Pa. St. 396) : • • • ,1 ' ■/„■;:; ,„„ 
 
 48, 51, 54, 58, 445, 446, 450, 455 
 
 Hansen v. Boyd (161 U. S. 405) 509 
 
 Hansford v. Payne (11 Bush, Ky., 380) ;, 1,, 
 
 Hanson v. Railroad Co. (62 Me. 84; 16 Am. Rep. 404) 13, 1^7 
 
xln TABLE OF CASES. 
 
 Page. 
 
 Harding v. Railway Co. (56 Mich. 628) 435, 461 
 
 Harding v. Railway Co. (36 Hun, N. Y., 72) 161 
 
 Harding v. Townsend (43 Vt. 536; 5 Am. R. 304) 493 
 
 Hardy v. Milwaukee Street Ry. Co. (59 Wis. 183; 61 N. W. Rep. 771) 73 
 
 Hardy v. Railway Co. (36 Fed. Rep. 657) 393 
 
 Hardy v. The Raleigh (4 Fed. Hep. 527) 133 
 
 Hare v. Marsh (61 Wis. 435; 50 Am. Rep. 141) 487 
 
 Hargreaves v. Kimberly (26 W. Va. 787; 57 Am. Rep. 121) 58 
 
 Harper v. Railway Co. (88 la. 409; 55 N. W. Rep. 316; 45 Am. St. 
 
 Rep. 242) 87,133 
 
 Harkins v. Car Co. (52 Fed. Rep. 724) 379, 416, 423 
 
 Harley v. N. Y., etc., Brewing Co. (43 N. Y. Supp. 259) 286 
 
 Harmon v. Old Colony R. Co. (165 Mass. 100; 30 L. R. A. 658) . . 300, 311 
 
 Harmon v. Railroad Co. (168 Mass. 377; 30 L. R. A. 658) 44 
 
 Harriman v. Railway Co. (45 Ohio St. 11) 13 
 
 Harriman v. Stows (57 Mo. 93) 455 
 
 Harris v. Quincy (171 Mass. 472; 50 N. B. 1042) 480 
 
 Harris v. Railroad Co. (13 Fed. Rep. 591) .. 4, 15 (2), 41 (2), 86, 
 
 65, 124, 156, 508 
 
 Harris v. Railway Co. (76 Mich. 227; 42 N. W. Rep. 1111) .• 81 
 
 Harrison v. Berkley (1 Stroble L. 525; 47 Am. Dec. 578) 181 
 
 Harrison v. Railroad Co. (79 Mich. 409) 512 
 
 Harrison v. Railway Co. (35 Fed. Rep. 119) 5J5 
 
 Harrold v. Railway Co. (24 Hun, 184) 126 
 
 Hart V. Hudson River Bridge Co. (80 N. Y. 662) ' 460 
 
 Hart V. Railroad Co. (33 S. C. 427; 10 L. R. A. 794) 21, 23, 356 
 
 Hart V. Railway Co. (94 Mo. 252; 34 Am. & Eng. Rd. Cases 422) .. . 79 
 
 Hartigan v. Southern Pac. Ry. (86 Cal. 142) 409 
 
 Hartwig v. Railroad Co. (49 Wis. 358) 460 
 
 Hartzell v. Shannon (6 Bull., Ohio, 756) 440 
 
 Hassenyer v. Michigan Cent. Rd. Co. (48 Mich. 205; 42 Am. R. 478) 
 
 497 
 
 ' Hastings v. Stetson (130 Mass. 76) 185, 205 
 
 Hastings v. Stetson (Me., 39 Atl. Rep. 580) 292 
 
 Haszlacher v. Railroad Co. (56 N. Y. Supp. 380) 33 
 
 Hatch V. Puller (131 Mass. 574) 83, 215 
 
 Hatfield v. St. Paul & Duluth Rd. Co. (33 Minn. 130; 53 Am. R. 14) 
 
 464, 471, 474 
 
 Hathaway v. Railroad Co. (29 N. Y. 489) 506 
 
 Hathorn v. Richmond (48 Vt. 557) 34 
 
 Hatt V. Nay (144 Mass. 186) 476, 486 
 
 Haug V Railway Co. (77 N. W. 102) 460 
 
 Hauter v. Stuart (47 Me. 419) 435 
 
 Havener v. Western Union icl. Co. (117 N. C. 540; 23 S. E. Rep. 
 
 457) 218 
 
 Haverly v. Railway Co. (135 Pa. St. 50; 20 Am. St. Rep. 848) . . 181, 183 
 
 Haverstock v. Erie Gas Co. (29 Pa. St. 284) 500 
 
 Hawkins v. Front St. Cable Co. (3 Wash. 592; 28 Am. St. Rep. 72; 
 
 16 L. R. A. 808) 172, 65, 293, 294, 295, 304 
 
 Hayden v. Clarke (10 N. Y. Supp. 291) 310 
 
 Hayden v. Smithville Mfg. Co. (29 Conn. 548) 437 
 
 Hayes v. Creary (60 Tex. 445) 185 
 
 Hayes v. Street Ry. Co. (97 N. Y. 259) 491 
 
 Haynes v. Erk (6 Ind. App. 332; 33 N. E. 637) 131 
 
 Haynes v. Nowlin (129 Ind. 581; 14 L. R. A. 787) 314 
 
 Haythorn v. Lawson (3 C. & P. 196) 208 
 
 Hays V. Railway Co. (46 Tex. 272) 202, 227, 487 
 
TABLE OF CASES. xliii 
 
 Page. 
 
 Hayward v. Miller 94 111. 349; 34 Am. Rep. 229) 142 
 
 Hazard Powder Co. v. Volger (. C. C. A. 130; 58 Fed. Rep. 152) -^ 
 
 „ , „ . 28, 44, 45 (3), 329 
 
 Head v. Railway Co. (79 Ga. 358; 11 Am. St. Rep. 434) 
 
 156 (2), 185, 187, 201, 202 
 
 Heard v. Railway Co. (1 Int. Com. R., 719) 200 
 
 Heard v. Railway Co. (2 Int. Com. R. 508) 200 
 
 Heckman v. Ry. Co. (22 Mo. App. 344) 414 
 
 Heddles v. Railway Co. (77 Wis. 228; 20 Am. St. Rep. 114) 
 
 41, 64, 69, 71 (2), 89, 131, 154, 158 "(2), 171 
 Hedrick v. Railroad Co. (4 Wash. 400; 30 Pac. 714) .. . 30 403 409 
 
 Hegenet v. Keddie (99 N. Y. 258) ' '372 
 
 Heilner v. Union Co. (7 Ore. 83) 433 435 
 
 Heintz v. Caldwell (9 C. D. O. 412; 16 C. C. 630) .'.", . . 34, 36 
 
 Heinz v. Brooklyn Heights Ry. Co. (36 N. Y. S. 675) 412 
 
 Heirn v. McCaughan (32 Miss. 17; 66 Am. Dec. 588, note) .. 435, 461 
 
 Helton V. Railway Co. (97 Ala. 275) , 92, lOO 
 
 Hendricks v. Fowler (9 C. D. 0. 209; 16 C. C. R. 597) 17,' 358 
 
 Henderson v. Fox (83 tia. 233) .' 519 
 
 Henderson v. Railroad Co. (52 Minn. 479; 55 N. W. Rep. 53) 517 
 
 Henry v. Davis (123 Mass. 345) 500 
 
 Henry v. Klopfer (147 Pa. St. 98; 23 Atl. Rep. 337) ... 297, 293, 294 
 
 Henry v. Railway Co. (75 Iowa 84) 515 
 
 Hudson V. Voight (9 C. D. O. 35; 16 O. C. C. 391) 500 
 
 Hendson v. Weir ( 29 Ala. 294 ) 505 
 
 Herbert v. Butler (97 U. S. 319) 118 
 
 Hermes v. Railway Co. (80 Wis. 590; 27 Am. St. Rep. 69) 
 
 445, 446 (2), 450, 457 
 
 Hess V. L. S. & M. S. Co. (7 Pa. Co. Ct. R. 565) 472 
 
 Hess V. Lowery (122 Ind. 225) 464, 466, 469, 471 
 
 Hesse, Admx. v. Columous, S. & H. Rd. Co. (58 Ohio St. 167) 101 
 
 Hetch V. Railway Co. (132 Ind. 507; 32 N. E. Rep. 302) 497 
 
 Hewitt V. Bisenbart (36 Neb. 794; 55 N. W. Rep. 252) 23, 39 
 
 Hewlett V. Crutchley (5 Taunt. 276) 191 
 
 Hicks V. Railway Co. (64 Mo. 430) 445 
 
 Higgins V. Railway Co. (73 Ga. 149) 487 
 
 Higgons V. Butcher Yelv. (Met. ed.) 300 
 
 Hill V. Atkinson (9 C. D. O. 185; 16 O. C. C. 470) 88 
 
 Hill V. Corn (2 Gratt, Va., 605) 450 
 
 Hill V. Kimball (76 Tex. 210; 7 L. R. A. 618) 166 
 
 Hill V. Railroad Co. (11 La. Ann. 292) 3, 15 
 
 Hill V. Winsor (118 Mass. 251) 41, 85 
 
 Hiltz V. Railroad Co. (55 Mich. 437) 434 
 
 Hinkle v. Railroad Co. (109 N. C. 472; 26 Am. St. R. 581) 512 
 
 Hinton v. Railway Co. (65 Wis. 323) 143 
 
 Hirtsfield v. Ft. Worth Nat. Bank (83 Tex. 452; 15 L. R. A. 639) . . 208 
 
 Hoag V. Railroad (4 Norris 293) 275 
 
 Hoard V. Peck (56 Barb. 202) ■ • • • » 
 
 Hobbs V. Eastern Ry. Co. (66 Me. 572) 423, 422 
 
 Hobbs V. London, etc., Ry. Co. (10 Q. B. 122) 230 
 
 Hobson V. Railway Co. (Ariz., 11 Pac. Rep. 545) 144 
 
 Hocum V. Weitherwick (22 Minn. 154) 4dd 
 
 Hoey V. Felton (11 Queen's B., N. S., 146) ;;;",V7 olt 
 
 Hogue V. Railway Co. (32 Fed. Rep. 365) 370 377, 3^ 
 
 Holland V. Brown (35 Fed. Rep. is) ^''' ^^' !nQ 
 
 Holland v. Brown (13 Sawyer, LT. S., 284) • . ■ • • ■ • • • • • ■ • • ■ • 4Ud 
 
 Holleman v. Harwood (119 N. C. 150; 34 L. R. A. 803; 25 S. E. Rep. 
 
xliv TABLE OF CASES. 
 
 Page. 
 
 972) 7,294,295 
 
 Hollenbeck v. Railway Co. (Mo., 38 S. W. Rep. 723) 145 
 
 HoUoway v. Griffith (32 la. 409; 7 Am. Rep. 208) ^ 234 
 
 Holmes v. Clark (4 West. Rep. 405) 455 
 
 Holmes v. Halde (74 Me. 28; 43 Am. Rep. 567) 41, 42 
 
 Holmes v. Oregon & C. Ry. Co. (5 Fed. Rep. 75) 411 
 
 Holmes v. Writhench (22 Minn. 152) 431 
 
 Holt V. Spokane, etc., R. R. Co. (Idaho, 35 Pac. Rep. 39) 386 
 
 Holyoke v. Railway Co. (48 N. H. 541) ..3, 21, 65, 71, 76, 88, 155, 
 
 161, 476, 515, 517 
 
 Honeycutt v. Railway (40 Mo. App. 674) 138 
 
 Hopen V. Walker (96 Mich. 236; 35 Am. St. Rep. 598) 343 
 
 Hopkins v. Railroad Co. (36 N. H. 9; 72 Am. Dec. 287) . . 4, 21, 27, 
 
 32, 59, 88, 300, 302, 308 
 
 Hopkinson v. Knapp (92 la. 328) 388 
 
 Hoppe V. Railroad Co. ( 61 Wis. 367) 326, 412 
 
 Houck V. Railway Co. (38 Fed. Rep. 226) 200 
 
 Houfe V. Fulton (34 Wis. 608; 17 Am. Rep. 463) 142 
 
 Hough V. Railroad Co. (100 U. S. 213) 442, 454 
 
 Houghkirk v. Railway Co. (92 N. Y. 219, 224; 44 Am. Rep. 370) . . 
 
 30, 306, 576 
 
 Houston V. Graw (38 Neb. 687) 257 
 
 Houston V. Railroad Co. (57 Tex. 293) 329 
 
 Houston V. Traphagen (47 N. J. L. 23) 284 
 
 Houston City St. Ry. Co. v. Sciacca (80 Tex. 350; 16 S. W. Rep. 31) . 391 
 Houston City St. Ry. Co. v. Medlenka (17 Tex. Cir. App. 621"; 43 S. 
 
 W. Rep. 1028) 134 
 
 Houston City St. Ry. Co. v. Reichart (87 Tex. 539; 29 S. W. Rep. 
 
 1040) 21 32, 43 
 
 Houston & E. W. T. Ry. Co. v. Hartnett (48 S. W. Rep. 773) . .41, 62, 89 
 
 Houston & T. C. Rd. Co. v. Baker (57 Tex. 419) 346 
 
 Houston, etc., Rd.'Co. v. Boehm (57 Tex. 15) . . 41, 89, 97, 103, 127, 161 
 Houston, etc., Ry. Co. v. Boozer (70 Tex. 530; 8 Am. St. Rep. 615) . . 90 
 Houston & T. C. R. Co. v. Burke (55 Tex. 323; 40 Am. Rep. 808; 9 
 
 Am. & Eng. R. Cases 369) 3, 107, 108, 109, 119 
 
 Houston & T. C. R. R. v. Fredericks (Tex., 41 Am. Rep. 57) 286 
 
 Houston & T. C. R. Co. v. Kimhell (Tex. Civ. App.; 43 S. W. Rep. 
 
 1049) 24 
 
 Houston & T. C. Rd. Co. v. Leslie (57 Tex. 83) 
 
 287, 493 
 
 Houston & T. C. Rd. Co. v. Lowe (11 S. W. Rep. 1065) 93, 127 
 
 Houston & T. C. R. Co. v. Pereira (Tex. Civ. App.; 45 S. W. Rep. 767) 
 
 22 
 
 Houston & T. C. Ry. Co. v. Rand (1 Tex. Civ. App. 100) 161 
 
 Houston & T. C. Rd. Co. v. Randall (50 Tex. 254) 161 
 
 Houston & T. C. R. Co. v. Reason (61 Tex. 613) 491 
 
 Houston & T. C. R. Co. v. Rand (1 Tex. Civ. App. lOO 154 
 
 Houston & T. C. R. Co. v. Shafer (54 Tex. 641; 6 Am. & Eng Rd 
 
 Cases 421) 83_ gj^ 286, 291 
 
 Houston & T. C. R. Co. v. Stuart (48 S. W. 799; 1 Sutherland on 
 
 Damages 770) 32 
 
 Houston & T. C. Rd. Co. v. Waller (56 Tex. 331) 491 
 
TABLE OF CASES. ^^^ 
 
 Houston & T. C. R. Co. v. Willie (53 Tex. 318; 37 Am. Rep. 756) . . .^^™' 
 
 89 1 0fi 1 07 
 
 Houston Great North Rd. Co. v. Miller (49 Tex. 322) ' 327 330 
 
 Howard County Comrs. v. Legg (93 Ind. 523) '" ' Qsn 
 
 Howard Co. Comrs. v. Legg. (110 Ind. 479) 403 
 
 Howard Oil Co. v. Davis (76 Tex. 630; 13 S. W. Rep. 665) 104 93 
 
 Howe V. Railway Co. (62 Minn. 71; 30 L. R. A. 684) ss 339 
 
 Howard v. Canal Co. (40 Fed. Rep. 195; 6 L. R. A 75) 370' 371 
 
 Howland v. Street Ry. Co. (110 Cal. 513) 510 
 
 Howes V. Ashfleld (99 Mass. 540) 88 
 
 Howes V. Stock Yards (103 Mo. 60) 513 
 
 Hubbard v. Railroad Co. (39 Mo. 5) ..............] 485 
 
 Huckle V. Money (2 Wlls. 205) 363 
 
 Hudson V. Houser (123 Ind. 307) 370, 379 386 
 
 Hudson V. Railway Co. (59 Iowa 581) . ' ' 486 
 
 Hudson V. Voight (9 C. D. O. 35; 15 C. C. R. 391) 519 
 
 Huerzeler v. Railroad Co. (20 N. Y. S. 676) 411 
 
 Hufford V. Railway Co. (64 Mich. 631; 8 Am. St. Rep. 859) .... 192 
 
 Hughes V. Orange County (Milk) Ass'n (10 N. Y. Supp. 252) ..88, 149 
 
 Hughes V. Orange County Assn. ( 56 Hun 396) ' 136 
 
 Huizega v. Cutler and Savage L. Co. (51 Mich. 272; 16 N. W. Rep. 
 
 643) 3, 5, 22, 23, 41, 42, 53, 88 
 
 Hulehan v. Railroad Co. (68 Wis. 520) 21, 22 
 
 Humbolt L. & M. Assn. v. Christopherson (73 Fed. Rep. 239; 19 C. C. 
 
 A. 481) 416, 420 
 
 Hunn V. Railroad Co. (78 Mich. 513; 7 L. R. A. 500) . . 13, 112, 111, 
 
 487, 489, 492 
 
 Hunt V. Railway Co. (26 Iowa 363) 61, 489 
 
 Hunt V. Winfleld (36 Wis. 154; 17 Am. Rep. 482) 302 
 
 Hunter v. Hatfield (68 Ind. 416) 254 
 
 Hunter v. Mexico (49 Mo. App. 17) 24 
 
 Hunter v. Stewart (47 Me. 419) 17, 33, 461 
 
 Huntington & B. T. R. Co. v. Decker (84 Pa. St. 419) 309, 374 
 
 Hurlburt v. Green (41 Vt. 490) 5 
 
 Hurt V. Railway Co. (94 Mo. 255; 34 Am. & Eng. Rd. Cases 422) 119, 342 
 Hurst V. Railway Co. (84 Mich. 539) . . 64, 369, 370, 373, 387, 397, 400 
 
 408 (2), 437, 438 
 
 Huse, etc., Ice Co. v. Heinze (102 Mo. 245) 5 
 
 Hutchins v. Railroad Co. (44 Minn. 5) 309, 393 
 
 Hood V. Palm (8 Pa. St. 239) •••■•■ 6 
 
 Hooghkirk v. Delaware & H. Canal Co. (63 How. Pr., N. Y., 328) ... 412 
 
 Hooper v. Haskell (56 Me. 251) ■ • • 266 
 
 Hooker v. Railroad Co. (76 Wis, 542) •••••■ 451, 454 
 
 Hyatt V. Adams (16 Mich. 180) 266, 267, 268, 300, 304, 367, 393 
 
 Hyatt V. Railroad Co. (6 Hun, N. Y., 306) 351 
 
 Hyde V. Railway Co. (7 Utah 356) • ■ • ^^^ 
 
 Hyde v. Scyssor (Cro. Jac. 538) 300, JO^ 
 
 Jhl V. Street Ry. Co. (47 N. Y. 317; 7 Am Rep. 450) .... 330, 397. 460 
 
 111 Cent R R Co. v. Baches (55 111. 379) 379, 400, 487 
 
 niinots Cent. R. Co. v. Barron (72 U. S.. 5 Wall. 90) . . 15, 309, 393, 403 
 
 Illinois Cent. R. R. Co. v. Cobb (68 111. 53) ii ' kV cV fio II 
 
 Illinois Cent. Rd. Co. v. Cole (60 111. App. 480) 21, 41, 64> 69, 87 
 
 Illinois Cent. Ry. Co. v. Cole (165 HI- .334) . 172, 268 
 
 Illinois Cent. R. Co. v. Crudup (63 Miss. 291) U* 
 
xlvi TABLE OF CASES. 
 
 Page, 
 
 Illinois Cent. Rd. Co. v. Davidson (76" Fed. Rep. 517) 41, 65, 
 
 69, 71, 72, 92 
 
 Illinois Cent. R. R. Co. v. Bbert (74 111. 399) 420, 520 
 
 Illinois Cent. R. R. v. Houck (72 111. 285) 442 
 
 Illinois Cent. R. Co. v. Minor (69 Miss. 710; 16 L. R. A. 627) 
 
 193, 502, 509 
 
 Illinois Cent. R. Co. v. Parks (88 111. 373) 129 
 
 Illinois Cent. R. Co. v. Phillips (55 111. 194) 442 
 
 Illinois Cent. R. Co. v. Phillips (49 111. 234) 442 
 
 Illinois Cent. Rd. Co. v. Robinson (58 111. App. 181) 160 
 
 Illinois Cent. Ry. Co. v. Slater (28 111. App. 73) 414 
 
 Illinois Cent. R. R. Co. v. Souders (79 111. App. 41) 291 
 
 Illinois Cent. R. Co. v. Sutton (42 111. 438; 92 Am. Dec. 81) 
 
 81, 82, 83 
 
 IllinoiK Cent. Railroad Co. v. Treat (75 111. App. 327) 87, 322 
 
 Illinois Cent. Rd. Co. v. Welch (52 111. 184) 13, 495 
 
 Illinois Centr. R. Co. v. Weldon (52 111. 290) 379, 380, 381 
 
 Illinois Centr. Rd. Co. v. Wheeler (149 111. 525; 36 N. B. Rep. 1023) 151 
 
 Illinois Cent. R. Co. v. Zang (10 111. App. 594) 487 
 
 Illinois & St. L. R. Co. v. Whalen (19 111. App. 116) 375 
 
 Improvement Co. v. Munson (14 Wall. 442) 503 
 
 Indiana Car Co. v. Parker (100 Ind. 181) ... 64, 87, 439, 457, 464, 516 
 
 Indianapolis v. Gaston (58 Ind. 277) 21, 41, 160 
 
 Indianapolis v. Scott (72 Ind. 196) , 288 
 
 Indianapolis, B & W. R. Co. v. Barnhart (115 Ind. 399; 16 N. B. 121) 
 
 87 
 
 Indianapolis, B. & W. R. Co. v. Birney (71 111. 391) 5, 161 
 
 Indianapolis, etc., Rd. Co. v. Boring (71 111. 391) 22 
 
 Indianapolis, etc., Rd. Co. v. Estes (96 111. 470) 503 
 
 Indianapolis, etc. Rd. Co. v. Howerton (127 Ind. 236) 192 
 
 Indianapolis & St. L. Rd. Co. v. Horst (93 U. S. 291) 432 
 
 Indianapolis & St. L. Rd. Co. v. Stables (62 111. 313) ..5, 155, 172, 
 
 160, 266 
 
 Indianapolis Penn. & Chic. Co. v. Bush (101 Ind. 582) 483 
 
 Inhabitants of Ashland v. Inhab. of Marl. (99 Mass. 48) 81 
 
 Inland Seaboard Coasting Co. v. Tolsen (139 U. S. 551) ... 149, 432, 445 
 
 In re Humboldt (60 Fed. Rep. 428) 416 
 
 Insurance Co. v. Braine (95 TJ. S. 754) 367 
 
 Insurance Co. v. Cheever ( 36 Ohio St. 201) 454 
 
 Insurance Co. v. Mosely (8 Wall. 397, 405) 81, 83, 455, 457 
 
 Insurance Co. v. Pottker (33 O. S. 459) 520 
 
 Insurance Co. v. Warehouse (93 U. S. 527) 501 
 
 Int. & G. T. R. R. Co. v. Anderson (82 Tex. 516; 27 Am. St. Rep. 902) 
 
 446, 455 
 International & G. N. R. Co. v. Bonantz (Tex., 48 S. W. Rep. 767) . .63, 89 
 International & Gt. N. Ry. Co. v. Brazel (44 Am. & Eng. Rd. Cas. 
 
 437; 78 Tex. 314; 14 S. W. Rep. 609) 126 
 
 International & Gr. N. R. Co. v. Gilbert (64 Tex. 536) 67 
 
 International & Gr. N. R. Co. v. Henzie (82 Tex. 623) 338 
 
 International & Gr. N. R. Co. v. Irvine (64 Tex. 529; 23 Am. & Eng. 
 
 Rd. Cases 518) 89, 99, 461 
 
 International & Gr. N. R. Co. v. Jones (60 S. W. Rep. 978) 423 
 
 International & Gr. N. R. Co. v. Kentle (2 Tex. Civ. App. 262) 48S 
 
 International & Gr. N. R. R. Co. v. Kindred (57 Tex. 491) 
 
 386, 488, 490 
 International & Gr. N. R. Co. v. Knight (91 Tex. 660; 45 S. W. Rep. 
 
 556) 425 
 
TABLE OF CASES. xlvii 
 
 international Gr. N. R. R. Co. v. McNeill (Tex. Civ Add ■ 29 <f'^™' 
 
 W. Rep. 1133) ■ ^^■' '^^ '^^ 
 
 International & Gr. N. R. Co. v. Ormand (64 Tex. 485) ' 104 '4I6 422 
 International & Gr. N. R. Co. v. Ragsdale (67 Tex. 589- 2 S w' 
 
 Rep. 515) ' ■ ■ gQj 
 
 International & Gr. N. R. Co. v. Rhodes (21 Tex. Civ. App. 459- '51 
 
 S. W. 517) ' ^g^ 
 
 International & Gr. N. R. Co. v. Shimrock (81 Tex. 503) . 51 
 
 International & Gr. N. Rd. Co. v. Stewart (57 Tex 60) 513 515 
 
 International & Gr. N. R. Co. v. Terry (62 Tex. 380; 50 Am.' Rep! 
 
 ^^^^.■■■■■■■■■■■■■■- 271, 280, 286 
 
 International, etc., Rd. Co. v. IVIcDonald (75 Tex. 41) 365 
 
 International, etc., R. Co. v. Millikan (10 Tex. Civ. App. 663) ^ ^ 130 
 International, etc., Rd. Co. v. Telephone, etc., Co. (69 Tex. 277) . 351 
 International, etc., R. Co. v. Terry (62 Tex. 38; 50 Am. Rep. Z29) .. 21 
 
 International, etc., Ry. Co. v. Underwood ^64 Tex. 463) 474 
 
 International, etc., Ry. Co. v. Wilkes, (68 Tex. 617; 2 Am. St. Rep. 
 
 515) 186 
 
 International Ocean Tel. Co. v. Saunders (32 Fla. 434- 21 L R A 
 
 810) .'...■ 230 
 
 Irwin V. Dearman (11 East 23) 216 
 
 Isaacs V. Railroad Co. (47 N. Y. 122; 7 Am. Rep. 418) 13 
 
 Isenheart v. Ordean (3 Colo. App. 162) 353 
 
 Island Coal Co. v. Risher (13 Ind. App. 98; 40 N. B. Rep. 906) 83 
 
 Iven's Appeal (33 Pa. St. 237) 520 
 
 Jack V. Dankwardt (85 111. 333) 160 
 
 Jackson v. Noble (54 la. 641; 7 N. W. Rep. 88) 263 
 
 Jackson Co. Comrs. v. Nichols (139 Ind. 611; 38 N. B. Rep. 526) 81 
 
 Jaques v. Railroad Co. (41 Conn. 61) 60 
 
 James v. Emmett Mining Co. (55 Mich. 335) 431, 432, 444 
 
 James v. Richmond, etc., Rd. Co. (92 Ala. 231) 364, 427 
 
 Jamison v. Railway Co. (42 N. Y. Supp. 915 [1896]) 463 
 
 Jefferson Co. Sav. Bk. v. Bborn (84 Ala. 529) 354 
 
 Jeffersonville, etc., R. R. Co. v. Riley (39 Md. 568) 284, 421 
 
 Jewell V. Railway Co. (40 Leg. Int. 36) 128 
 
 Jewell V. Union Passenger R. R. Co. (Pen. Sup. Ct., 1883) 91 
 
 Jockers v. Borgman (29 Kas. 109; 44 Am. Rep. 625) 262 
 
 Johnston v. Bouton (35 Neb. 898: 53 N. W. Rep. 995) 213 
 
 Johnson v. Castleman (2 Dana, Ky., 378) 13 
 
 Johnson v. Drisbow (47 Mich. 59; 10 N. W. 79) 
 
 185, 188, 191, 203, 266, 216 
 Johnson v. East Tenn., Virginia & Ga. Rd. Co. (90 Ga. 810; 17 S. E. 
 
 Ren 121 ) ^ 
 
 Johnson V. Holyoke (105 Mass. 80) 21, 65, 155 
 
 Johnson v. Manhattan Ry. Co. (52 Hun 111) 121 
 
 Johnson v. Railroad Co, (58 la. 348) • • ■ °l° 
 
 Johnson V. Railway Co. (31 Minn. 283) • ■ • • • • ■ • 433 436 
 
 Johnson V. Railway Co. (47 Minn. 430; 50 N. W. Rep. 473) 69, 64, 88 
 
 Johnson v. Railway Co. (96 Mo. 340; 9 Am. St. Rep. 351) 1^7 
 
 Johnson v. Railway Co. (97 Mo. 647) • ■ • • ■ • ■ • ■ • • ••••;■• 
 
 '"' Td'^ cas''^"^. '".!''.'''': .*'.'■ .'.' "": . 'mlsT^n^: m 
 
 Johnson V. Railroad Co. (56 Vt. 707) 459 
 
 Johnson v. Railroad Co. (4 N. Y. Supp. 848) »' 
 
 Johnson v. Railroad Co. (4 Exch. 367) *''» 
 
xlviii TABLE OF CASES. 
 
 Pag% 
 
 Johnson v. Schultz (74 Mich. 75; 41 N. W. Rep. 865) 259, 263 
 
 Johnson v. Wells, Fargo Co. (6 Nev. 224; 3 Am. Rep. 245) 
 
 65, 62, 155, 161, 266, 483, 484 
 
 Johnston v. Railroad Co. (7 O. S. 336) 377, 391 392, 440 
 
 Joliet V. Johnson (71 111. App. 423) 146 
 
 Joliet, A. & N. R. Co. v. Velie (36 111. App. 450; 26 N. B. Rep. 1086) 
 
 131, 147 
 
 Joliet St. Ry. Co. v. Call (143 111. 177-182) 466, 469, 483 
 
 Joliet V. Conway (17 111. App. 577) 286, 287, 291, 436 
 
 Jones V. Belt (8 Houst, Del., 562) 21 
 
 Jones V. Greaves (26 Ohio St. 2) 460 
 
 Jones V. Portland (88 Mich. 598; 50 N. -W. Rep. 731; 16 L. R. A. 
 
 437) 83 
 
 Jones V. Railroad Co. (128 U. S. 443) 512 
 
 Jones V. Railway Co. (122 Mo. 666; 46 Am. St. Rep. 514; 26 L. 
 
 R. A. 718) -. ; 128 
 
 Jones V. Turpin (6 Heisk., Tenn., 181) 352 
 
 Jones V. Utica & B. R. Co. (40 Hun 349) 300, 302 
 
 Jones V. White (90 Ind. 255) 433 
 
 Jordan v. Railroad Co. (138 Mass. 425) 59 
 
 Jordan v. Railway Co. (9 N. Y. Supp. 506) 149 
 
 Jordan v. Railway Co. (16 Daly, N. Y., 130) 148 
 
 Joslin V. Grand Rapids (50 Mich. 516; 45 Am. Rep. 54) 
 
 13, 17, 41, 51, 62 
 
 Joslin V. Grand Rapids Ice Co. (53 Mich. 322) 
 
 41, 51, 52, 58, 435, 436, 461 
 Judice V. Railway Co. (47 La. Ann. 255; 16 So. Rep. 816) 164 
 
 Kansas City, F. S. & G. Rd. Co. v. Daughtry (88 Tenn. 721) 365 
 
 Kansas City, F. S. & G. R. Co. v. Kier (41 Kan. 661; 13 Am. St. Rep. 
 
 311; 21 Pac. Rep. 770) : 87, 148 
 
 Kansas City, F. S. & M. R. Co. v. Stoner (49 Fed. Rep. 209; 1 C. C. 
 
 A. 231) 71 
 
 Kansas City, M. & B. R. Co. v. Lachey (Ala., 21 S. Rep. 444) 136 
 
 Kansas, etc., R. Co. v. Pointer (9 Kan. 620) 489 
 
 Kansas Pac. Rd. Co. v. Cutter (19 Kan. 83) 376, 3t7, 393, 400 
 
 Kansas Pac. Rd. Co. v. Lundin (3 Colo. 94) Ill, 443 
 
 Kansas Pac. R. R. Co. v. Peavey (29 Kan. 169) 516 
 
 Kansas & Pac. R. R. Co. v. Ward (4 Colo. 30) 512 
 
 Kansas Pac. R. Co. v. Miller (2 Colo. 442) . . '.- 376, 393 
 
 Kalen v. Railroad Co. (18 Ind. App. 202; 47 N. E. Rep. 694) 172 
 
 Kalfur V. Broadway Ferry & M. Ave. R. Co. (54 N. Y. Supp. 503) ... 338 
 
 Kane v. Johnston (9 Bosw., N. Y., 154) 60 
 
 Kane v. Mitchell Trans. Co. (35 U. S. 581) 426 
 
 Kane v Railroad Co. (132 N. Y. 160; 30 N. E. Rep. 256) 65, 69 
 
 Kane v. Railroad Co. (128 U. S. 91) 512 
 
 Kane v. Railway Co. (85 Ga. 858) 100 
 
 Kane v. Traction Co. (186 Pa. St. 145) 496 
 
 Karr v. Parks (44 Cal. 49) 170 
 
 Kaufman v. Fye (99 Tenn. 145; 42 S. w^. Rep. 25) 254 
 
 Kay V. Railway Co. (65 Pa. St. 269) 503 
 
 Kean v. Railroad Co. (61 uld. 154) 491 
 
 Kear v Garrison (7 C. D. O. 515; 13 C. C. O. R. 447) 
 
 181, 257, 264, 361 
 
 Keep V. Railroad Co. (9 Fed. Rep. 625) 15, 124 
 
 Keller v. Gillman (93 Wis. 9, 12; 66 N. W. Rep. 800) 303, 308 
 
 Kelley v. Cent. Rd. Co. (5 McCrary, ^. S., 653) 460 
 
TABLE OF CASES. xlix 
 
 Kelley v. Chic, etc., Rd. Co. (60 Wis. 381) . "^T^^V 
 
 Kelley v. Highfield (15 Ore. 2 w ) ... Itl 
 
 Kelley v. Howell (41 Ohio St. 438) .... 512 
 
 Kelley V. New York, N. H. « H. R. Co. (168 Mass! 'sOS;" 38 l'.'r A 
 
 631; 46 N. E. Rep. 1063) 297 2W ^ni ^nt 
 
 Kelley v. Railway Co. (70 ..io. 604) ' ' ^^ ' 460 
 
 Kelley v. Railway Co. (48 Fed. Rep. 663) ... ' 39s 
 
 Kelley v. Railway Co. (168 Mass. 308) 308 
 
 Kelley v. Rochester (15 N. Y. Supp. 29) 517 
 
 Kelley v. Rogers (21 Minn. 146) 500 
 
 Kelley v. Silver Spring Co. ( 12 R. I. 112) 443 
 
 Kellney v. Railroad Co. (101 Mo. 67) 512 
 
 Kellogg V. Railway Co. (79 N. Y. 72) 493 
 
 Kelly V. Partington (5 Barn. & Ad. 645) 182 
 
 Kendall v. Albia (73 la. 241; 34 N. W. 833) 25, 27, 71, 158, 160 
 
 Kennard v. Burton (25 Me. 29; 43 Am. Dec. 249) '....' ' 81 
 
 Kennedy v. Busse (60 111. App. 440) 39 
 
 Kennedy v. Chicago & St. P. R. Co. (57 Minn. 227; 58 N. W ReD 
 
 878) :...; 129 
 
 Kennedy v. Railroad Co. (35 Hun, N. Y.) 402 
 
 Kennedy y. Railway Co. (7 N. Y. Supp. 221) 1.26 
 
 Kennedy v. Sugar Refining Co. (125 Mass. 90; 28 Am. Rep. 214) 
 
 267, 402 
 
 Kennedy v. Whittaker (81 111. App. 605) 139 
 
 Kennon v. Gilmer (9 Mont. 108; 22 Pac. Rep. 448) 148 
 
 Kennon v. Gilmer (131 U. S. 22) 156, 520 
 
 Kentucky Cent. R. Co. v. Ackley (87 Ky. 278; 12 Am. St. Rep. 480) 
 
 21, 64 
 Kentucky Cent. Ry. Co. v. Ryle (18 Ky. L. Rep. 862; 18 S. W. Rep. 
 
 938) 87, 143, 146, 160 
 
 Kentucky, etc., Rd. Co. v. Dills (4 Bush, Ky., 222) 5 
 
 Kern v. Bri dwell (119 Ind. 226; 12 Am. St. Rep. 409) 466, 473 
 
 Kerr v. Forgue (54 111. 482; 5 Am. Rep. 146) 5, 71, 158, 458 
 
 Kershaw v. Snowdon (36 O. S. 181, 184) 520 
 
 Kerwhacker v. Railroad Co. (3 Ohio St. 372; 20 Cent. Ed.) 445 
 
 Kessler v Butler (53 N. Y. 612) 48, 53 
 
 Kessler v. Smith (66 N. C. 154) 309, 487, 394 
 
 Kester v. Telegraph Co. (55 Fed. Rep. 603) 247 
 
 Ketchum v. Railroad Co. (38 La. Ann. 777) 141 
 
 Keyes v. Cedar Falls (107 Iowa 509; 78 N. W. 227) 87, 111, 134 
 
 Keyes" v. Railway Co. (36 Minn. 290) 266. 268 
 
 Keyser v. Railway Co. (66 Mich. 390) 446, 451, 454, 457 
 
 Kiefer v. Railroad Co. (12 N. Y. App. Div. 28) 404 
 
 Kiel V. Chartlers Val. Gas Co. (131 Pa. St. 466) 342 
 
 Kiff V. Yoemans (86 N. Y. 324; 40 Am. Rep. 543) 352 
 
 Killian v. Railway Co. (79 Ga. 234) 393 
 
 King V. Oshkosh (75 Wis. 517; 44 N. W. Rep. 745) 82 
 
 Kinney v. Crocker (18 Wis. 74) •■•;;• o'c,- '.Vr,' 1 1I 
 
 Kinney v. Folkerts (84 Mich. 616) 21, 64, 88, 107, 108 
 
 Kinney v. Springfield (35 Mo. App. 97) 474, 475 
 
 Kirby v. Commonwealth (77 Va. 681) *»* 
 
 Kirk V. Scally (79 111. App. 67) 1*^ 
 
 Kissel V. Butler (53 N. Y. 612) »* 
 
 Klelgel V. Aitken (94 Wis. 432; 35 L. R. A. 249) - -gg " 4i- 44 'eg 72 
 
 Klein V. Jewett (26 N. J. Eq. 474) 1 65, 88, 293, 294,' 297 
 
 Klein v. Railroad Co. (50 Iowa 656) • 
 
1 TABLE OF CASES. 
 
 Page. 
 
 Klein v. Railroad Co. (54 N. Y. Sup. Ct. 164) 51, 60 
 
 Klein V. Thompson (19 Ohio St. 569) 20„25, 26 
 
 Klemm v. Railway Co. (28 N. Y. S. 861) 417 
 
 Klepsch V. Donald (4 "Wash. St. 436) 365, 375, 416 
 
 Kline v. Telegraph Co. (4 Dec. Ohio 224) 247 
 
 Klutts V. Railroad Co. (75 Mo. 642; 11 A. & B. Rd. Cas. 639) 
 
 36, 51, 64, 129 
 
 Knapp V. Railway Co. (71 Iowa 41; 32 N. W. Rep. 18) 
 
 87, 92, 93, 100, 111 
 
 Knifer v. McConnell (30 N. Y. 285) 254 
 
 Knight V. Railroad Co. (108 Pa. St. 250; 56 Am. Rep. 206) 438 
 
 Knight V. Railroad Co. (110 N. C. 58) 506 
 
 Knowles v. Crampton (55 Conn. 336; 11 Atl. Rep. 593) 501 
 
 Knowlton v. Railroad Co. (59 Wis. 278) 498 
 
 Koch, Ernestine v. The OriHamme (3 Sawy., XJ. S. C. C. 397) 170 
 
 Kock V. Oregon Steamboat Co. (2 C. L. J. 473) 127 
 
 Koehne v. Railway Co. (52 N. Y. Supp. 1088) 146 
 
 Koener v. Oberly (56 Ind. 284; 26 Am. Rep. 34) 263 
 
 Koetter v. Railroad Co. (59 Hun N. Y., 623) 69 
 
 Koetter v. Railroad Co. (13 N. Y. Supp. 458) 65, 71, 75, 132, 451 
 
 Kolb V. O'Brien (86 111. 210) 5 
 
 Kolling V. Bennett (10 C. D. 0'. 81; 18 C. C. O. 425) 257, 263 
 
 Kolzem V. Broadway & S. A. R. Co. (20 N. Y. Supp. 700) 213 
 
 Kraut V. Railway Co. (160 Pa. St. 327) Ill 
 
 Kuhn V. Chic, etc., Ry. Co. (74 Iowa 137) 346, 511 
 
 Kujek V. Goldman (150 N. Y. 176; 34 L. R. A. 156) 10, 298, 361 
 
 Kupersohmid v. Electric Ry. Co. (74 Mo. App. 438) 32 
 
 Kutner v. Fargo (20 Misc. Rep., N. Y. ) 355 
 
 Lacas v. Railway Co. (92 Mich. 412; 52 N. W. Rep. 745) 
 
 21, 25, 28, 83, 250 
 Laclede Fire Brick Mfg. Co. v. Hartford Boiler Inspection & Ins. 
 
 Co. (9 C. C. A. 1) 505, 515 
 
 Ladd V. Foster (31 Fed. Rep. 827) 370, 398 
 
 Lafitte V. Railway Co. (43 La. Ann. 34; 12 L. R. A. 337) 185 
 
 Lafourche Packet Co. v. Henderson (94 Fed. Rep. 871; 36 C. C. R. 
 
 519) 86, 136 
 
 Laing v. Colder (8 Pa. St. 479) ^. 32, 62 
 
 Lake Brie & West. Rd. Co. v. Acres (108 Ind. 548; 9 N. B. 453) 516 
 
 Lake Erie & W. Rd. Co. v. Arnold (7 Ind. App. 297; 34 N. E. Rep. 
 
 742) 150 
 
 Lake Erie, etc., Rd. Co. v. Christlson (39 111. App. 495) 185 
 
 Lake Erie, etc., Rd. Co. v. Fix (88 Ind. 381; 45 Am. Rep. 464) 
 
 185, 188 
 Lake Erie & W. Rd. Co. v. Mugg (132 Ind. 168; 31 N. E. Rep. 564) . . 375 
 Lake Shore & M. S. Ry. Co. v. Ehlert (10 C. D. O. 443; 19 C. C. O. 
 
 177) '. 393 
 
 L. S. & M. S. Ry. Co. V. Franz (127 Pa. St. 297; 4 L. R. A. 389) 
 
 41, 43 65, 509 
 Lake Shore & M. S. Ry. Co. v. Gager (4 C. D. O. 260; 12 O. C. C. 695) 
 
 64, 88, 137 
 
 Lake Shore & M. S. Ry. Co. v. Godwin (12 C. D. O. 539) 436 
 
 Lake Shore & M. S. Ry. Co. v. Hundt (41 111. App. 220) 137, 155 
 
 Lake Shore & M. S. Ry. Co. v. Johnson (135 111. 641) 64, 69, 75 
 
 Lake Shore & M. S. Ry. Co. v. Prentice (147 U. S. 107) 355, 358 
 
 L S. & M. S. Ry. Co. v. Rosen weig (113 Pa. St. 519; 6 Atl. Rep. 
 
 545) 4, 292, 354, 356, 357, 515 
 
TABLE OF CASES. H 
 
 Page. 
 
 Lake Shore & M. S. Ry. Co. v. Ryan (70 111. App. 45) 134 
 
 Lake Shore & M. S. Ry. Co. v. Scofield (1 C. D. O. 500) 17 
 
 Lake Shore & M. S. Ry. Co. v. Starkey (6 C. D. 0. 5) 132 
 
 Lake Shore & M. S. Ry. Co. v. Teed (6 C. D. O. 339; 14 0. C C. R. 
 
 355) 150 
 
 Lake Shore & M. S. Ry. Co. v. Topllff (6 C. D. O. 234) 132 
 
 Lake Shore & M. S. Ry. Co. v. Winslow (4 C. D. O. 242; 10 0. C. 
 
 C. 193) 64, 88, 147 
 
 Lake Shore & M. S. Ry. Co. v. Yokes (5 C. D. 0. 599) 442 
 
 Lake St. El. Ry. Co. v. Johnson (70 111. App. 413) 322 
 
 L. & W. R. R. Co. V. Jones (128 Pa. St. 308) 307 
 
 Laker v. Railroad Co. (15 Ore. 220) 13 
 
 Lamb v. Harbaugh (105 Cal. 680; 35 Pac. Rep. 56) 311 
 
 Lamberton v. Traction Co. (60 N. J. L. 456; 38 Atl. Rep. 384) 161 
 
 Lambkin v. Railway Co. (33 Moak Eng. 727) 131 
 
 Lammiman v. Railway Co. (71 N. W. 153; 3 Am. Neg. Rep. 52) 
 
 28, 311 
 
 Lampkins v. Railway Co. (42 La. Ann. 997; 8 So. Rep. 530) 146 
 
 Landa v. Obert (45 Tex. 539) 500 
 
 Lange v. Schoettler (115 Cal. 388) 365, 401 
 
 Langworthy v. Green Township (88 Mich. 207) 98 
 
 Langworthv v. Township of Green (95 Mich. 93) 464 
 
 Laning v. Railroad Co. (49 N. Y. 521) 434, 455 
 
 Lansford v. Walker (8 South. Rep. 386) 21 
 
 Lapleine v. Morgan's L. & T. R. & S. S. Co. (40 La. Ann. 661; 1 
 
 L. R. A. 378) 4, 63, 195, 279, 281, 286 
 
 Larkin v. Railway Co. (19 N. Y. Supp. 479) 127 
 
 Larmon v. Dist. of Columbia (5 Mickey 330) 41, 51 
 
 Larson v. Chase (47 Minn. 307; 14 L. R. A. 85; 28 Am. St. Rep. 370) 
 
 155, 210, 235 
 
 Larzelere v. Kerchgessner (73 Mich. 276) 264 
 
 La Salle v. Porterfleld (38 111. App. 553) 133 
 
 La Salle v. Porterfleld (138 111. 114) 41, 64 
 
 Latremouille v. Railway Co. (63 Vt. 336) ■ • 503 
 
 Laughlin v. Eaton (54 Me. 156) ■ • 300, 302 
 
 Laughlin V. Street Ry. Co. (80 Mich. 154; 44 N. W. Rep. 1049) .... 81 
 
 Lavery v. Crooke, (52 Wis. 612; 83 Am. Rep. 768) ^ib 
 
 Lawrence v. Cook (56 Me. 187; 96 Am. Dec. 443) ^5* 
 
 Lawrence v. Railroad Co. (29 Conn. 390) .... ... . • -^ . ... . • -^34. 160 
 
 Lawrence, etc., R. R. Co. v. Lett (11 Can. Sup. Ct. 422; 26 Am. & 
 
 Epg. R. Cases 454) ^*"' %l 
 
 Lawton v. Railroad Co. (29 Conn 390) ••••••• ;•■; ,^1 
 
 Lawyer v. Fritcher (130 N. Y. 239; 14 L. R A^ 700) 361 
 
 Leach y. Leach (11 Tex. App. 399; 33 S^W. 703) 188, 189 
 
 Leahy v. Davis (121 Mo. 227; 25 S. W. Rep. 941) 4^| 
 
 Leahy v. Railway Co. (65 Cal. 150) *"f 
 
 Lansford v. Walker (8 South. Rep. 386) 
 
 Leaver v. Adams (N. H., 19 Atl. Rep. 776) 
 
 Lansford v. Walker (8 South. Rep. 386)^ . ^^^ 
 
 LeeT.'Detroit"BrTdge''& Iron Co. (62 Mo. 565). 
 Lee V Publishers, etc. (55 Mo. App. 390; 1 Am. 
 Lee V. Railway Co. (110 Cal. 118) ^. ...._.• •■• 
 Lee V. Railway Co. (34 Minn. 225; 25^. W. Rep. 399) . ^^ ^^ 
 
 L,ee V. I'UDilsnera, eic. i,uu i>iv^. ^^t^- "--' - 5 12 
 
 Lpp V Railway Co. (110 Cal. 118) • " ' ' ' ■„V,,\ aqo 
 
 Lee v.- Railway Co. (34 Minn. 225; 25 N W. Rep. 399) 433 
 
 Lee V. Telegraph Co. (51 Mo. App- 375 ) . VoV ■i'i2 ' 433 '445 
 
 Lee V Troy City Gas Light Co. (98 N. Y. 115) . ■ • - ■ *31, 432, 4dd, 44» 
 
 lee I: Union Ry. Co. (12 R. I. 383; 34 Am. Rep. 668) 431 
 
 Leeds v. Amherst (20 Beav. 239) 
 
lii TABLE OF CASES. 
 
 Page. 
 
 Leeds v. Gas Light Co. (90 N. Y. 26) 22, 51 
 
 Leeland v. Stone (10 Mass. 459) 12 
 
 Le Fann v. Malcolmson (8 Ir. L. R. 418) 208 
 
 Leger v. Warren (62 O. S. 500) 51, 54 
 
 Legg V. Britton (64 Vt. 652; 24 Atl. Rep. 1016) 409 
 
 Lehigh Valley Iron Co. v. Rupp (100 Pa. St. 95) 309, 374, 388 
 
 Lehman v. Brooklyn (29 Barb. 234)... 412 
 
 Lehman v. Railway Co. (47 Hun, N. Y., 107) 174 
 
 Lehmer v. Railway Co. (47 Hun, N. Y., 355) 172 
 
 Leiter v. Kinnaire (68 111. App. 558) 425 
 
 Lemser v. Mfg. Co. (70 Mo. App. 209) 128 
 
 Leonard v. Steamboat Co. (84 N. Y. 48; 38 Am. Rep. 491) . .369, 437, 438 
 
 Leucker v. Steileu (89 111. 545; 31 Am. Rep. 104) 215 
 
 Lewis V. State (29 Tex. App. 201; 25 Am. St. R. 720) 457 
 
 Lewis V. Telegraph Co. (57 S. C. 325; 35 S. E. Rep. 556) 247 
 
 Llerman v. Railway Co. (82 Wis. 286; 52 N. W. 591) 381 
 
 Liese v. Meyer (143 Mo. 547; 45 S. W. Rep. 282) 254 
 
 Lincoln v. Bechman (23 Neb. 677) 93 
 
 Lincoln v. Railway Co. (23 Md. 425) 41, 51, 54, 57, 500 
 
 Lincoln v. Staley (32 Neb. 63) 144 
 
 Lincoln v. Walker (18 Me. 234) 445 
 
 Lincoln v. Walker (18 Neb. 244j 433 
 
 Lincoln Ice Co. v. Johnson (37 111. App. 453) 64 
 
 Linderbaugh v. Crescent Mining Co. (9 Utah 163) 452 
 
 Llndsey v. Danville (46 Vt. 144) 59 
 
 Lindvall v. Woods (44 Fed. Rep. 85i)) 65 
 
 Llnsley V. Bushnell (15 Conn. 225) 65 
 
 Linton Coal, etc., Co. v. Persons (15 Ind. App. 69) 92, 100 
 
 Llpe V. Elsenlerd (32 N. .Y. 229) 216 
 
 Lister v. Campbell (Tex. Civ. App. 46 S. W. Rep. 876) 351 
 
 Little V. Tingle (26 Ind. 168) 12 
 
 Little Miami R. Co. v. Wetmore (19 Ohio St. 110) 502, 510 
 
 Little Rock, etc., Rd. Co. v. Barker (33 Ark. 350; 34 Am. Rep. 
 
 44) 29, 30, 329, 376, 388, 390, 393, 402, 412, 460 
 
 Little Rock & Fort S. R. Co. v. Cagle ( 53 Ark. 347 ; 44 Am. & Eng. 
 
 R. R. Cases 536) 140 
 
 Little Rock & Fort S. R. Co. v. Harkey (Ark., 15 S. W. Rep. 456) 
 
 140, 323 
 Little Rock & F. S. Rd. Co. v. Leverett (48 Ark. 333; 3 Am. St. 
 
 Rep. 230) 389, 432, 445, 454, 456 
 
 Little Rock & Ft. Scott Ry. Co. v. Voss (Ark., 18 S. W. Rep. 172) . . 424 
 
 Littlejohn v. Railroad Co. (148 Mass. 478) 512 
 
 Littlewood v. Major (89 N. Y. 24) 408, 409, 497 
 
 Livingston v. Bauchens (34 111. App. 544) 12 
 
 Livingston v. Burroughs (33 Mich. 511) 206 
 
 Lloyd V. Railway Co. ( 53 Mo. 509) 468 
 
 Locke V. Sioux City R. Co. (46 Iowa 109) 479 
 
 Lockwood V. Railway Co. (98 N. Y. 523) 397 
 
 Lockwood V. Railway Co. (7 N. Y. Supp. 663) 286, 292 
 
 Loeser v. Humphrey (41 Ohio St. 378) 36 
 
 Logansport v. Justice (74 Ind. 378) 436, 461 
 
 Logan V. Telegraph Co. (84 111. 468) "218, 229 
 
 Logwood V. Railway Co. (23 Fed. Rep. 318) 200 
 
 London v. Cunningham (20 N. Y. Supp. 882) 59 
 
 Long V. Morrison (14 Ind. 595) 266, 296, 395, 595 
 
TABLE OF CASES. lii 
 
 Page. 
 
 Lord V. Mobile (21 South. Rep. 366) 61 
 
 Lord V. Pueblo Smelting & Refining Co. (12 Colo. 390; 21 Pac. Rep. 
 
 148) 457 
 
 Lorence v. Ellensburgh (City) (13 Wash. 341; 43 Pac. Rep. 20) 339 
 
 Louis V. Babcock (18 Johns. 443) , 300 
 
 Louis V. State (29 Tex. Civ. App. 201; 25 Am. St. Rep. 720) 446 
 
 Louisville & N. R. Co. v. Abell (14 Ky. Law Rep. 239) 71 
 
 Louisville & N. Ry. Co. v. Ballard (85 Ky. 307; 7 Am. St. Rep. 
 
 600) 342, 354, 351 
 
 Louisville & N. R. Co. v. Ballard (88 Ky. 159; 2 L. R. A. 694) 
 
 188, 191, 357 
 
 Louisville & N. R. R. Co. v. Brooks (83 Ky. 129) 422 
 
 Louisville & N. R. Co. v. Chism (20 Ky. Law Rep. 584; 47 S. W. 
 
 Rep. 217) 88,338 
 
 Louisville & N. R. Co. v. Constantine (14 Ky. L. Rep. 432) 87 
 
 Louisville & N. Ry. Co. v. Creighton (20 Ky. L. Rep. 1808; 50 S. 
 
 W. Rep. 227) 415 
 
 Louisville & N. Rd. Co. v. Davis (12 South. Rep. 780) 513 
 
 Louisville & N. Ry. Co. v. Foley (94 Ky. 220; 21 S. W. 866) 452 
 
 Louisville & N. Rd. Co. v. Fox (11 Bush, Ky., 495) 68, 515 
 
 Louisville & N. R. R. Co. v. Graham (98 Ky. 688) 425 
 
 Louisville & N. Rd. Co. v. Hall (87 Ala. 708) 510 
 
 Louisville & N. R. Co. v. Hurt (101 Ala. 34; 13 South. 130) Ill 
 
 Louisville & N. R. Co. v. Jones (83 Ala. 376) 348 
 
 Louisville & N. R. Co. v. Kelley, Admx. (Ky., 38 S. W. Rep. 852 
 
 111, 115 
 
 Louisville & N. R. Co. v. McEwan (21 Ky. L. 489; 51 S. W. Rep 
 
 619) 13" 
 
 Louisville & N. R. Co. v. Mitchell (83 Ky. 329; 8 S. W. Rep. 706) . . 
 
 88, 131 
 
 Louisville & N. R. R. Co. v. Moore (83 Ky. 675) 143 
 
 Louisville & N. R. Co. v. Mothershed (97 Ala. 261; 12 South. 714) . . Ill 
 
 Louisville & N. Ry. Co. v. Orr (91 Ala. 548) ■ • ■ - 364, 393 
 
 Louisville & N. R. Co. v. Ray (101 Tenn. 1; 46 S. W. Rep. 554) . . 139 
 Louisville & N. R. R. Co. v. Stacker (86 Tenn. 343; 6 Am St Rep. 
 
 g40) '-^< °' • 
 
 Louisville' & N. Ry. Co. v. Stock (20 Ky. L. Rep. 1808; 50 S. W. ^^^ 
 
 Loui^vflle'& N.' R.' R.' Co.v: ShivelV (17ky.' L.Rep.'902; ■l8S.' W. 
 
 Rpn <)^4^ 
 
 LouisviUe, etc.,' R.' Co. v. Binion (107 Ala. 64?; 18 S. Rep. 75^) .^.^. ^^^ 
 
 Louisville, etc., Rd. Co. v. Buck (116 Ind. |B«;39 A- St Rep.^333)^ ^^^ 
 
 Louisville, C. & L. Co. v. Case (9 Bush Ky., 728) ■ • ■ 375 
 
 Louisville C. & L. R. Co. v. Mahoney (7 Bush Ky., 235) HI, 347 
 
 Louisville, etc., R. R. Co. v. Coniff (90 Ky 560) 398 
 
 Louisville, etc., R. R. Co. v. Barle (94 Ky. 368) . . . .^. -••„••• ^g^ 
 Louisville etc., R. Co. v. Johnson (ff ^l^' 204: 25 Am. St. 35) . . 491 
 T„.,)„„)ii^ ot^ R R, Co. V. Jones (108 Ind. 551) ^78, /»&, ^s" 
 
 398 
 491 
 290 
 513 
 
 Louisville! etc., R. R. Co. v. Jones (108 Ind 
 Louisville, etc., R. Co. v. Mitchell (87 Ky 
 
 TouisviUe etc R. R. Co. v. Northington (91 Tenn. 56) ^»» 
 
 Louisville; etc.'; R. Co. v. Sullivan (81 Ky. 624; 50 Am. R. 186) .... 491 
 
liv TABLE OF CASES. 
 
 Page. 
 
 Louisville, etc., R. R. Co. v. Trammall (93 Ala. 350) 393 
 
 Louisville, etc., Rd. Co. v. Whitman (79 Ala. 328) 156, 185 
 
 Louisville, etc., R. R. Co. v. Willis (83 Ky. 57) 13 
 
 Louisville, etc., R. Co. v. Winderlick (81 Ind. 105) 515 
 
 Louisville, etc., Rd. Co. v. Wolfe (80 Ky. 82) 432, 444 
 
 Louisville, etc., Rd. Co. v. Woodson (134 U. S. 614) 503, 505 
 
 Louisville, etc., Rd. Co. v. Wright (115 Ind. 378; 7 Am. St. Rep. 
 
 432) 458, 459, 501 
 
 Louisville, etc., W. R. Co. v. Zoeffinger (107 111. 199) 491 
 
 Louisville, etc., R. R. Co. v. Rush (127 Ind. 545) 395 
 
 Louisville, etc., Rd. Co. v. Sanford (117 Ind. 225; 19 N. E. 777) 433 
 
 Louisville, N. A. & C. R. Co. v. Creek (130 Ind. 130; 14 L. R. A. 
 
 733) 317, 320 
 
 Louisville, etc., Rd. v. Palvey (104 Ind. 409; 3 N. B. 397) 
 
 34, 35, 3p, 64, 83, 87, 93, 192, 278, 279, 286, 288, 459, 4^93, 516 
 Louisville, N. A., etc., R. Co. v. Frawley (110 Ind. 18; 9 N. E. Rep. 
 
 594) 93, 498 
 
 Louisville, etc., Rd. Co. v. Goody-Koontz (119 Ind. Ill; 12 Am. St. 
 
 Rep. 383) 370, 386, 432, 460 
 
 Louisville, etc., R. R. Co. v. Wolf (128 Ind. 347; 25 Am. St. Rep. 
 
 436) 343 
 
 Louisville, etc., Ry. Co. v. Wood (113 Ind. 544) 464 
 
 Louisville, N. A. & C. R. Co. v. Miller (141 Ind. 533; 37 N. R 
 
 Rep. 343) 83, 111 
 
 Louisville, N. A. & C. R. Co. v. Pedigo (108 Ind. 481) 513 
 
 Louisville, N. A. & Chic. R. R. Co. v. Snyder (117 Ind. 435; 3 L. R. 
 
 A. 434; 10 Am. St. Rep. 60) 281, 459 
 
 Louisville, N. A. & C. R. Co. v. Wood (113 Ind. 544; 14 N. B. Rep. 
 
 572) 82, 87 
 
 Louisville, "N. 0. & Tex. R. Co. v. Thompson (64 Miss. 584; 57 Am. 
 
 Rep. 20; 30 Am. & Bng. R. R. Cases) 88, 142 
 
 Louisville, So. Ry. Co. v. Minogue (90 Ky. 369; 29 Am. St. Rep. 
 
 378) 85,99,516 
 
 Lounsbury v. Bridgeport City (66 Conn. 300; 34 Atl. Rep. 93) 294 
 
 Lowry v. Railway Co. (68 Fed. Rep. 827) 133 
 
 Loyacans v. Jurgens (50 La. Ann. 441; 23 So. Rep. 717) 152 
 
 Luby Case (17 N. Y. 131) 449 
 
 Lucas V. Flinn (35 Iowa 9) 64, 235 
 
 Luck V. Ripon (52 Wis., 196) 436 
 
 Lund V. Tyngsborough (9 Cush. 36) 448, 454 
 
 Lunsford v. Deitrick (86 Ala. 250; 11 Am. St. Rep. 37) 185, 210, 213 
 
 Lueted v. Railroad Co. (71 Wis. 391) 495 
 
 Lutcher & Moore Lumber Co. v. Dyso'n (Tex. Civ. App.; 30 S. W. 
 
 Rep. 61) 21, 25, 45 
 
 Lyman v. Boston & Me. R. Co. (11 L. R. A. 364; 20 Atl. Rep. 976) . . 485 
 Lyme v. Western U. Tel. Co. (123 N. C. 129; 5 Am. Neg. Rep. 
 
 85) 238 
 
 Lynch v. Knight (9 H. L. Cas. 577) 1,72, 230, 247, 577 
 
 Lynch v. Metropolitan Elevator Co. (90 N. Y. 77; 43 Am. Rep. 
 
 141) , A 
 
 Lynne v Telegraph Co. (123 N. Car. 129; 5 Am. Neg. Rep. 85) 218 
 
 Lyon V. Railway Co. ( 142 N. Y. 298) 466 
 
TABLE OF CASES. Iv 
 
 Page. 
 
 Lyons V. Railway Co. (25 N. Y. S. 372) 420 
 
 Lyons v. Railroad Co. ( 57 N. Y. 489) 36, 37 
 
 McAdory v. Railroad Co. (94 Ala. 272) 420 
 
 McAldery v. Railway Co. (10 oo. Rep. 507) 371 
 
 McBride v. McLaughlin (5 Watts. 375) 363 
 
 McCarthy v. Nisken ( 22 Minn. 90) 352, 353 
 
 McCarthy v. Railway Co. (18 is.ans. 46; 26 Am. Rep. 742) .' 440 
 
 McCooey v. Railway Co. (79 Hun 225) 148 
 
 McCoy V. Street Ry. Co. (56 Wis. 88; 59 N. W. Rep. 453) 172 
 
 McCoy V. Street Ry. Co. (88 Wis. 56) 141, 161 
 
 McDermot v. Railway Co. (85 la. 180; 52 N". W. Rep. 181) 421 
 
 McDevitt V. St. Paul (66 Minn. 12; 68 N. W. Rep. 178) 294 
 
 McDonald v. Railway Co. ( 26 la. 124) Ill, 294, 476 
 
 McDonald v. Savoy (110 Mass. 49) .485 
 
 McDonald v. Walter (40 N. Y. 551) 518 
 
 McFarlane v. Moore (1 Tenn. 174) 7 
 
 McGarrahan v. Railway Co. (151 Mass. 211; 50 N. E. Rep. 610; 4 
 
 Am. Neg. Rep. 284) 96, 24, 25, 36 
 
 McGehe v. Claridy (96 Ga. 755) 139 
 
 McGee v. Holland (27 N. J. L. 86) 210 
 
 McGinnis v. Railway Co. ( 21 Mo. App. 399) 192 
 
 McGown V. Railroad Co. (20 S. W. Rep. 80) 309 
 
 McGraw v. Railway Co. (18 W. Va. 361; 9 Am. & Eng. Rd. 
 
 Cases 188) 443 
 
 McHugh V. Schlosser (159 Pa. St. 480; 39 Am. St. Rep. 699) .. 119, 374 
 
 Mclntyre v. Giblin (131 U. S.'l34) , 156, 160 
 
 Mclntyre v. Railway Co. (47 Barber 515) 422 
 
 Mclntyre v. N. Y. Cent. R. Co. (37 N. Y. 287) 
 
 17, 41, 48, 5L 54, 370, 376, 381, 397 
 McKay v. New England Dredging Co. (92 Me. 454; 43 Atl. Rep. 
 
 49) 425 
 
 McKeever v. Railway Co. (59 Cal. 294) S6 
 
 McKeigue v. Janesville (68 Wis. 50; 31 N. W. 298) Ill, 401, 456 
 
 McKey v. Hyde Park (134 IT. S. 84) 506 
 
 McKelvey v. Railway Co. (84 Iowa 455; 51 N. W. Rep. 172) 375 
 
 McKenna v. Railroad Co. (58 N. Y. Supp. 462) 22 
 
 McKinley v. Chicago, R. I. & P. Ry. Co. (44 la. 314; 24 Am. Rep. 
 
 748) 21, 64, 89, 155, 160, 185, 192, 235 
 
 McKinney v. Western Stage Co. (4 Iowa 420) 302 
 
 McLain County Coal Co. v. McVey (38 111. App. 158) 386 
 
 McLaughlin v. Railway Co. (113 Cal. 190; 45 Pac. Rep. 839) . . . . 32 
 
 McLaughlin v. Corry (77 Pa. St. 109; 18 Am. Rep. 432) 
 
 21, 65, 89, 154, 161, 436 
 
 McLean v. Scripps (52 Mich. 214) 5, 17 
 
 McLeod V. Ginther (80 Ky. 399) 453, 454 
 
 McLeod V. Railroad Co. (58 Vt' 727) 438 
 
 McMahon v. Eau Claire Waterworks (95 Wis. 640; 70 N. W. 829) . . 126 
 
 McMahon v. City of New York (33 N. Y. 642) 372 
 
 McMahon v. Field (45 L. T., N. S., 381) 272 
 
 McMahon v. Railroad Co. (39 Md. 438) 21, 65, 155, 160 
 
 McMahon v. Sankey (133 111. 636; 24 N. E. Rep. 1027) 262 
 
 McMahon v. Walsh (43 N. Y. Sup. Ct 36) •■• 137 
 
 McMillen v. Union Press Brick Works (6 Mo. App. 434) 139, Ibl 
 
 McMurty v. Blake (45 Neb. 213) 2 
 
 McNaier v. Railroad Co. (4 N. Y. Supp. 310) ^^ 
 
Ivi TABLE OP CASES. 
 
 Page. 
 McNamara v. Village, etc., (62 Wis. 207; 51 Am. Rep. 722) . . 49, 85, 279 
 
 McNarra v. Railroad Co. (41 Wis. 75) 512 
 
 McNeil V. Lyons' (4 Am. Neg. Rep. 728; 40 Atl. Rep. 831) 518 
 
 McPadden v. Railway Co. (44 N. Y. 478) 443 
 
 McPherson v. Railway Co. (97 Mo. 253) 379 
 
 McPherson v. Ryan (57 Mich. 33) 250 
 
 McQueen v. Pulgham (27 Tex. 463) 205 
 
 McQuigan v. Railway Co. (129 N. Y. 50; 14 L. R. A. 446) 466 
 
 McSweyn v. Railway Co. (27 N. Y. St. Rep. 363) 466, 468 
 
 McWilliams v. Bragg (3 Wis. 424) 363 
 
 McWilliams v. Hoban (42 Md. 56) 213 
 
 Mack V. Railway Co. (52 S. Car. 323; 40 L. R. A. 679; 29 S. B. Rep. 
 
 905) 164, 167, 176, 181, 219 
 
 Mackoy v. Railroad Co. (18 Pe^. Rep. 236) 65, 508 
 
 Macon, etc., Rd. Co. v. Moore (99 Ga. 229) Ill, 112 
 
 Macon & West. Ry. Co. v. Winn (26 Ga. 250) 127 
 
 Madden v. Railroad Co. (50 Mo. App. 666) 25 
 
 Magee v. Railway Co. (78 Cal. 430; 12 Am. St. Rep. 69) 432, 444 
 
 Maguire v. Railway Co. (115 Mass. 239) 491 
 
 Maher v. Central Park Co. (67 N. Y. 52) 515, 518 
 
 Maher v. Phila. Tr. Co. (181 Pa. St. 391) 381 
 
 Maher v. Traction Co. (181 Pa. St. 391) 78 
 
 Mahoney v. Belford (132 Mass. 393) 185, 205, 208, 207 
 
 Mahony v. Cook (26 Pa. St. 342) 498 
 
 Mahood V. Coal Co. (8 Utah 85; 30 Pac. 149) 138, 139 
 
 Malcolm v. Hawley (46 Cal. 409) 5, 160, 489 
 
 Malloy V. Bennett (15 Fed. Rep. 371) 157, 160 
 
 Malone v. Railway Co. (152 Pa. St. 390) 89, 121, 122 
 
 Malott V. Shimer (153 Ind. 35; 54 N. E. Rep. 101) 423 
 
 Maney v. Railroad Co. (40 111. App. 105) 31, 400, 402, 373 
 
 Mangune & Tomfercaro Co. v. Clymonts (10 C. D. O. 427) 515, 516 
 
 Manley v. Railway Co. (42 N. Y. Supp. 1076) 148 
 
 Manning v Port Henry, etc., Co. (91 N. Y. 665; 27 Hun 219) 404, 463 
 
 Mansfield Coal Co. v. McEnery (91 Pa. St. 185; 36 Am. Rep. 662) . : 374 
 
 Marble v. Chapin (132 Mass. 255) 205, 207 
 
 March v. Walker (48 Tex. 372) 374, 494 
 
 Marcott v. Railway Co. (47 Mich. 1 ) 515. 
 
 Mardock v. Railroad Co. (133 Mass. 75) 287 
 
 Mariene v. Dougherty (46 Cal. 26) 427 
 
 Marietta & Cin. Rd. Co. v. Picksley (24 Ohio St. 654) 505, 506, 512 
 
 Marietta Iron Works v. Lattimer (25 O. S. 621) 520 
 
 Marion v. Railway Co. ( 64 la. 568) '87 
 
 Markham v. Russell (12 Allen, Mass., 573) 205 
 
 Marks V. Railway Co. (14 Daly 61) 122 
 
 Marquette, Hough, etc., R. Co. v. Hanford (39 Mich. 537) 491 
 
 Marshall v. Kennedy (50 Wis. 645) 346 
 
 Marshall v. Railway Co. (48 111. 475) 492 
 
 Martin v. Petit (117 N. Y. 124; 22 N. B. Rep. 566) 510 
 
 Marvin v. Sager ( Ind., 44 N. E. 310) 516 
 
 Mary Lee Coal & Ry. Co. v. Chamhliss (97 Ala. 171; 11 S. 897) 
 
 111, 113 
 
 Mason v. Ellsworth (32 Me. 271) 21, 65, 155 
 
 Masters v. Warren (27 Conn. 293) 156, 160, 185, 245 
 
 Masterton v. Mt. Vernon (58 N. Y. 391) 41, 51, 52 54, 56, 121 
 
 Mather v. Rillston (156 U. S. 391) 127 
 
TABLE OF CASES. Ivii 
 
 Page. 
 
 Matteson v. Railroad Co. (35 N. Y. 493; 91 Am. Dec. 67) 
 
 43, 82, 161, 300, 308 
 
 Matthews v. Warner (29 Gratt. 570) 365, 395 
 
 Mattis V. Traction Co. (6 Pa. Dist. Rep. 94) 132 
 
 Maurerman v. Railroad Co. (41 Mo. App. 348) 327, 330 
 
 May.v. Inhabitants, etc. (11 Met. 442) ' 431 
 
 Mayer v. Liebman (44 N. Y. Supp. 1067) 134 
 
 Mayhew v. Burns (103 Ind. 328)' 29, 31, 402, 408, 489 
 
 Mayor v. Duke (72 Tex. 445) 352 
 
 Mayor of Birmingham v. Lewis (92 Ala. 352) 123 
 
 Maysville, etc., R. R. Co. v. Herrick (13 Bush, Ken., 122) 143 
 
 Meads v. Martin (84 Mich. 306) 25 
 
 Meagher v. Driscoll (99 Mass. 281; 96 Am. Dec. 751) 210, 235 
 
 Means v. Hyde (19 La. Ann. 479) 5 
 
 Meddinger v. Railway Co. (39 N. Y. S. 613) 420 
 
 Meeks v. St. Paul, Minn. (66 N. W. 960) 516 
 
 Meese v. Fond du Lac (48 Wis. 323; 14 N. W. 406) 302 
 
 Meeter v. Railroad Co. (63 Hun, N. Y.; 18 N. Y. Supp. 561) 98 
 
 Meidel v. Anthis (71 111. 241) 263 
 
 Meier v. Railroad Co. (64 Pa. St. 225) 442 
 
 Meller v. Taylor (4 Burr. 2345) 6 
 
 Mellor V. Railroad Co. (105 Mo. 455; 10 L. R. A. 36; 14 S. W. Rep. 
 
 758) 291 
 
 Memphis & C. Rd. Co. v. Whitford (44 Miss. 466; 7 Am. Rep. 699) 
 
 2L 63, 7L 155, 158, 161 
 
 Memphis & C. R. oo. v. Womack (84 Ala. 149; 4 So. Rep. 618) 494 
 
 Mentz V. Railway Co. (22 Robertson, N. Y., 356) 140 
 
 Mentzer v. Armour ( 18 Fed. Rep. 373) 495 
 
 Mentzer v. Telegraph Co. (93 Iowa 752; 28 L. R. A. 76) 
 
 181, 218, 228 
 
 Mercer v. Corbin (117 Ind. 450; 10 Am. St. Rep. 76) 125 
 
 Merest v. Harvey (5 Taunt. 442) 363 
 
 Merrell v. McMahon (7 Dec. 138) 372 
 
 Merkle v. Bennington (58 Mich. 156) 456 
 
 Metallic Compression Casting Co. v. Railroad Co. (109 Mass. 277) . . 4 
 
 Metropolitan St. Ry. Co. v. Johnson (91 Ga. 466) 59 
 
 Metropolitan West Side El. Co. v. Kersey (80 111. App. 301) ...... 338 
 
 Mewhirter v. Hatten (42 la. 288; 20 Am. Rep. 618) 300, 301 
 
 Mexican Central R. Co. v. Milten (13 Tex. Civ. App. '^^p ^- -- ^g,, 
 
 Mexican Nat. R. R. Co. v. Finch (8 Tex. Civ. App. 409; 27 S. W. ^^^ 
 
 Mexican Nat^R. Co'. ■v.Mussetle'(86 Tex.' 708; 24 L. R. A. 642) .... 135 
 Meyers v. Reynolds (5 Dec. O. 619; 3 N. P. a 186) . ■■ — ■■■■■ ■ „ ■ ^^^ 
 Miami, etc., R. R. Co. v. Bailey (37 Ohio St. 104) 469, 470, 471, ^^^ 
 
 Mich. Centr. R. R. Co. v. Coleman (28 Mich 440) ^ ■ • 304 
 
 Mich. Centr. Rd. Co. v. Gilbert (46 Mich^l76) . .^^^ 434, 455 
 
 Miller V. Boone Co. (95 Iowa 5; 63 N. W^ Rep. 352 .^. ^ .^^69, 322 
 Miller V. Ft. Lee Park & Steamboat Co. (73 Hun 150; 25 N. Y. Supp. ^^ 
 
 Miller V. Gleason VlOa C.' b.' 20;' 18 O.' C. C.'r:374) .'.V.' 257; 264, 361 
 
 Miller v. Morgan (143 Mass. 28) • • • • • ■ • g 
 
 Miller V. Railroad Co. (26 N. Y. Supp. 162) .-■ 9<i. i^^ 
 
 Miller V. Railroad Co. (54 N. Y. Supp. 606) 65, 128, 168 
 
 Miller v. Railway Co. (128 Ind. 97) 
 
Iviii TABIvE OF CASES. 
 
 Page. 
 
 Miller v. Railway Co. (69 Tex. 739) 227 
 
 Miller v. Railway Co. (20 Oregon 285; 26 Pac. Rep. 70) 494 
 
 Miller v. Roy (10 La. Ann. 231) 185 
 
 Miller v. Steamboat Co. (25 N. Y. Supp. 924) 69, 70 
 
 Milliman v. Railway Co. (66 N. Y. 642) 491 
 
 Mills V. Railway Co. (40 Atl. Rep. 1114; 1 Mary., Del., 269) 41, 269 
 
 Milwaukee, etc., R. R. Co. v. Arms (1 Otto 489) 17 
 
 Milwaukee & St. Paul R. Co. v. Arms (91 U. S. 489) .. 3, 4, 514, 515 
 
 Milwaukee, etc., Ry. Co. v. Finsey (10 Wis. 388) 13 
 
 Milwaukee & St. Paul Rd. Co. v. Kellogg (94 U. S. 469) 12, 181 
 
 Minneapolis Thresh. Maeh. Co. v. Regur (51 Neb. 402) 25 
 
 Mississippi & Tr. Co. v. Ayres (84 Tenn. 725) Ill, 115 
 
 Mississippi Centr. Rd. Co. v. Caruth (51 Miss. 77) 513 
 
 Missouri, Pac. R. R. Co. v. Aiken (71 Tex. 373) 130 
 
 Missouri Pac. R. R. Co. v. Bond (2 Tex. Civ. App. 104) 396 
 
 Missouri Pac. R. R. Co. v. Crenshaw (71 Tex. 349; 9 S. W. Rep. 
 
 262) 149 
 
 Missouri Pac. R. R. Co. v. Evans (71 Tex. 361) 491 
 
 Missouri Pac. R. R. Co. v. Haines (115 U. S. 512) 354 
 
 Missouri Pac. R. R. Co. v. Henry (75 Tex. 220) 426 
 
 Missouri Pac. R. R. Co. v. Jones (75 Tex. 151; 16 Am. St. Rep. 879) 
 
 15, 139 
 Missouri Pac. R. R. Co. v. Johnson (Kan., 53 Pac. Rep. 129) .. 43, 519 
 
 Missouri Pac. R. R. Co. v. Johnson (72 Tex. 95, 101) 474 
 
 Missouri Pac. R. Co. v. Kaiser (82 Tex. 144; 18 S. W. Rep. 305) ... 185 
 
 Missouri Pac. R. R. Co. v. Lee (70 Tex. 496) 331 
 
 Missouri Pac. R. R. Co. v. Lehmberg (75 Tex. 61; 12 S. W. Rep. 
 
 838) 418 
 
 Missouri Pac. R. R. Co. v. Lewis (24 Neb. 848; 2 L. R. A. 75) 409 
 
 Missouri Pac. R. R. Co. v. Lyle (57 Tex. 505) 22, 52, 489 
 
 Missouri Pac. R. R. Co. v. Martino (2 Tex. Civ. App. 634; 18 S. W. 
 
 Rep. 1066) - 151 
 
 Missouri Pac. R. R. Co. v. Mitchell (75 Tex. 78) 98 
 
 Missouri Pac. R. R. Co. v. Palmer (76 N. W. Rep. 169) 29 
 
 Missouri Pac. R. R. Co. v. Platzer (73 Tex. 117) 512 
 
 Missouri Pac. R. R. Co. v. Railway Co. (41 Fed. Rep. 316) 140 
 
 Missouri Pac. R. R. Co. v. Shuford (Tex., 10 S. W. Rep. 408) 130 
 
 Missouri Pac. R. R. Co. v. Hauer (Tex. Civ. App.; 33 S. W. Rep. 
 
 1010) 138 
 
 Missouri Pac. R. R. Co. v. McElree (Tex. Civ. App.; 41 S. W. 843) 
 
 63, 154 
 
 Missouri Pac. R. R. Co. v. Weaver (16 Kan. 456) 160 
 
 Missouri, K. & T. Ry. Co. v. Clair (51 S. W. Rep. 666) Ill 
 
 Missouri, K. & T. Ry. Co. v. Cook (12 Tex. Civ. App. 203; 33 S. W. 
 
 Rep. 669) 123, 151 
 
 Missouri, K. & T. Ry. Co. v. Hauer (43 S. W. Rep. 1078) 138 
 
 Missouri, K. & T. Ry. Co. v. Hines (18 Tex. Civ. App. 580; 40 
 
 S. W. Rep. 152) Ill 
 
 Missouri, K. & T. Ry. Co. v. HufE (Tex. Civ. App.; 32 S. W. Rep. 551) 
 
 89 127 
 Missouri, K. & T. Ry. Co. v. Kirkland (Tex. App.; 34 S. W. Rep! 
 
 186) 141 
 
 Missouri, K. & T. Ry. Co. v. McGlamery (Tex. Civ. App.; 34 S. W. 
 
 Rep. 395) 161 
 
 Missouri, K. &. T. Ry. Co. Parker (49 S. W. Rep. 717; 20 Tex. 
 
 Civ. App. 470) 63, 89 127, 128 
 
TABLE OF CASES. 
 "sTeV ".'."■ " "■"" "■ ^^""^^ ^'^®^- C!lv. App.; 41 S. W. Rep. 
 
 Missouri, K. & T. Ry. V. Ranson (Tex. Civ. App.; 41 S. ^^^'"^ 
 
 Missouri, K. & T. R. Co. V. TonahilV '(3 Neg." Rep.' 287) Ill 
 
 Missouri, K. & T. Rd. Co. v. Vance (41 S. W 167) c, rr 
 
 Missouri, K. & T.R"y;co: "v.Warren Vtbx.' Civ. App.;' 39" s! W Rep ^^^ 
 
 o*'^-' 1 fii 
 
 Missouri, K. & T. R. Co. v. Weaver (16 Kan. 456) oT 
 
 Mitchell v. Railroad Co. (70 Hun 387) 1^2 
 
 Mitchell v. Railway Co. (45 N. E. Rep. 354) IK^ 
 
 Mitchell V. Rochester R. Co. (151 N. Y. 107; 34 L. R.' A.'78i)' ^ '■'.'.'.'. 
 
 Moakler v. Railroad Co. (18 Or. 189) ^^*' ^"" ^''^' glo 
 
 Mobile & Montgomery Rd. Co. v. Ashcraft (48 Ala. 15;' '49 Ala'.'3()5) 
 
 Mobile, etc., R. Co. v. George (94 Ala. 199) .. 63 156 
 
 Mobile Furniture Com. Co. v. Little (108 Ala. 399) '351 
 
 Mobile & O. R. R. Co. v. Watly (69 Miss. 145) VW m 
 
 Monk V. New Utrecht (104 N. Y. 552) ' 49? 
 
 Monroe v. Railroad Co. (84 Cal. 515; 24 Pac. Rep 303) 390 
 
 Montgomery, etc., R. Co. v. Mallette (92 Ala. 209) ... 11, 12, 48,' '61', 
 
 Moody v. McDonald (4 Cal. 297) ' 5 
 
 Moon v. Railroad Co. (46 Minn. 106; 24 Am. St. Rep. 104) ! 512 
 
 Moody V. Osgood (50 Barb. 628) 28 
 
 Moore v. Adams (2 Chit. R. 198) .............. lOl 
 
 Moore v. Kalamazoo (109 Mich. 176; 66 N. W. Rep. 1089) ......... 100 
 
 Moore v. Railroad (47 Iowa (688) 21 64 97 155 
 
 Morgan v. Durfee (69 Mo. 469; 33 Am. Rep. 50) 487 '488 348 
 
 Morgan v. Fremont Co. (92 la. 644; 61 N. W. Rep. 231) .' ' 128 
 
 Moran v. Goodwin (130 Mass. 153; 39 Am. Rep. 443) 262 
 
 Morgan v. Curley (142 Mass. 107) 41, 135 
 
 Morgan v. Dallas Co. (Iowa, 72 N. W. Rep. 304) ! 29 
 
 Morgan v. Railroad Co. (95 Cal. 501; 17 L. R. A. 71) . . 3, 5 67 131 
 
 216, 310, 329, 370, 388, 390, 393, 395, 396, 437, 412, 413', 516 
 Morning Jpurnal Ass'n v. Rutherford (51 Fed. Rep. 513; 16 L. R. A. 
 
 803) 362 
 
 Morris v. East Haven (41 Conn. 252) 485 
 
 Morris v. Railroad Co. (26 Fed. Rep. 22) 326 
 
 Morris v. Railroad Co. (45 la. 29) ... 12, 21, 64, 67, 68, 96, 155, 
 
 436, 513, 515 
 
 Morris v. Railway Co. (26 N. Y. Supp. 342) 322 
 
 Morris v. Railway Co. (65 la. 727; 54 Am. Rep. 39) 439 
 
 Morrisey v. Ingham (111 Mass. 63) 81 
 
 Morrison v. McAtee (23 Ore. 530) 112 
 
 Morrison v. Railroad Co. (38 N. Y. Supp. 393) 34, 39, 88, 107, 108 
 
 Morrison v. Railway Co. (148 N. Y. 182; 42 N. B. Rep. 579) 510 
 
 Morrison v. Railway Co. ( 8 N. Y. Supp. 436) 140 
 
 Morse v. Auburn & Syracuse R. Co. (10 Barb. 621) 3, 65, 76 
 
 Morse v. Duncan (14 Fed. Rep. 396) 160, 161 
 
 Morseman v. Railroad Co. (10 N. Y. Supp. 105) 24 
 
 Morton v. Telegraph Co. (53 Ohio St. 431) 247 
 
 Moskowitz V. Lighte (68 Hun, N. Y., 102) 412 
 
 Mott V. Detroit G. H. & M. Ry. Co. (120 Mich. 127; 17 N. W. Rep. 
 
 3) 113 
 
Ix TABIvE OF CASES. 
 
 Page. 
 
 Mowry V. Chaney (4a la. 609) 300, 302 
 
 Moyer v. Gordon (113 Ind. 282) 156, 185 
 
 Mt. Adams & E. P. Inc. Plane R. Co. v. Isaacs (10 C. D. O. 49; 18 C. 
 
 C. 0. 177) 89, 93, 96, 100 
 
 Mt. Adams & E. P. Ry. v. Wysong (6 C. D. O. 28; 8 C. C. O. R. 211) 
 
 28, 295 
 Mt. Adams & B. P. Ry. Co. v. Lowrey (20 C. C. A. 596) 502, 503, 504, 515 
 Mulcahey v. Washburn Car Wheel Co. (145 Mass. 281; 1 Am. St. 
 
 458) 267, 398 
 
 Mulcairns v. Janesvllle (67 Wis. 24) Ill, 381, 420, 488, 490 
 
 Muldowney v. Railroad Co. (32 Iowa 176) 506 
 
 Muldowney v. Railroad Co. (36 Iowa 462) ... .21, 31, 64, 155, 160, 398 
 
 Muldraugh's Hill, C. & C. T. Co. v. Maupin (79 Ky. 101) 21 
 
 Mulford V. Clewell (21 Ohio St. 191) 257, 262, 263, 264 
 
 Mulhade v. Street Ry. Co. (30 N. Y. 370) 464, 467 
 
 Mullens v. Railway Co. (127 Mass. 86) 496 
 
 Munn V. Illinois (94 U. S. 113) 199 
 
 Munro v. Railway Co. (95 Cal. 510) 371 
 
 Munro v. Dredging Co. (84 Cal. bl5; 18 Am. St. Rep. 248) 
 
 297, 309, 329, 382 
 
 Murdock V. Express Co. (167 Mass. 549; 1 Am. Neg. Rep. 263) 
 
 43, 48, 55, 58, 94 
 Murdock V. Railroad Co. (137 Mass. 293; 8 Am. Neg. Cases, 416, 
 
 note) 185 
 
 Murlaugh v. New York, C. & H. R. Co. (23 N. Y. S. 636) 71 
 
 Murphy v. Hughes (Del., 40 Atl. Rep. 187) 4 
 
 Murphy v. Pollock (15 Irish C. L. 224) i 478 
 
 Murphy v. Railroad Co. (66 Barb. 125) 81 
 
 Murphy v. Railway Co. (23 Fed. Rep. 637) 200 
 
 Murphy v. Railroad Co. (29 Conn. 496) 78, 365, 398 
 
 Murphy v. Railroad Co. (88 N. Y. 445) ' 30 
 
 Murray v. Railroad Co. (47 Barb., N. Y., 196) 65, 155 
 
 Murray v. Railroad (7 N. Y. Supp. 900) 143 
 
 Murray v. Railway Co. (101 Mo. 236; 13 S. W. Rep. 817; 20 Am. St. 
 
 Rep. 601) 24, 147 
 
 Murray v. Railway Co. (15 N. Y. Supp. 900) .' 65 
 
 Murray v. Usher (117 N. Y. 542; 23 N. E. Rep. 564) ..30, 31, 402, 403 
 
 Murtaugh v. Railway Co. (3 u. Y. Supp. 483) 137 
 
 Musser v. S')treet Ry. Co. (15 Pa. Co. Ct. Rep. 430) 141 
 
 Myers v. Moore (3 Ind. App. 226; 28 N. E. 724) 128 
 
 Myers v. City & Co. of San Francisco (42 Cal. 215) 413 
 
 Mynning v. Detroit L. & N. R. Co. (59 Mich. 257) 309, 393, 400 
 
 Nadau V. Lumber Co. (76 Wis. 120; 20 Am. St. Rep. 29) 78, 145 
 
 Nagel V. Railway Co. (75 Mo. 653; 10 Am. & Eng. Rd. Cas. 702) 
 
 3, 36, 327, 386, 415 
 
 Nagle V. Mattison (34 Pa. St. 48) X7 
 
 Nappanee v. Ruchman (7 Ind. App. 361) ' 21 27 
 
 Nash V. Sharp (19 Hun, N. Y., 365) 51 52 58 94 
 
 Natchez, etc., Ry. Co. V. Cook (63 Miss. 38) '3O4 
 
 Nash & Chat. Rd. Co. v. Smith (6 Heiskell, Tenn., 174- IBAm & 
 
 Eng. Cases 469) ' ' 329 
 
 Nashville, etc., R. R. Co. v. Collins (6 Heisk.] Tenn 174) 78 
 
 Nashville, etc., R. R. Co. v. Prince (2 Heisk. Tenn 580) 78 
 
 Nashville v. Stevens (9 Helsk., Tenn., 12) . . . ' 394 
 
TABLE OF CASES. jxi 
 
 Nave V. Ala G. S Ry. Co. (94 Ala. 264; 54 Am. & Eng. Rd. Caser^'"' 
 
 151; 11 South. Rep. 391) /./, 
 
 Nebraska City v. Campbell (67 U. S. 590) V. Vg 102 
 
 Neeb v. Hope (111 Pa. St. 145; 2 Atl. Rep. 568) ' i;in 
 
 Needham v. Railway Co. (38 Vt. 294) 40q 
 
 Nehrbras v. Railroad Co. (62 Cal. 320; 14 Am. fiEng." Rd! Cases 
 
 ^^ .„^'^*'^ ■ "I" " ■ • :;; 326, 388, 395, 412, 512 
 
 Neill V. Watson (39 Tex. 375) , ij.^, uj.^ 
 
 Neilson v. Paper Co. (75 Wis. 579) . ...........' ' ^37 
 
 Nelson v. Oregon Ry. & Nav. Co. (13 Ore. 141) 513 
 
 Nelson y. Railroad Co. (104 Micb. 582; 62 N. W. Rep. 993) 417 
 
 Nelson v. Railway Co. (78 Tex. 621; 14 S. W. Rep 1021) 372 439 
 
 Nesbit V. Garner (75 Iowa 314; 26 L. R. A. 152) ... ' '320 
 
 Neuman v. Railway Co. (50 N. Y. Sup. Ct. 412) 466 
 
 Neuman v. Railway Co. (18 Jones & Spencer 412) ............ 468 
 
 New Jersey R. R. Trans. Co. v. West (32 N. J. L. 91 ) ! 128 
 
 New Jersey Express Co. v. Nichols (32 N. J. L. 166) . . . '. . . . . . '. . . . [ 
 
 41. 48, 49, 51, 56, 58,' 96, 436 
 New Omaha Thompson-Houston Electric Light Co. v. Baldwin (87 
 
 N. W. Rep. 29) ' 503 
 
 New Orleans & C. R. Co. v. Schneider (60 Fed. Rep 210- 8 C C A 
 
 571) '....;..■..: 141 
 
 New Orleans, J. & G. N. R. Co. v. Allbritton (38 Miss. 342- 75 Am 
 
 Dec. 98) 346, 442 
 
 New Orleans, J. & G. N. Rd. Co. v. Bailey (40 Miss. 395) 354 
 
 New Orleans, J. & Gr. N. R. Co. v. Hurst (36 Miss. 660; 74 Am. 
 
 Dec. 785) 348, 352, 488 
 
 New Orleans & St. L. & C. R. Co. v. Burt (59 Miss. 200) 350 
 
 Newell V. Whitcher (53 Vt. 589; 38 Am. Rep. 703) 154 
 
 N. Y. L. E. & W. Rd. Co. v. Euches (127 Pa. St. 297) 506 
 
 New York, etc., Tel. Co. v. Drybury (35 Pa. St. 298; 78 Am. Dec. 
 
 338) 221 
 
 N. Y. Dry Dock Co. v. Mclntosu ( 5 Hill. 290) 51 
 
 New York, C. 0. St. L. Ry. Co. v. Luebeck (54 111. App. 551) 339 
 
 New York, C. & St. L. Ry. Co. v. Woods (6 C. D. O. 350; 9 C. C. 0. 
 
 322) , 433 
 
 Newark News, etc., R. Co. v. Campbell (Ken., 25 S. W. Rep. 267) . . 139 
 Newman v. Alabama Gr. S. & C. R. Co. (38 Fed. Rep. 819) . . 21, 286, 291 
 
 Newman v. Skein (75 Mich. 402) 185 
 
 Newberry v. Lumber & Mfg. Co. (100 la. 441; 69 N. W. Rep. 743) . . 
 
 129, 168, 171 
 
 Newport News & M. V. R. Co. v. Griffin (92 Tenn. 694) 229 
 
 Nichols V. Brabagon (94 Wis. 549; 69 N. W. Rep. 342) 
 
 64, 69, 158, 168, 185 
 Nichols V. Crystal Plate Glass Co. (126 Mo. 55; 28 S. W. Rep. 991) . 135 
 
 Nichols V. Railroad Co. (30 Hun 437) 458 
 
 Nickerson v. Bigelow (62 Fed. Rep. 900) 416 
 
 Nicholson v. Railroad Co. (22 Conn. 74.) 516, 517 
 
 Nickermon v. Harriman (38 Me. 277) 304 
 
 Nieto V. Clark (1 Cliff, U. S. C. C, 145) 185, 188, 190, 194 
 
 Nies V. Broadhead (75 Hun 255) , 479 
 
 Nixon V. Ludlam (50 111. App. 273) 293, 294, 300 
 
 Noble V. Ames Manufacturing Co. (112 Mass. 492) 4 
 
 Nolan V. N. Y. N. H. Rd. Co. (53 Conn. 461) 502 
 
 Nones v. Northhouse (46 Vt. 587) 21, 41, 65, 154 
 
 Norris v. Litchfield (35 N. H. 271) 498 
 
Ixii TABLE OF CASES. 
 
 Page. 
 
 Norris v. Railway Co. (21 Fed. Rep. 22) 309 
 
 ' Norristown v. Moyer (67 Pa. St. 355) 501 
 
 North Am. Aoc. Assn. v. Woodson (64 Fed. Rep. 691) 446, 447, 450 
 
 Northern Centr. Ry. Co. v. Mills (61 Md. 355) 293 
 
 North Chicago St. Ry. Co. v. Anderson (70 111. App. 336) 324 
 
 North Chicago St. Ry. Co. v. Broms (62 111. App. 127) ■ 135 
 
 North Chicago St. Ry. Co. v. Brown (76 111. App. 654) 87 
 
 North Chicago St. Ry. Co. v. Fitzgibbons (79 111. App. 632) 142 
 
 North Chicago St. R. Co. v. Shreve (70 111. App. 666) 291, 322 
 
 North Chicago St. Ry. Co. v. "Wrixson (51 111. App. 307 388, 414 
 
 North Chicago St. Ry. v. Zeiger (78 111. App. 463) 33 
 
 North Eastern Rd. Co. v. Chandler (84 Ga. 37) Ill, 141 
 
 Northern Pac. R. R. Co. v. Freeman (83 Fed. Rep. 82) 380 
 
 Northern Pac. R. Co. v. Urlin (158 U. S. 271) 82, 446, 447 
 
 North Penn. R. Co. v. Com. Nat. Bank (123 U. S. 727) 505 
 
 North Penn. Rd. Co. v. Kirk (90 Pa. St. 15) 386, 489, 493 
 
 Norfolk & W. R. Co. v. Ampey (93 Va. 108; 25 S. E. Rep. 226) 141 
 
 Norfolk, etc., Rd. Co. v. Ferguson (79 Va. 241) 49| 
 
 Norfolk & Western R. Co. v. Lipscomb (90 Va. 137; 20 L. R. A. 807) 358 
 Norfolk & Western Rd. Co. v. Marpole (Va., 7 Am. Neg. Rep. 171, 
 
 cases cited) 161 
 
 NorthTup V. McGill (27 Mich. 234) 5 
 
 Nudd V. Burrows (91 U. S. 426) 509 
 
 O'Brien v. Loomis (43 Mo. App. 29) 51, 54, 60, 91 
 
 O'Brien v. McGlenchy (68 Maine 557) 13 
 
 O'Callaghan v. Rhode (84 Cal. 489) 424 
 
 O'Connell v. Railway Co. (106 Mo. 452; 17 S. W. Rep. 494) 142, 516 
 
 O'Connor v. Railway Co. (27 Minn. 166; 38 Am. Rep. 288) 446, 457 
 
 O'Connor v. Railway Co. (94 Mo. 150; 4 Am. St. Rep. 364) ... 432, 445 
 
 O'Donnell v. Sugar Refining Co. (48 N. Y. Supp. 640) 88, 139 
 
 O'Donnell v. Railway Co. (42 Fed. Rep. 579) 339 
 
 O'Fallen Coal Co. v. Laquet (89 111. App. 13) 415 
 
 O'Flaherty v. Railway Co. (54 N. Y. S. 56) 163 
 
 O'Keefe v. Railroad Co. (53 N. Y. Supp. 940) 88, 136, 141, 145 
 
 O'Mara v. Railroad Co. (38 N. Y. 445) 327 
 
 O'Mellia v. Railway Co. (115 Mo. 205) Ill, 376 
 
 O'Neill V. Kinken (8 N. Y. Supp. 554; 55 Hun 608) 71, 73 
 
 O'Neil V. Railroad Co. (59 N. Y. Super. Ct. 123) 65 
 
 O'Neil V. Railway Co. (15 N. Y. Supp. 84) 155, 161 
 
 O'Toole V. Central Park (12 N, Y. Supp. 347) 286, 292, 323 
 
 Oakland, etc., Ry. Co. v. Fielding (48 Pa. St. 320) 268, 327 
 
 Gates V. Railroad Co. (104 Mo. 514; 16 S. W. Rep. 487) 439 
 
 Ocean S. S. Co. v. Matthews (86 Ga. 418; 12 S. B. Rep. 632) 146 
 
 Oelrichs v. Spain (15 Wall. 211) 500 
 
 Ogle V. Barney (8 Term R. 190) 13 
 
 Ogle V. Jones (16 Wash. 319) 136 
 
 Oglesby v. Railway Co. (Mo., 37 S. W. Rep. 829) 145 
 
 Ohio & Miss. Rd. Co. v. Collarn (73 Ind. 261) 513 
 
 Ohio & M. Rd. Co. v. Cosby (107 Ind. 32; 7 N. E. Rep. 373) 
 
 21, 28, 71, 294, 296, 311 
 
 Ohio & Miss. R. Co. v. Dickerson (59 Ind. 317) 5, 26, 48, 62, 64 
 
 Ohio & Miss. Rd. Co. v. Hecht (115 Ind. 443) 280, 285, 457, 458 
 
TABLE OF CASES. jxiji 
 
 Ohio & Miss. Rd. Co. V. Judy (120 Ind. 397) 32, 140 513 51^^78 
 
 Ohio & Miss. Rd. Co, V. Walker (113 Ind. 196; 3 Am St Rep 628) 
 
 Ohio & Miss. Rd. Co. V. Wangelin (43 111. App. 324) *^^' ttt 
 
 Ohio River R. Co. v. Harness (24 W. Va 511) ciq 
 
 Ohliger v. Toledo (10 O. C. D. 762) .... Vn 9R 
 
 Olafield V. Railroad Co. (14 N. Y. 310) '007 
 
 Oldfield V. Railway Co. (3 E. D. Smith N Y 103) 415 
 
 Oliver v. Lavalle (36 Wis. 592) ' ■i^l'Vxi 9S7 
 
 Oliver v. Transfer Co. (3 Ore. 84) '.". ' gi 
 
 Oliver v. North Pac. Tr. Co. (3 Ore 84) 21 
 
 ^^^^^^J- ^^'l7^Z^°- '■^^ ''^'''°- ^^= 47 ^°»- & Eng. R.'r: Cases 
 
 573; 48 N. W. Rep. 445) 249 5^3 
 
 Omaha St. Ry. Co. v. Emminger (57 Neb. 240; 77 N. W. Rep. 675)' 
 
 1 4 ?^ SS 
 
 Omaha & R. V. Ry. Co. v. Ryburn (40 Neb. 87; 58 N. W 541) ' '104 
 Omaha, etc., Ry. Co. v. Chollette (41 Neb. 578) " 452 
 
 Opsahl V. Judd (30 Minn. 126) '. " 389 493 
 
 Osborne v. McMasters (40 Minn. 103; 12 Am. St. Rep. 698) ' 13 
 
 Osborne v. Detroit (32 Fed. Rep. 36) 291 
 
 Oties V. Elec. Co. ( 7 N. Y. Supp. 251) 127 
 
 Ottawa V. Sweedy (65 111. 434) 140 
 
 Owen V. Broekschmitt v 54 Mo. 285) 29 
 
 Owens V. B. & O. Rd. Co. (35 Fed. Rep. 715; 1 L. r! A. 75) 34 496 
 
 Owens V. Railway Co. (95 Mo. 169; 6 Am. St. Rep. 39) .. 286, 469' 470 
 Owens V. People's Passenger Ry. Co. (155 Pa. St. 334) ...... 4, 41 
 
 Pacific Express Co. v. Black (8 Tex. Civ. App. 363) 267 268 
 
 Pacific Express Co. v. Black (Tex. Civ. App.; 27 S. W. Rep. 830) . ' 305 
 
 Packet V. Clough ( 20 Wall. 540) 447 
 
 Paetzlg V. Railway Co. (33 N. Y. Supp. 854) 126 
 
 Page V. Bucksport (64 Me. 51; 17 Am. Rep. 239) 36 
 
 Paige V. Paige (bl Mich. 91) 473 
 
 Paine v. Railroad Co. (45 Iowa 569) 155, 235 
 
 Paine v. Railway Co. (45 Wis. 657) .' 185 
 
 Palmer v. Leader Pub. Co. (7 Pa. Sup. Ct. 594) 518 
 
 Palmer v. Publishing Co. (52 N. Y. Supp. 539) 209 
 
 Palmer v. Railway Co. (3 S. Car. 583) 354 
 
 Palmer v. Railway Co. (92 Me. 399; 44 L. R. A. 673) 210 
 
 Parker v. B. & H. Steamboat Co. (109 Mass. 449) 458 
 
 Parker v. Enslow (102 111. 272) 466, 468, 469, 491 
 
 Parker v. Forehand (99 Ga. 743; 28 S. E. Rep. 400) 254 
 
 Parker v. Jenkins (3 Bush, Ky., 587) 3 
 
 Parker v. Mise (27 Ala. 480; 62 Am. Dec. 776) 347 
 
 Parker v. Portland Pub. Co. (69 Me. 173; 31 Am. Rep. 262) 485 
 
 Parker v. Railroad Co. 1 48 S. C. 364) 21 
 
 Parker v. Railway Co. (93 Mich. 607; 53 N. W. Rep. 834) 520 
 
 Parkhurst v. Mastellar (57 la. 474) 185, 213, 235 
 
 Parrott v. Shearer (17 Mich. 48) 493 
 
 Parshall v. Ry. Co. (35 Fed. Rep. 649) 49, 50, 55, 93, 94 
 
 Parsons v. Harper (16 Gratt. Va., 64) 41 
 
 Parsons v. Railway Co. (94 Mo. 286) 327, 351, 388, 389, 394, 414 
 
 Paschal v. Owen (77 Tex. 583; 14 S. W. 203) 418 
 
 Passenger Ry. Co. v. Young (21 Ohio St. 518) 5 
 
 Patterson v. Wallace (1 Macq. H. L. Cas. 748) 310 
 
Ixiv TABLE OF CASES. 
 
 Page.- 
 
 Paul V. Slason (22 Vt. 231) 6 
 
 Paulmier v. Railway Co. (37 N. J. Law 151) 426 
 
 Peacock v. Oakes (85 Mich. 578; 48 N. W. Rep. 1082) 264 
 
 Peay v. Telephone Co. (64 Ark. 538; 39 L. R. A. 463) 240 
 
 Peck V. New York, N. H. & H. R. Co. (50 Conn. 379) 320 
 
 Peck V. Small (35 Minn. 465) 351 
 
 Peckham Iron Co. v. Harper (41 O. S. 100) 500 
 
 Pegram v. Stortz (31 W. Va. 220; 6 S. E. Rep. 257) 257, 261 
 
 Peltz V. Bichele (62 Mo. 171) 5 
 
 Pence v. Railway Co. (79 Iowa 389; 44 N. W. Rep.; 42 Am. & Bng. 
 
 R. R. Cases 126) 87, 131 
 
 Pendleton St. Ry. Co. v. Rahmann (22 O. S. 446) 520 
 
 Penn., etc., Canal Co. v. Graham (63 Pa. St. 290; 3 Am. Rep. 549) . . 
 
 21, 32, 41, 154, 161 
 
 Pennsylvania Coal Co. v. Nee (Pa. St., 13 Atl. Rep. 841) 332, 388 
 
 Penn. Rd. Co. v. Allen (53 Pa. St. 276) 3, 65, 76, 157, 367, 489 
 
 Penn. Rd. Co. v. Backes (35 111. App. 375) 141 
 
 Penn. Rd. Co. v. Bantom (54 Pa. St. 495) 386 
 
 Penn. Rd. Co. v. Books (57 Pa. St. 339) 3, 15, 21, 41, 65, 76, 
 
 89, 97, 154, 478, 370, 365 
 
 Penn. Rd. Co. v. Butler (57 Pa. St. 335) 15, 374, 379, 394, 487 
 
 Penn. Rd. Co. v. Connell (112 111. 295) 185 
 
 Penn. Rd. Co. v. Dale (76 Pa. St. 47) 49, 89, 94 
 
 Penn. Rd. uo. v. Fortney (90 Fa. St. 323) 512 
 
 Penn. Rd. Co. v. Frana (112 111. 398) 346, 506 
 
 Penn. Rd. Co. v. Graham (63 Pa. St. 290; 3 Am. Rep. 549) 
 
 65, 297, 384, 396, 506, 512, 5lS 
 
 Penn. Rd. Co. v. Henderson (51 Pa. St. 315) 461, 492 
 
 Penn. Rd. Co. v. James (81 Pa. St. 194) 30, 31, 402 
 
 Penn. Rd. Co. v. Kelley (31 Pa. St. 372) ... 4, 13, 266, 268, 329, 386, 
 
 369, 390 
 
 Penn. Rd. Co. v. Krick (47 Ind. 369) 436 
 
 Penn. Rd. Co. v. Lilly (73 Ind. 252) 29, 31, 388, 393, 402, 414, 438 
 
 Penn. Rd. Co. v. Long (94 Ind. 250) 457 
 
 Penn. Rd. Co. v. McClosky (23 tenn. St. 526) 403 
 
 Penn. Rd. Co. v. Marion (104 Ind. 239; 3 N. B. Rep. 874) . . 21, 26, 501 
 Penn. Rd. Co. v. Marion (123 Ind. 415; 18 Am. St. Rep. 330) . . 141, 512 
 
 Penn. Rd. Co. v. Neumeyer (129 Ind. 401) 466, 475 
 
 Penn. Rd. Co. v. Ozier (35 Pa. St. 60) 512 
 
 Penn. Rd. Co. v. Rathgeb (32 Ohio St. 36) 503, 513 
 
 Penn. Rd. Co. v. Roy (102 U. S. 451) 348, 487, 488, 489 
 
 Penn. Rd. Co. v. Righter (42 N. J. L. 180) 503 
 
 Penn. Rd. Co. v. Shay (82 Pa. St. 198) 495 
 
 Penn. Rd. Co. v. Vandever (36 Pa. St. 298) 309, 394 
 
 Penn. Rd. Co. v. Versten (140 111. 637; 15 L. R. A. 798) 87 
 
 Penn. Rd. Co. v. Wilson (Pa. Sup. Ct. Jany. 20, 1890) 77 
 
 Penn. Rd. Co. v. Zebe (33 Pa. St. 318) 326, 327, 400 
 
 People V. Buddensieck (103 N. Y. 487; 9 N. E. Rep. 44) '. 479 
 
 People V. King (110 N. Y. 418; 1 L. R. A. 293) 197, 198, 199, 200 
 
 People V. Simpson (48 Mich. 474) 454 
 
 Peoples Passenger Ry. Co. v. Green (56 Md. 84) 479 
 
 Peoria & P. U. R. R. Co. v. Clayberg (107 111. 614) .485 
 
 Peoria & P. U. R. R. Co. v. O'Brien (18 111. App. 28) 381 
 
 Peoria Bridge Ass'n v. Loomis (20 111. 236; 71 Am. Dec. 263) ... 
 
 5, 13, 21, 64, 87, 99, 155, 160 
 Peoria, D. & E. R. Co. v. Johns (43 111. App. 83) 27 28 
 
TABLE OF CASES. Ixv 
 
 Page. 
 
 Pepper v. Railway Co. (105 Cal. 389) 393 
 
 Peppercorn v. Black River Palls (89 Wis. 38; 46 Am. St. Rep. 818) . 26 
 Per Lord Wensleydale m Lynch v. Knight & Wife (5 H. L. C. 577) 
 
 208 
 
 Perham v. Electric Co. (40 L. R. A. 799) 510 
 
 Perigo V. Railroad Co. (55 Iowa 326) ^ 457, 492 
 
 Perry v. Banking Co. (85 Ga. 193; 11 S. E. Rep. 605 ) 371, 438 
 
 Peterson v. Haffiner (59 Ind. 130; 26 Am. St. Rep. 81) 125 
 
 Peterson v. Knoble (35 Wis. 30) 261, 257 
 
 Petit V. Hudson (2 Re., Ohio, 660) 431 
 
 Petrie v. Railway Co. (29 S. C. 303; 7 S. E. 515) 30, 392, 403 
 
 Phares v. Railway Co. (Ind. App., 50 N. E. Rep. 306) 495 
 
 Phelin v. Kenderline (20 Pa. St. 354) ;.. 215, 216 
 
 Phelps V. Winona, etc., Rd. Co. (37 Minn. 485) 371 
 
 Philadelphia & R. R. Co. v. Adams (89 Pa. St. 31) 509 
 
 Philadelphia & Reading R. Co. v. Anderson (94 Pa. St. 351; 6 Am. 
 
 & Eng. Rd. Cas. 407, note; 39 Am. Rep. 787) 442, 443 
 
 Phil., W. & B. R. Co. V. Anderson (72 Md. 519; 8 L. R. A. 673) . . 503, 512 
 Phil., W. & B. R. R. Co. v. Lehman (56 Md. 209; 40 Am. R. 415) . . 498 
 Phil., W. & B. R. jct. Co. V. Phil. Steam Tow. B. Co. (23 How., U. S. 
 
 209. Cited in 105 U. S. 636 and 125 U. S. 581) 498 
 
 Phil. W. & B. R. R. Co. v. Stebbins (62 Md. 504; 49 Am. R. 628) . . 485 
 
 Philadelphia, etc., R. R. Co. v. Quigley (21 How. 207) 341 
 
 Philadelphia Tr. Co. v. Orbann (119 Pa. St. 37; 12 Atl. Rep. 816) 342, 356 
 
 Phillips V. Hogle (4 Gray 568) 215 
 
 Phillips V. Railroad Co., L. R. (5 Q. B. Div. 78) 15, 21, 23, 
 
 27, 65, 94, 109, 116 
 
 Phillips V. Railroad Co. (4 Queen's B. 406) 5, 49, 50, 160 
 
 Phillips V. Railroad Co. (42 L. T. R., N. S., 6) 41, 42, 131, 513 
 
 Phillips V. So. Western Ry. Co., L. R. (5 Queen's B. Div. 87) 17 
 
 Philo V. Railroad Co. (33 la. 47) 78 
 
 Philpot V. Railroad Co. ( 85 Mo. 164) 388 
 
 Phyfe V. Railway Co. (30 Hun 377) 121 
 
 Pierce v. Connors (20 Colo. 178; 46 Am." St. 270) 386, 388 
 
 Pierce, Receiver, v. Van Dusen (24 C. C. A. 280; 78 Fed. Rep. 693) . . 80 
 
 Pine V. Railway Co. (50 Minn. 144; 16 L. R. A. 347) 358 
 
 Pittsburg, A. & M. Rd. Co. v. Donahue (70 Pa. St. 119) 3, 15, 65, 154 
 
 Pittsburg & C. R. Co. v. Andrews (39 Md. 329; 17 Am. Rep. 568) . . 88 
 Pittsburg, C. & St. L. R. v. Lyon (123 Pa. St. 140; 2 L. R. A. 489) . . 
 
 342, 357 
 Pittsburg, C. & St. L. Rd. Co. v. Sponier (85 Ind. 165) ... 64, 140, 515 
 Pittsburg, etc., Ry. Co. v. Story (63 111. App. 239) ... 5, 12, 15, 155 
 Pittsburg, C. & St. L. R. Co. v. Zipperlein (1 O. C. D. 22; 1 C. C. 36) 
 
 32, 433 
 Pittsburg, C, C. & St. L. R. Co. v. Ensign (6 0. C. D. 616; 10 C C. 
 
 j^ 211) '' 
 
 Pittsburg, C, C."&'st. l! R. Co. v. Montgomery (Ind., 49 N. E. Rep. 
 
 gg2) , '-°" 
 
 Pittsburg F W. & c! R. CoVv. Ruby (38 Ind. 294) .'. 476 
 
 Pmsburl'&L. E. R. CO. v. Blair (5 C. D. O. 366; 11 C. C. O. 579)^ . ^^ ^^ 
 
 Pittsburg & Southern Rd. Co. v. Taylor (184 Pa. St. 306; 49 Am. ^^^ 
 
 Pittsbur^r W. Co. v.' Thompson (82 Fed. Rep. 720) 504 
 
Ixvi TABLE OF CASES. 
 
 Page. 
 Pittsburg, etc., Rd. Co. v. Andrews (39 Md. 329; 17 Am. Rep: 568) 
 
 21, 65, 155, 515 
 
 Pittsburg, etc., Rd. Co. v. Books (57 Pa. St. 339) 489 
 
 Pittsburg, etc., Rd. Co. v. Burton (139 Ind. 357) 425 
 
 Pittsburg, etc., Rd. Co. v. McGrath (115 111. 172; 3 N. B. Rep. 429) 
 
 494 
 
 Pittsburg, etc., R. Co. v. Powers (74 111. 341) 489 
 
 Pittsburg, etc., Rd. Co. v. Russ (67 Fed. Rep. 662; 14 C. C. A. 612) . 185 
 
 Pittsburg, etc. Rd. Co. v. Slusser (19 Ohio St. 157) 354 
 
 Pittsburg, etc., Rd. Co. v. Spoonier (85 Ind. 165) 155, 160 
 
 Pittsburg, etc., Ry. Co. v. Taylor (104 Pa. St. 306) 463 
 
 Pittsburg, etc., R. R. Co. v. Thompson (56 111. 138) 493 
 
 Piatt V. Brown (30 Conn. 326) 500 
 
 Platz V. Cohoes (89 N. Y. 219) 498 
 
 Platz V. Cohoes (8 Abb. N. C. 392) 518 
 
 Plummer v. Penobscot L. Ass'n (67 Me. 363) 34 
 
 Plymouth Township v. Graver (125 Pa. St. 24) 463 
 
 Pool V. Railway Co. (7 Utah 303; 26 Pac. Rep. 654) 379 
 
 Porter v. Railroad Co. (71 Mo. 66; 36 Am. Rep. 454) . . .5, 143, 155, 
 
 161, 519 
 
 Posch V. Railroad Co. ( 76 Mo. App. 601) 41 
 
 Post V. Olmstead (47 Neb. 893; 66 N. W. Rep. 828) 388, 414 
 
 Potter V. Chic, etc Rd. Co. (20 Wis. 533; 9 Am. Dec. 444) 432*, 445 
 
 Potts V. Telegraph Co. (82 Tex. 545) 228,' 238 
 
 Powell V. Railway Co. (68 N. C. 395) .' 509 
 
 Power V. Harlow (57 Mich. 107) 155, I7i_ 332 
 
 Powhates Steamboat Co. v. Railway Co. (24 How. U. S. 247) . '. ' 498 
 
 Pratt V. Pioneer Press Co. (32 Minn. 217) 516 
 
 Pratt V. Castle (91 Mich. 484) 496 
 
 Pratt Coal & Iron Co. v. Brawley (83 Ala. 371) 319 
 
 Predaux v. Mineral Point (43 Wis. 573; 28 Am. Rep. 558) .!!..! 321 
 
 N Prentiss v. Shaw (56 Me. 427; 96 Am. Dec. 435) 185 
 
 Press Pub. Co. v. McDonald (63 Fed. Rep. 238; 26 L. R A 531) 362 
 
 Press Pub. Co. v. Monroe (73 Fed. Rep. 196) 347 
 
 Price V. Railway Co. (33 S. Car. 536; 12 S. E.' Rep. 413) 497 
 
 Prime v. Eastwood (45 Iowa 640) 185 
 
 Prince v. Brooklyn Daily Eagle (16 Misc. Rep. N. T. S C 186) 347 
 
 Prindle V. Campbell (7 Mackey 598) ! . . ' 51 
 
 Propson V. Leatham (80 Wis. 608; 50 N. W. Rep. 586) ...... 69, 74, 
 
 Pry V. Railroad (73 Mo. 124; 2 Segdw. Damages, 8 ed., Sec. 485) ' 333 
 Pueblo V. Griffin (10 Col. 366; 15 Pac. Rep. 616) 57 62 
 
 Pullman v. Railway Co. (9 Q. B. D. 110) ... " '408 
 
 Pullman Palace Car Co. v. Bluhn 109 111. 20; 50 Am. Rep.'eOl) ! . 
 
 Pullman Palace Car Co. v. Booth (Tex. Civ. App.; 28 S. W. Rep. 
 
 719 ) J52 
 
 Pullman Palace Car Co. v. King (U. S., C. C. A.; V Am. Neg! R ' 376) ' 185 
 
 Pullman Palace Car Co. v. Lawrence (74 Miss. 782) .. 351 
 
 Pullman Palace Car Co. v. Trimble (8 Tex. Civ^ App. 363) 267 268 
 Pullman Palace Car Co. v. Smith (79 Tex. 468; 14 S W Rep 993- 23 
 
 Am. St. Rep. 356; 13 L. R. 215) 44, 53, 58, '293, 312 
 
 Purcell V. Railway Co. (48 Minn. 134; 16 L. R. A. 203; 50 N W Rep. 
 
 ^"^*^ 167, 176, 178, 181,' 272, 278, 285 
 
TABLE OF CASES. Ixvii 
 
 Page. 
 
 Purcell V. Richmond & D. R. Co. (108 N. Car. 414; 12 L. R. A. 113) . 357 
 
 Putnam v. Southern Pac. Ry. Co. (27 Pac. 1033) 409 
 
 Pym V. Railway Co. (4 B. & S. 396) 377 
 
 Pym V. Railway Co. ( 31 L. J. Q. B. 249 ) : aSO 
 
 Pym V. Railway Co. (39 Fed. Rep. 18) 393 
 
 Quackenbush v. Railway Co. (73 Iowa 458) 286 
 
 Quaife v. Railway Co. (48 Wis. 513; 4 N. W. Rep. 658) 84 
 
 Quigley v. Railway Co. (11 Nev. 350) 155, 203, 354 
 
 Quigley v. Railway Co. (5 Saw., U. S., 107) .' 185 
 
 Quincy Horse R. Co. v. Gnuse (137 111. 264) 450 
 
 Quinn v. Johnson Forge Co. (9 Hous., Del. 338) 398 
 
 Quinn v. O'Keefe (41 N. Y. Supp. 116) 291 
 
 Quinn v. Railway Co. (34 Hun 331) 143 
 
 Quiim V. Railway Co. (29 S. Car. 381; 1 L. R. A. 682) 354, 512 
 
 Quirk V. Seigel Cooper Co. (56 N. Y. Supp. 49) 124 
 
 Raben v. Railway Co. (74 Iowa 732; 34 N. W. Rep. 621) . . . 69, 71, 87 
 
 Railroad Co. v. Barron ( 5 Wall. 90) 513 
 
 Railroad Co. v. Brown (17 Wall. 446) 185, 200 
 
 Railroad Co. v. Cook (37 Ohio St. 265) 408 
 
 Railroad Co. v. Doyle (50 Neb. 555; 70 N. W. Rep. 43) 503 
 
 Railroad Co. v. Elliott ( 28 Ohio St. 340) .';04 
 
 Railroad Co. v. Gladmon (15 Wall. 401) 432 
 
 Railroad Co. v. Hill (90 Ala. 71; 24 Am. St. Rep. 764) 471 
 
 Railroad Co. v. Himrod Furnace Co. (37 O. S. 434) 520 
 
 Railroad Co. v. Hinds ( 53 Penn. St. 512) 199 
 
 Railroad Co. v. Hope (80 Penn. St. 373; 21 Am, Rep. 100) 275 
 
 Railroad Co. v. Kasson (49 Ohio St. 230) 436, 444, 445, 497 
 
 Railroad Co. v. Lamoreaux (5 Kan. App. 817; 49 Pac. 152) 65 
 
 Railroad Co. v. McGinnis (46 Kas. 109; 26 Pac. Rep. 453) 65 
 
 Railroad Co. v. Hosier (101 Ind. 597) 445 
 
 Railroad Co. v. Pollard (22 Wall. 341) 442 
 
 Railroad v. Spence (93 Tenn. 173; 42 Am. St. Rep. 908) 378 
 
 Railroad Co. v. Taylor (104 St. 306) 462 
 
 Railroad Co. v. Thul (29 Kan. 466) 471 
 
 Railroad Co. v. Woodson (134 U. S. 614) 502 
 
 Railway Co. v. Arms (91 U. S. 489) 356 
 
 Railway Co. v. Brown (17 Wall. 446) 197 
 
 Railway Co. v. Frazler (27 Kan. 463) 84 
 
 Railway Co. v. Henderson (37 Ohio St. 552) 505 
 
 Railway Co. r. Harmon's Adm'r (147 U. S. 571) '• . 520 
 
 Railway Co. v. Herman (83 Va. 553) 432, 445 
 
 Railway Co. v. Levally (36 Ohio St. 226) 505 
 
 Railway Co. v. Lochneison (40 Neb. 37; 58 N. W. Rep. 535) 506 
 
 Railway Co. v. Morin (66 Tex. 133; 18 S. W. Rep. 345) 336 
 
 Railway Co. v. Murphy (50 Ohio St. 135) 505, 506, 511, 512 
 
 Railway Co. v. Telephone Co. (69 Tex. 277) 365 
 
 Railway Co. v. Thompson (56 111.) 493 
 
 Railway Co. v. Webber (33 Kan. 543) ^00 
 
 Railway Co. v. Witten (74 Tex. 202; 11 S. W. Rep. 1091) 336 
 
 Railway Co. v. Vallely (32 Ohio St. 345; 33 Am. Rep. 601) .... 199, 491 
 
 Rains v. Railroad Co. (71 Mo. 164; 36 Am. Rep. 459) ■••••••••■■• ^,^ 
 
 29, 31, 326, 386, 387, 402, 415 
 
 Raines v. Railroad Co. (39 W. Va. 50; 24 L. R. A. 226) 512 
 
Ixviii TABLE OP CASES. 
 
 Page. 
 
 Rajnowski v. Railway Co. (78 Mich. 681; 41 N. W. Rep. 847) 114 
 
 Ramsden v. Railway Co. (104 Mass. 117; 6 Am. Rep. 117) .. 188, 
 
 286, 287 
 
 Randall v. Haywood (5 Ring. N. C. 424) 517 
 
 Ransom v. Railroad Co. (15 N. Y. 415) 65 
 
 Randall v. Railway Co. (109 U. S. 478) 502, 505 
 
 Rateree v. Chapman (79 Ga. 574) 462 
 
 Ravary v. Railway Co. (6 Low. Can. Jur. 49) 395 
 
 Rawson v. Haigh (2 Bing. 99) 449 
 
 Raymond v. Keseberg (91 Wis. 161; 64 N. W. 861) 71, 73 
 
 Raynor v. Nims (37 Mich., 34; 26 Am. Rep. 493) 17 
 
 Razzo V. Varni (81 Cal. 289) 176, 284, 312 
 
 Rea V. Harrington (58 Vt. 181) 205, 208 
 
 Readdy v. Borough of Shamokin (137 Pa. St. 98; 20 Atl. 396) . .59, 
 
 293, 294 
 
 Redfield v. Street Ry. Co. (112 Cal. 220; 43 Pac. Rep. 1117) 294 
 
 Redfleld v. Street Ry. Co. (110 Cal. 272; 42 Pac. Rep. 822) . . 383, 417 
 
 Reddon v. Railroad Co. (5 Utah 344; 15 Pac. Rep. 262) 93, 291 
 
 Reed v. Clark (47 Cal. 194) 250, 254 
 
 Reed v. Detroit (108 Mich. 224; 65 N. W. 967) 36, 38 
 
 Reed v. Madison (85 Wis. 667) 454 
 
 Reed v. Railroad Co. (57 Iowa 23) • 22, 24 
 
 Reed v. Railway (45 N. Y. 574) 81 
 
 Reed v. Railway Co. (74 Iowa 188; 37 N. W. Rep. 149) 93, 129 
 
 Reese v. Western U. T. Co. (123 Ind. 294; 7 L. R. A. 583) 
 
 218, 229, 225, 238 
 
 Reger v. Rochester Railway Co. (37 N. Y. S. 520) 413, 427 
 
 Regner v. Street Railway Co. (26 N. Y. Supp. 625) 150 
 
 Reilly v. Railroad Co. (94 Mo. 609) 512 
 
 Reinke v. Bentley (90 Wis. 457; 63 N. W. 1055) 
 
 64, 161, 162, 185 
 
 Reisensteiu v. Clark (104 Iowa 287) 351 
 
 Relle V. W. U. T. Co. (55 Tex. 308; 40 Am. Rep. 805) 229 
 
 Renihan v. Wright (125 Ind. 536; 21 Am. St. Rep. 249) 
 
 156, 267, 398, 391 
 
 Renner v. Canfield (36 Minn. 90) 164, 167, 172, 175 
 
 Republican Pub. Co. v. Mossman (15 Colo. 399) '.....' 208 
 
 Reynolds v. Niagara Falls (31 N. Y. Supp. 954) 25 
 
 Ribich V. Smelting Co. (Mich., 48 L. R. A. 649) 128 
 
 Rice V. Des Moines (40 Iowa 638.) 36, 87 
 
 Rice V. Railway Co. (Tex. Civ. App.; 27 S. W. Rep. 921) 294 
 
 Rice V. Rice (104 Mich. 371; 62 N. W. Rep. 833) 157 
 
 Richardson v. Railway Co. (98 Mass. 81) _ 410, 440 
 
 Richland Iron Co. v. Elens (90 Va. 249; 17 S. B. Rep. 890) . . . 127 135 
 Richmond v. Railway Co. (87 Mich. 374; 49 N. W. Rep. 621) 
 
 370, 371, 373, 386, 408, 409 
 
 Richmond v. Railway Co. (76 Hun, N. Y., 233) 145 
 
 Richmond v. Roberts (98 111. 472) 250 
 
 Richmond & Danville R. R. Co. v. Allison (86 Ga! 145; 11 L. R. A. 
 
 43) '. 3, 5, 6, 12, 15, 87, 101, 102, 513 
 
 Richmond & D. R. Co. v. Elliott (149 U. S. 266) 101 
 
 Richmond & D. R. Co. v. Farmer (97 Ala. 141) 41 364 397 
 
 Richmond & D. R. Co. v. Garner (91 Ga. 27) '. m', 112 
 
 Richmond & D. R. Co. v. Garth wright (92 Va. 627) 144 
 
 Richmond & D. Rd. Co. v. Hammond (93 Ala. 181; 9 South 577) .. 456 
 
TABLE OF CASES. Ixix 
 
 Richmond & D. R. Co. v. Hessong (97 Ala. 187; 13 S. Rep. 209) Tu 
 Richmond & D. R. Co. v. Jefferson (89 Ga. 554; 17 L. R A 
 
 _. ,°''-^ ;•„■■;.■■• 185, 186, 193, 197, 200 204 
 
 Kichmond & D. Ry. Co. v. Norment (84 Va. 167; 10 Am. St. Rep. 
 
 oat) _ ^ J /»p- Qq -if»-i T RA 
 
 Richmond & D. R. A. Co. v. Vance (93' Ala! mVsOAm.' St." Rep. 41) 343 
 Richmond & D. R. Co. v. Williams (88 Ga."16; 14 S. E. Rep. 120) . . 
 
 n- V. ., ^ ^ 64, 137 
 
 Richmond Gas. Co. v. Baker (146 Ind. 600; 36 L. R. A 683) 87 110 
 
 Richmond Ry. & Elec. Co. v. Bowles (92 Va. 738; 24 S E Rep 388)' 294 
 Ricketts v. Railway Co. (33 W. Va. 433; 7 L. R A. 354) 358 
 
 Riddle v. McGinnis (22 W. Va. 253) 215 216 
 
 Ridenhour v. Cable Co. (102 Mo. 270) 64 138 155 I61' 292 
 
 Riley v. Railway Co. (27 W. Va. 145) .'...' ' ' I6I 
 
 Riley v. Salt Lake Rap. Tr. Co. (10 Utah 428) ........... '388 412 
 
 Rio Grande Wes. Ry. Co. v. Rubenstein (5 Colo. App 121- 35 Pac' 
 
 Rep. 76) ' • 5g 
 
 Ripon V. Bitten (30 Wis. 614) 41 64 154 
 
 Rippe V. Street Ry. Co. (54 N. Y. Supp. 958) '.' '124' 323 
 
 Robbins v. Hudson River Rd. (7 Bos., N. Y. 1) ' 517 
 
 Roberts v. City of Detroit (Mich., 60 N. W. Rep. 450) 294 
 
 Roberts v. Graham (6 Wall. 578) ".'.' ' 'gg ' 435' 461 
 
 Roberts v. Johnson (58 N. Y. 613) '. ' 442' 443 
 
 Roberts v. Mason (10 Ohio St. 277) 353' 354 
 
 Roberts v. Railway Co. (29 N. H. 154) ........ 468 
 
 Robertson v. Cornelson (34 Fed. Rep. 716) 65 
 
 Robinson v. Railroad Co. (9 Fed. Rep. 877) 516 
 
 Robinson v. Railway Co. (48 Cal. 409) '.'.'..'. 139,' iVo 433 
 
 Robinson v. Railway Co. (20 Blatcht, U. S., 338) ' '443 
 
 Robinson v. Simpson (8 Houst, Del., 398; 32 Atl. Rep. 287) 
 
 21, 41, 398 
 
 Robinson v. Superior R. Tr. Co. (94 Wis. 345; 34 L. R. A. 205) 
 
 185, 186, 358, 454 
 
 Robostelli v. N. Y. R. R. Co. (34 Fed. Rep. 719) 404 
 
 Roche V. Railway Co (105 N. Y. 294; 11 N. E. 630) 81, 458 
 
 Roche V. Reddington (125 Cal. 174; 57 Pac. Rep. 890) 87, 136 
 
 Rock V. Denis (M. L. Rep., 4 buper. Ct..356) 167 
 
 Rockford & R. I. Rd. Co. v. Delaney (82 111. 198) ... 327, 388, 393, 460 
 
 Rockwell V. Borough of Eldred (7 Pa. Sup. Ct, Pa., 95) 169 
 
 Rockwell V. Railway Co. (64 Barb. 438; 53 N. Y. 625) 41, 88, 142 
 
 Rockwen V. Taylor (41 Conn. 55) 449 
 
 Rockwood V. Allen (7 Mass. 254) 3 
 
 Roddy V. Railroad Co. (104 Mo. 234; 24 Am. St. Rep. 333) 512 
 
 Rogers v. Henry (32 Wis. 337) 351, 352 
 
 Rogers v. Railway Co. (65 Minn. 308; 67 N. W. Rep. 1003) 144, 145 
 
 Rogers v. Smith (17 Ind. 323; 79 Am. Dec. 483) 310 
 
 Rollins V. Chalmers (51 Vt. 592) 215 
 
 Rollseth V. Smith (38 Minn. 14; 8 Am. St. Rep. 637) 432. 445 
 
 Rooney v. Railway Co. (173 Mass. 222; 53 N. E. Rep. 435) ... 107, 108 
 
 Root V. Monroeville (4 C. D. 0. 53; 16 C. C. O. 617) 433 
 
 Rose V. Railroad Co. (12 S. Rep. 825) 197 
 
 Rose V. Railway Co. (39 Iowa 246) 421 
 
 Rose V. Railway Co. (70 Miss. 725; 12 So. Rep. 823) 200 
 
 Rosenfield v. Arrol (44 Minn. 395; 20 Am. St. Rep. 584) ... 442, 443 
 
Ixx TABLE OF CASES. 
 
 Page. 
 Rosenkranz v. Railway Co. (108 Mo. 9; 32 Am. St. Rep. 588) ... 
 
 89, 92, 168, 334 
 
 Ross V. Hixon (26 Am. St. Rep. 162, 164ii) 214 
 
 Ross V. Leggett (61 Mich. 445; 1 Am. St. Rep. 615) .. 12, 15, 185, 
 
 210, 212, 342, 343, 351 
 
 Ross V. City of Kansas City (48 Mo. App. 440) 69 
 
 Ross V. Railroad Co. (44 Fed. Rep. 44) 388, 412 
 
 Rossa V. Boston Loan Co. (132 Mass. 439) 81, 84 
 
 Rose V. Railway Co. (106 N. C. 168) 361 
 
 Roth V. Union Depot Co. (13 Wash. 525; 31 L. R. A. 855; 43 Pac. 
 
 Rep. 641) , 89, 339 
 
 Roundtree v. Smith (108 U. S. 269) 503 
 
 Rouse V. Melscheimer (82 Mich. 172) 264 
 
 Rowe V. Matthews (18 Fed. Rep. 132) 516 
 
 Rowley v. Railroad Co. (29 L. T. 188; L. R. 8 Ex. 221) Ill, 377 
 
 Royal V. Smith (40 Iowa 615) 234, 250 
 
 Rucker v. Wheeler (127 U. S. 85) 509 
 
 Rummele v. Heating Co. (Pa. St., 16 Atl. Rep. 78) ... 89, 111, 168, 515 
 
 Rupard v. Railroad Co. (88 Ky. 280) 512 
 
 Russ V. War Eagle (14 Iowa 363) 87, 140 
 
 Russell V. Come (2 Ld. Raym. 1031) 300 
 
 Russell V. Sunbury (37 0. S. 372) 409 
 
 Russell V. Telegraph Co. (3 Dak. 315) 172, 175, 230, 247 
 
 Rutherford v. Railway Co. (41 La. Ann. 793) 85 
 
 S. & A. Elec. Tr. Co. (187 Pa. St. 568; 41 Atl. Rep. 324) 313 
 
 Sabine, etc., R. Co. v. Ewing (7 Tex. Civ. App. 8) 132 
 
 Sabota v. Insurance Co. (54 Wis. 687) 503 
 
 St. Joseph & Grand I. R. Co. v. Hedge (44 Neb. 448; 62 N. W. Rep. 
 
 887) 157 
 
 St. Louis, etc., Rd. Co. v. Blackburn (15 S. W. 469) 27, 64, 156 
 
 St. Louis, A. & T. R. Co. v. Burns (71 Tex. 479) 284 
 
 St. Louis, A. & T. R. Co. v. Mackie (71 Tex. 491; 1 L. R. A. 677> . . 192 
 St. Louis, A. & T. Ry. Co. v. Johnson (78 Tex. 536; 15 S. W. Rep. 
 
 104) 418^ 419 
 
 St. Louis, A. & T. R. R. Co. v. French (56 Kan. 584) 425 
 
 St. Louis Bridge Co. v. Miller (185 111. 465) 469, 474 
 
 St. Louis & S. Fe R. Co. v. MoClain (80 Tex. 85; 15 S. W. Rep. 789) .' 129 
 St. Louis & S. P. Ry. Co. v. Murray (55 Ark. 248; 18 S. W. Rep. 
 
 50; 29 Am. St. Rep. 32; 16 L. R. A. 787) 81, 458 
 
 St. Louis & S. F. R. Co. v. Woolum (Tex., 19 S. W. Rep. 782) ' 133 
 
 St. Louis & T. H. R. R. Co. v. Bauer (53 111. App. 325) 424 
 
 St. Louis, I., M. & S. R. Co. V. Cantrell (37 Ark. 519; 40 Am. Rep. 
 
 105) ■ 64, 86 
 
 St. Louis, I., M & S. Ry. Co. v. Davis (55 Ark. 462; 18 S. W. Rep. 
 
 „ 628) 38g 388 427 
 
 St. Louis, I., M. & S. Ry. Co. v. Freeman (36 Ark. 41) 386. 388, 415 
 
 St. Louis, I., M. & S. R. Co. v. Maddry (57 Ark. 306) . . 379, 381 390 420 
 
 St Louis, I., M. & S. R. R. Co. v. Sweet (63 Ark. 563) 30, 31, 
 
 380, 416', 403 
 
 St. Louis, etc., R. R. Co. v. Wheeler (35 Kan. 185) 388 
 
 St. Louis, I., M. & S. Ry. Co. v. Wilkerson (46 Ark. 513) 491 
 
 St. Louis, I., M & S. Ry. Co. v. Needham (3 C. C. A. 129; 52 Fed. 
 
 Rep. 371) 116 
 
 St. I ouis, I., M. & S. Ry. Co. v. Robbins (57 Ark. 377; 21 S. W. Rep 
 
 886) '^^ 427 
 
TABLE OF CASES. Ixxi 
 
 Page. 
 St. Louis & South. W. Ry. Co. v. Dobbins (60 Ark. 481; 30 S. W. 
 
 Rep. 887) 69, 168 
 
 St. Paul R. Co. V. Kellogg (94 U. S. 469) 181 
 
 St. Peter's Church v. Beach (26 Conn. 355 ) 4 
 
 Saldana v. Railroad Co. (43 Fed. Rep. 862) 65, 86, 124, 156, 160 
 
 Salida v. McKinna (16 Colo. 523; 27 Pac. Rep. 810) 44, 45 
 
 Salina v. Trooper (27 Kan. 544) 155, 160 
 
 Salter v. Railroad Co. ( 86 N. Y. 401) '463 
 
 Salon V. Railroad Co. ( 13 Nev. 10) 5 
 
 Samuels v. Railway Co. (35 S. Car. 493; 28 Am. St. Rep. 883) 
 
 343, 348, 350, 502, 503, 509, 510 
 San Antonio & A. P. R. Co. v. Bennett (76 I'ex. 151; 13 S. W. 115) . . 115 
 San Antonio, etc., R. R. Co. v. Carley (Tex. Civ. App.; 26 S. W. Rep. 
 
 903) 161 
 
 San Antonio & A. P. Ry. Co. v. Greene (20 Tex. Civ. App. 5; 49 S. 
 
 W. Rep. 670) 1 338 
 
 San Antonio & A. P. Ry. Co. v. Harding (11 Tex. Civ. App. 497; 33 
 
 S. W. Rep. 373) 419 
 
 San Antonio & A. P. Ry. Co. v. Long (26 S. W. Rep. 114) 418 
 
 San Antonio & A. P. R. Co. v. Long (Tex. Civ. App.; 28 S. W. Rep. 
 
 214) , 133 
 
 San Antonfo & A. R. Co. v. Gwynn (4 Tex. Civ. App. 338; 15 S. W. 
 
 Rep. 509) 24 
 
 San Antonio, etc., Rd. Co. v. Keller (11 Tex. Civ. App. 569) 21, 63 
 
 San Antonio St. Ry. Co. v. Cailloutte (79 Tex. 341; 15 S. W. Rep. 
 
 390) 431,444 
 
 San Antonio St. Ry. v. Muth (Tex. Civ. App.; 27 S. W. Rep. 443) . . 22 
 San Antonio St. Ry. Co. v. Watzlavzick (Tex. Civ. App.; 28 S. W. 
 
 115) 388, 414 
 
 Sandwich v. Dolan (141 111. 430; 31 N. B. 416) 64 
 
 Sanford v. Augusta (32 Maine 536) 88 
 
 Saunders v. Railway Co. (2 L. T. R. 153) 515 
 
 Saunders v. Railway (8 Q. B. N. S. 887; 98 E. C. L. 887) 34 
 
 Saunders v. Reister (1 Dak. 151; 46 N. W. Rep. 680) 81 
 
 Sauter v. Railway Co. (66 N. Y. 50; 6 Hun 446; 23 Am. Rep. 18) . 36, 111 
 Savannah, A & M. Ry. Co. v. McLeod (94 Ga. 530; 20 S. B. Rep. 
 
 434) 107, 112 
 
 Savannah, F. & W. R. R. Co. v. Plannigan (82 Ga. 579) 379 
 
 Savannah F. & W. Rd. Co. v. Holland (82 Ga. 257; 41 Am. & Bng. Rd. 
 
 Cas. 196) 348, 349 
 
 Savannah, F. & W. R. Co. v. Howard (91 Ga. 99; S. E. Rep. 306) . . 
 
 137, 138 
 
 Savannah, F. & W. R. Co. v. Stewart (71 Ga. 427) 377 
 
 Savannah St. & R. R. Co. v. Bryan (86 Ga. 312; 12 S. E. Rep. 307). 151 
 
 Schadewald v. Railway Co. (55 Wis. 569) 381 
 
 Schafer v. Gilmer (13 Nev. 330) 286, 291 
 
 Scagel V. Railway Co. (83 Iowa 380; 49 N. W. Rep. 990) 115 
 
 Schaub V. Railway Co. (106 Mo. 74) 381, 394 
 
 Scheffler v. Railway Co. (32 Minn. 518; 21 N. W. Rep. 711) 
 
 Ill, 112, 376 
 
 Scheppe v. Norton (38 Kan. 567) 346 
 
 Schier v. Railroad Co. (65 Wis. 457) 388, 411 
 
 Schippel V. Norton (38 Kan. 567) 511 
 
 Schlitz Co. V. Blacklay (10 C. D. O. 17; 18 C. C. O. 359) 151 
 
 Schmidt v. Humphry (48 Iowa 652) 498 
 
Ixxii TABLE OF CASES. 
 
 Page. 
 
 Schmidt v. Mitchell (84 111. 195; 25 Am. Rep. 446) .'. 36 
 
 Schmitz V. Railroad Co. (119 Mo. 256; 23 L. R. A. 250) 332 
 
 Schmidt v. Sinnot (103 111. 166) 506 
 
 Schmitt V. Railway Co. (89 Wis. 195) 185 
 
 ' Schmitz V. Railway Co. (119 Mo. 256; 23 L. R. A. 250) . 69, 155, 161, 170 
 
 Schneider v. Hosier (21 Ohio St. 98) 257, 262, 264, 351, 353 
 
 Schneider v. Mo. Pac. Rd. Co. (75 Mo. 295) 434 
 
 Schneider v. Railroad Co. (3 Atl. Rep. 26 65, 69 
 
 Schneider v. Railroad Co. (15 N. Y. Supp. 556) 88, 131, 133 
 
 Schroeder v. Railroad Co. (47 Iowa 375) ... 458, 464, 469, 470, 471, 472 
 
 Schuchart v. Allen (1 Wall. 359) . . . .^ 505 
 
 Schuler v. Railway Co. (18 N. Y. Supp. 48) 151 
 
 Schuler v. Third Ave. R. Co. (17 N. Y. Supp. 834) 71 
 
 Schulte V. Holliday (54 Mich. 73) 21, 310, 311 
 
 Schultz V. Railway Co. (44 Wis. 638) 496 
 
 Schultz V. Railway Co. (9 C. D. O. 816; 19 C. C. O. 639) 419 
 
 Schultz V. Railway Co. (48 Wis. 375) 89, 93, 138 
 
 Schumaker v. Railroad Co. (46 Minn. 39; 12 L. R. A. 257) 
 
 85, 181, 201 
 
 Schumacker v. Railway Co. (39 Fed. Rep. 174) 147 
 
 Schwingschlegel v. Monroe (Mich., 72 N. W. Rep. 7) 285 
 
 Scott V. Hamilton (71 111. 85 64 
 
 Scott V. Montgomery (95 Pa. St. 444) ... 21, 69, 72, 89, 154, 158, 161 
 
 Scott V. Shepard (3 Wils., 403) 13, 271 
 
 Scott V. Sh-ipard (2 W. Bl. 892) 181 
 
 Scripps V. Reilly (38 Mich. 10) 5, 185, 205, 206, 211 
 
 Seaboard Mfg. Co. v. Woodson (98 Ala. 378; 11 So. 733) 
 
 86, 91, 99, 100, 111, 351, 354 
 
 Searl v. School District (133 U. S. 553) 6 
 
 Searle v. Railway Co. (32 W. Va. 370) , 378, 379, 382 
 
 Sears v. St. Ry. Co. (6 Wash. 227) ' 133 
 
 Seat V. Moreland ( 7 Humph., Tenn., 575) 6 
 
 Seats V. Railway Co. (6 Wash. 227; 33 Pac. Rep. 389, 1081) 89 
 
 Sebree v. Smith (2 Idaho 329; 16 Pac. Rep. 915) 501 
 
 Secord v. Railway Co. (18 Fed. Rep. 236) 86, 124, 508 
 
 Secur V. Benson (27 La. Ann. 1) , , , 200 
 
 Seeley v. Traction Co. (179 Pa. St. 334) 496 
 
 Segur V. Barkhamsted (22 Conn. 290) . . 21, 65, 87, 155, 156, 160, 176, 
 
 185, 245 
 
 Seitz V. Mitchell (94 V. S. 580) 294 
 
 Sellars v. Foster (27 Nebr. 118;- 42 N. W. Rep. 907) Ill 
 
 Selleck v. Janesville (100 Wis. 157; 75 N. W. Rep. 895; 47 L. R. A. 
 
 691) 297, 301, 459, 480 
 
 Selleck v. Janesville (75 N. W. 975; 41 L. R. A. 563) 36, 38 
 
 Selleck v. J. Langdon Co. (59 Hun 627) 144 
 
 Sellick V. Langdon (13 N. Y. Supp. 858) 145 
 
 Selma, etc., Rd., Co. v. Gammage (63 Ga. 604) 519 
 
 Seltzer v. Saxton (71 111. App. 229) 339 
 
 Serensen v. Railway Co. (45 Fed. Rep. 407) 375 391 
 
 Seybolt v. Railway Co. (95 N. Y. 562) ' 460 
 
 Shafer v. Lacock (168 Pa. St. 497) ' 446, 453 
 
 Shanahan v. Madison (57 Wis. 276) .302 
 
 Sharp V. Evergreen Township (67 Mich. 443)............!..!!! 498 
 
 Shartle v. Minneapolis (17 Minn. 308) 4, 287 
 
 Shaw V. Boston, etc., R. Corp. (8 Gray, Mass., 45) 489,' 519 
 
TABLE OF CASES. Ixxiii 
 
 Shaw V. Cratt (37 Fed. Rep. 317) 317 320 
 
 Shaw V. Railway Co. (123 Mich. 629; 49 L. R. A. 308)!...!. 339' 455 
 
 Shaw V. Van Rensselaer (6U How. Pr. 143) ' 470 
 
 Shea V. Potrero and Bay View Rd. Co. (44 Cal. 414) 5 61 
 
 Sheehy v. Street Ry. Co. (94 Mo. 574; 4 Am. St. Rep. 396)!.. 516 
 
 Sheel V. City of Appleton (49 Wis. 125) 64 158 
 
 Sheets v. Railway Co. (39 W. Va. 475; 20 S. B. Rep. 566)......! 150 
 
 Sheffield v. Central U. Tel. Co. (36 Fed. Rep. 164) 317 320 
 
 Shelby Co. v. Casteller (7 Ind. App. 309) ' 28 
 
 Sheldon v. Fairfax (21 Vt. 4) !!!!!!!! 7 
 
 Shenandoah F. N. Bk. v. Railroad Co. (61 Iowa 700). 515 
 
 Shepard v. Pratt ( 16 Kan. 209) ! ! ! ! ! 32, 519 
 
 Shepard v. Railway Co. (77 Iowa 54) 185, 200, 204 235 
 
 Shepherd v. Willis (19 Ohio 142) .' ' .' 79 
 
 Shepherd v. Railway Co. (85 Mo. 629; 55 Am. Rep. 390) 470 
 
 Sheridan v. Hibbard (119 111. 307) 21, 155, 160 
 
 Sherley v. Billings (8 Bush, Ky., 47) .' ! 155 
 
 Sherlock v. Ailing (44 Ind. 184) 493 
 
 Sherman v. Dutch (16 111. 283) 363 
 
 Sherman v. Fall River Iron Works (2 Allen 524) 34 
 
 Sherman v. Naeivy ( 77 Tex. 291 ) I39 
 
 Sherman v. Western Stage Co. (24 Iowa 515) 420 
 
 Sherrill v. Telegraph Co. (109 N. C. 527) 218 
 
 Sherwood v. Railroad Co. (82 Mich. 374; 88 Mich. 108) 5, 21, 
 
 23, 41, 64, 69, 88, 93, 111, 155, 158, 160, 163,' 168, 171 
 
 Shultz V. Railway Co. (48 Wis. 375) 520 
 
 Shumway v. Walworth, etc., Mfg. Co. (98 Mich. 411) 285, 286 
 
 Sias V. Reed City (103 Mich. 312; 61 N. W. 502) 58 
 
 Sibila V. Bahney (34 O. S. 399, 410) 520 
 
 Sldekum v. Street Ry. Co. (93 Mo. 400; 4 S. W. Rep. 701) 64, 69, 
 
 155, 469, 470, 474, 161 
 Sieber v. Great North. Ry. Co. (76 Minn. 269; 79 N. W. Rep. 95) 425 
 
 Silver v. Dominion Tel. Co. (14 Nova Scotia 76) 351, 353 
 
 Silsby V. Mich. Car. Co. (95 Mich. 204 j 51, 53, 56, 62, 121, 461 
 
 Simmons v. Brown (5 R. I. 299; 73 Am. Dec. 66) 59 
 
 Simmons v. McConnell (86 Va. 494) 385 
 
 Simonin v. Ry. Co. (36 Hun, N. Y., 214) 53, 94 
 
 Simonson v. Railway Co. (49 Iowa 87) 97 
 
 Simpson v. Grayson (54 Ark. 404; 26 Am. St. Rep. 52) 215 
 
 Simpson v. McCaffrey (13 Ohio 508, 522) 353 
 
 Sissing V. Beach (91 Mich. 264; 58 N. W. Rep. 364) 257, 259 
 
 Sioux City & Pac. R. Co. v. Finlayson (16 Neb. 578; 49 Am. Rep. 
 
 724) 129, 466, 474 
 
 Skoglund V. Railway Co. (45 Minn. 330; 22 Am. St. Rep. 733) .. 
 
 294, 297, 308, 376 
 Skottowe V. Railway Co. (22 Ore. 430; 30 Pac. Rep. 222) .. 370, 371 
 Slater v. Railway Co. (29 S. C. 96; 6. S. E. Rep. 936; 35 Am. & Eng. 
 
 Rd. Cas. 625) 443, 444 
 
 Sloane v. Railway Co. (Ill Cal. 668; 32 L. R. A. 193; 44 Pac. Rep. 
 
 320) 167, 176, 177, 286 
 
 Sloniker v. Railway Co. (76 Minn. 306; 79 N. W. Rep. 168) 88, 338 
 
 Smethurst v. Prop, of Ind. Cong. Ch. (148 Mass. 261; 2 L. R. A. 
 
 ,695) 4, 85 
 
 Smith v. Cable Co. (174 Mass. 576; 4.7 L. R. A. 323) 269 
 
 Smith v. City Ry. Co. (32 Minn. 1; 50 Am. Rep. 553) 442 
 
Ixxiv TABLE OF CASES. 
 
 I 
 
 Page. 
 
 Smith V. Dittman (11 N. Y. S. 269) '. 517 
 
 Smith V. Dye (Tex. Civ. App.; 51 S. W. Rep. 858) 366 
 
 Smith V. Exchange (91 Wis. 360; 30 L. R. A. 504) 71 
 
 Smith V. Hixon (2 Strange. 977; 2 Rolls Abr. 556) 300 
 
 Smith V. Holcomb (99 Mass. 552) 21, 65, 155, 160, 185 
 
 Smith V. Maueh Chunk (3 Pa. Sup. Ct. R., Pa., 653) 69, 158 
 
 Smith V. Melden ( 107 Pa. St. 348) 520 
 
 Smith V. Milwaukee Builders' & Traders' Exchange (91 Wis. 360; 
 
 64 N. W. 1041; 30 L. R. A. 504) 73 
 
 Smith V. Occidental and Oriental S. S. Co. (61 Fed. Rep. 338) 427 
 
 Smith V. Overly (30 Ga. 241) 160 
 
 Smith V. Pittsburg & W. Ry. Co. (90 Fed. Rep. 783) 170 
 
 Smith V. Postal Co. (174 Mass. 576; 47 L. R. A. 323) 166 
 
 Smith V. Railroad Co. (Mo., 18 S. W. 971) 22 
 
 Smith V. Railway Co. (18 Fed. Rep. 304) 149 
 
 Smith V. Railway Co. (90 Fed. Rep. 783) 123, 334, 515 
 
 Smith V. Railway Co. (119 Mo. 246; 23 S. W. Rep. 784) 59, 128 
 
 Smith V. Railway Co. (23 Ohio St. 10) .. 150. 154, 161, 185, 515, 516 
 
 Smith V. St. Joseph (55 Mo. 456; 17 Am. Rep. 660) 300, 310 
 
 Smith V. St. Paul Ry. Co. (32 Minn. 1; 50 Am. Rep. 550) 442 
 
 Smith V. Sherwood Twp. (62 Mich. 159) 455 
 
 Smith V. Spokane (16 Wash. 403; 47 Pac. Rep. 888) 134 
 
 Smith V. Sun Printing Ass'n (55 Fed. Rep. 240; 5 C. C. A. 91) 361 
 
 Smith V. Whittier (95 Cal. 279) 131 
 
 Snow V. Grace (25 Ark. 570) 4 
 
 Snow V. Provincetown (120 Mass. 580) 497 
 
 Snell v. State (25 Am. St. Rep. 723) 492 
 
 Snell V. Street Ry. Co. (6 C. D. O. 346; 9 C. C. O. 348 505 
 
 Sobieski v. Railway Go. (41 Minn. 169) 93, 140 
 
 Soeder v. Railway Co. (100 Mo. 673) ' 381 
 
 Solen V. Virginia & Truckee Rd. Co. (13 Nev. 106) .. 65, 88, 129, 155 
 
 Solomon Railroad Co. v. Jones (34 Kan. 443; 8 Pac. Rep. 730) 501 
 
 So Relle v. Tel. Co. (55 Tex. 310; 40 Am. Rep. 805) . .'. 227 
 
 Sorenson v Railway Co. (45 Fed. Rep. 407) 371 
 
 Sorensen v. Balaban (42 N. Y. Supp. 654; 11 App. Div. 164) 209 
 
 Sounenfeed Millinery Co. v. Railway Co. (59 Mo. App. 668) 463 
 
 South V. Thompson (Del. Super., 39 Atl. Rep. 1100) 294 
 
 South Cotton Press Co. v. Bradley (52 Tex. 587) 400, 392 
 
 South Cov. & C. St. Ry. Co. v. Ware (84 Ky. 267) ... 22, 33, 286, 
 
 291, 435,' 461, 516 
 
 South W. Va. Imp. Co. v. Andrews (86 Va. 270) 432 
 
 Southern Bell Telephone Co. v. Jordan ( 87 Ga. 69) 12 
 
 Southern Kan. Ry. Co. v. Crocker (41 Kan. 747; 13 Am. St Rep 
 
 320) "^ 127 
 
 Southern Kas. Ry. Co. v. Pavey (57 Kan. 521; 46 Pac. Rep. 969).. 295 
 Southern Kan. Ry. Co. v. Rice (38 Kan. 398; 5 Am. St. Rep. 766) 
 
 185, 186, 192, 201, 202, 203, 204 
 Southern Kan. Ry. Co. v. Walsh (45 Kan. 653; 26 Pac. Rep. 45) 
 
 " 87 135 
 
 Southern & N. Ala. R. Co. v. McLendon (63 Ala. 266) .' 
 
 ^ ,^ ■„ „ 21, 27, 41, 63, 69. 86, i'56, 158, 160 
 
 Southern Pac. R. Co. v. Ammons (Tex. Civ. App.; 26 S. W. Rep. 
 
 135 ) " 172 
 
 Southern Pac. Ry. Co. v. Burke (9 C. C. A. 29) 506 
 
 Southern Pac. Co. v. Davidson (44 Fed. Rep. 476) 94 96 
 
TABLE OB CASES. Ixxv 
 
 Southern Pac. Ry. Co. v. Tomlinson (163 U. S. 361) 506 512 
 
 Southern Queen Mfg. Co. v. Morris (105 Tenn. 654- 58 S W Ren 
 
 651) '..:.... 415 
 
 Southern R. R. Co. v. Kendrick (40 Miss. 374; 90 Am. Dec. a32) 
 
 12, 155, 513, 351 
 Southwestern Telg. & Tel. Co. v. Dale (Tex. Civ. App.- 27 S W Rep 
 
 1059) "294 
 
 Spade V. Railway Co. (168 Mass. 285; 38 L. R. A. 512; 47 N. E Rep 
 
 88; 172 Mass. 488; 43 L. R, A. 832) . .164, 165, 167, 172, 173, 174 508 
 Spaulding v. Railroad Co. (142 Pa. St. 503; 12 L. R. A. 698) . . 65, 67, 68 
 
 Spaulding v. Winslow (74 Maine 533) ' 13 
 
 Spear v. Sweeney (88 Wis. 545; 60 N. W. Rep. 1060) 151 
 
 Spear v. Railway Co. (119 Pa. St. 61; 12 Atl. Rep. 824) 442 
 
 Specht V. Railway Co. (19 Phil., Pa., 365) 143 
 
 Spellman v. Railway Co. (35 S. Car. 475; 28 Am. St. Rep. 858) .. 
 
 342, 348, 349, 514 
 
 Spencer v. Railroad Co. (21 Minn. 362) 62 
 
 Spicer v. Railroad Co. (29 Wis. 580) 64, 69, 158 
 
 Spitze V. Railway Co. (75 Md. 162) .'496 
 
 Spokane, etc.. Truck Co. v. Hoefer (2 Wash. 45; 26 Am. St. Rep. 
 
 842) 343 
 
 Sprague v. Atlee (81 Iowa 1; 46 N. W. 786) 138 
 
 Sprague v. Craig (51 111. 288) 254 
 
 Springfield Con. St. Ry. Co. v. HoefEner (71 111. App. 162) 324 
 
 Squires v. Inhabitants, etc. (145 Mass. 192) 496 
 
 Staal V. Railway Co. (57 Mich. 239; 23 N. W. Rep. 795) 380, 490 
 
 Staal V. Railway Co. (107 N. Y. 625; 13 N. B. 624) 51, 370 
 
 Stacy V. Portland Pub. Co. (68 Me. 279) 511 
 
 Stafford v. Oskaloosa (64 Iowa 251) 98, 160, 508, 510 
 
 Stafford v. Rubens (115 111. 196; 3 N. E. Rep. 568) 326, 370, 437 
 
 Stafles V. Schmid (18 R. I.; 19 L. R. A. 824) 357 
 
 Staley v. Portland Pub. Co. (68 Me. 279) 346 
 
 Standard Oil Co. v. Tierney (92 Ky. 367; 36 Am. St. Rep. 595) .. 
 
 64, 69, 72, 87, 158 
 
 Starbird v. Barrows ( 62 N. Y. 615) 515 
 
 State V. Cecil Co. Comrs. (54 Md. 426) 494 
 
 State V. Grand Tr. Ry. Co. (58 Me. 176) 367 
 
 State V. McCann (20 O. S. 198) 200 
 
 State V. Manchester, etc., Rd. Co. (52 N. H. 528) 367 
 
 State V. Mathews (98 Mo. 125) 457 
 
 State V. Mollsse (38 La. Ann. 381) 446, 452 
 
 State V. People (111., 30 N. B. Rep.) 491 
 
 State V. Probate Court (51 Minn. 241) 30 
 
 State V. Railroad Co. (24 Md. 106) 329 
 
 State V. Railway Co. (23 N. J. L. 369) 354 
 
 State V. Railway Co. (52 N. H. 528) 433 
 
 State V. Railway Co. (24 Md. 271) 39? 
 
 Staufer v. Miller Soap Co. (151 Pa. St. 330) i 
 
 Steamboat New World v. King (16 How. 469) 433 
 
 Stearns v. Riley (135 111. 119; 25 N. E. Rep. 762) 12T 
 
 Steele v. Kurtz (28 Ohio St. 191) 329, 370, 372, 393, 437 
 
 Stein V. Railway Co. (10 Phil. 440) 457 
 
 Steinbrunner v. Railway Co. (146 Pa., St. 504; 23 Atl. Rep. 239) . . Ill 
 
Ixxvi TABLE OF CASES. 
 
 Page. 
 
 Stephens v. Railroad Co. (96 Mo. 207; 9 Am. St. Rep. 336) 
 
 21, 64, 88, 489 
 
 Stevenson v. Belknap (6 Iowa 103; 71 Am. Dec. 392) 235 
 
 Stevenson v. Brown (147 Pa. St. 350) 342 
 
 Stevenson v. Morris (37 0. S. 10) 500 
 
 Stewart v. Everts (76 "Wis. 35; 44 N. W. Rep. 1092; 20 Am. St. Rep. 
 
 17) 83 
 
 Stewart v. Davis (31 Ark. 518) 498 
 
 Stewart v. Maddox [63 Ind. 51) 64, 87, 156, 168, 213, 235 
 
 Stewart v. Ripon (30 Wis. 614) 64 
 
 Stewart v. Ripon (38 Wis. 584) 154, 158, 161, 278, 284, 286, ii,6 
 
 Stewart v. Railroad Co. (103 Ind. 44) 385 
 
 Stimpson v. Railroad Co. (2 Wall. Jr. 164) 17 
 
 Stockstill V. Railroad Co. (24 Ohio St. 83) 512 
 
 Stockton V. Prey (4 Gill., Md., 406; 45 Am. Dec. 138) 88, 489 
 
 Stockton, etc., Gravel R. R. Co. v. Railroad Co. (53 Cal., 11) 5 
 
 StoU V. Mining Co. (19 Utah 271; 57 Pac. Rep. 295) 89 
 
 Stoher v. Railway Co. (91 Mo. 509) 380, 382 
 
 Storme v. Hanford Prod. Co. (108 Iowa 137; 78 N. W. Rep. 841). 
 
 Ill, 130 
 
 Stone V. Chic. & N. W. Ry. Co. (47 la. 88; 29 Am. Rep. 458) 235 
 
 Stone V. Pendleton (21 R. I. 332; 43 Atl. Rep. 643) 89, 148 
 
 Stone V. Railway Co. (66 Mich. 76; 30 A. & B. R. Cases 600) 494 
 
 Stouter V. Street Ry. Co. (6 N. Y. Supp. 163; 27 N. E. Rep. 805) . . 129 
 
 Stover V. Bluehill (51 Me. 439) 36 
 
 Stowe V. Heywood (7 Allen Mass. 118) 210 
 
 Strand v. Railroad Co. (67 Mich. 380) 491 
 
 Straight v. Odell (13 Bradw. 232) 434 
 
 Strang v. Railway Co. (1 Mo. App. 209) 172 
 
 Strange v. Railway Co. (1 Mo. App. R. 209) 175 
 
 Street Railway Co. v. Altemeier (60 Ohio St. 10, 17) 383 
 
 Street Ry. Co. v. Nolthenuis (40 Ohio St. 376) 431 
 
 Strlbley v. Welz (4 C. D. O. 520; 8 C. C. 0. R. 571 ) 250, 251, 254 
 
 Strohn v. Railroad Co. (96 N. Y. 305) 71, 75, 88, 158, 459 
 
 Strong V. Pickering Hardware Co. (6 C. D. O. 212; 9 C. C. O. 249) . 433 
 
 Strong V. Railroad Co. (94 Iowa 380; 62 N. W. Rep. 799) 137, 138 
 
 Stronger v. Hove (41 Wis. 659) 520 
 
 Strutsel V. City Ry. Co. (47 Minn. 543) 388, 411 
 
 Stuart V. Havens (17 Neb. 211) 474 
 
 Stuart V. Inhabitants, etc. (48 Me. 477) 491 
 
 Stuart V. Maddox (63 Ind. 51) 210 
 
 Stuart V. Telegraph Co. (66 Tex. 580; 59 Am. Rep. 623) ........... 
 
 218, 227, 228, 229 
 
 Stuart V. Western TJ. T. Co. (76 Tex. 689) 391 
 
 Strudgeon v. Sand Beach (107 Mich. 496; 65 N. W. Rep. 616) 81 
 
 Sturgeon v. Sturgeon (4 Ind. App. 232; 30 N. E. Rep. 805) 81 
 
 Stutz V. Railway Co. (73 Wis. 14V; 9 Am. St. Rep. 769) . 41 64 
 
 69, 71, 93, 154, 156, 161, 185, 193, 310, 311, 312, 313! 516 
 
 Stuyvesant v. Wilcox (92 IVuch. 233; 31 Am. St. Rep. 580) 353 
 
 Sullivan v. Oregon Ry. & Nav. Co. (12 Or. 392; 53 Am. R. 364; 
 
 7 Pac. Rep. 508) 204, 348, 355 
 
 Sullivan v. Phila. & Red. Co. (30 Pa. St. 234) 443 
 
 Sullivan v. Railroad Co. (39 La. Ann. 800) '....'.'.'.'.'.'. 617 
 
 Sullivan v. Railway Co. (112 N. Y. 643; 8 Am. St. Rep. 793) ...... 35 
 
TABLB OF CASES. Ixxvii 
 
 Page. 
 
 Summerfield v. West. U. Tel. Co. (87 Wis. 1) 230 
 
 Sunny v. Holt (15 Fed. Rep. 880; 5 O. F. D. 231) 3 
 
 Summers v. Bergner B. Co. (143 Pa. St. 114; 24 Am. St. R. 518)!.! 512 
 
 Sutlife T. Gilbert (8 Ohio 405) 520 
 
 Sutton V. Wanwatosa (29 Wis. 21) 498 
 
 Swarthout v. Steamboat Co. (46 Barb. 222) . . . . ; 65 
 
 Sweeney v. Butte (15 Mont. 274; 39 Pac. Rep. 286) 88 
 
 Swift V. Dickerman (31 Conn. 285) 185 208 
 
 Swift V. Railroad Co. (123 N. Y. 645) ' 512 
 
 Sydleman v. Beckwith (43 Conn. 9) 458 
 
 Sylvester v. Maag (155 Pa. St. 225; 26 Atl. Rep. 392) 151 
 
 Symons v. St. Ry. Co. ( 58 N. Y., Supp., 327) 49 
 
 Talbot V. Railroad Co. (82 Mich. 66) 445 
 
 Tampke v. Vangsness (72 Minn. 236; 75 N. W. Rep. 217) 255 
 
 Taylor v. Dustin (43 N. n. 493) 59 
 
 Taylor v. Hunt (6 C. D. O. 431; 9 C. C. O. 421) 520 
 
 Taylor v. Monroe (43 Conn. 36) 17, 436, 438, 461 
 
 Taylor v. Railroad Co. (45 Cal. 323) '. 373 
 
 Taylor v. jitailway Co. (Mo., 16 S. W. Rep. 206) 136, 149 
 
 Taylor v. Shelkett (66 Ind. 297) ' 215 
 
 Taylor, B. & H. R. Co. v. Warner (20 S. W. Rep. 823) 415 
 
 Taylor, B. & H. Railway Co. v. Warner (84 Tex. 122; 19 S. W. Rep. 
 
 449) 396 
 
 Taylor, B. & H. Ry. Co. v. Warner (Tex. Civ. App.; 31 S. W. Rep. 
 
 66) 412 
 
 Telfer v. Railroad Co. (30 N. J. L. 88) 309, 388 
 
 Telford v. Frost (76 Wis. 172; 44 N. W. Rep. 835) 460 
 
 Teeterow v. Railway Co. (98 Mo. 74; 14 Am. St. Rep. 614) ... 379, 490 
 Tenn. Coal & R. R. Co. v. Roddy (85 Tenn. 400; 5 S. W. Rep. 286) 
 
 15, 422, 513, 515, 516 
 
 Tenn., etc., R. R. Co. v. Toppins (10 Lea, Tenn., 58) 400 
 
 Terre Haute & I. R. Co. v. Buck (96 Ind. 346; 49 Am. Rep. 168) 
 
 36, 271, 279, 280, 287, 290 
 Terre Haute & Ind. Car Co. v. Brunker (128 Ind. 542; 26 N. E. 
 
 Rep. 178) 64, 155, 164, 172, 466, 471, 474 
 
 Terhune v. Kaellesch (N. X, 43 Atl. 655) 124, 292 
 
 Terry v. Jewett (78 N. Y. 346) 493 
 
 Terwilliger v. Wands (17 N. Y. 54; 72 Am. Dec. 420) 235 
 
 Tex. Cent. Rd. Co. v. Rowland (22 S. W. Rep. 134) 513 
 
 Texas Mex. Rd. Co. v. Douglas (69 Tex. 694) 93 
 
 Texas & Mex. R. Co. v. Douglass (73 Tex. 325; 11 S. W. Rep. 333) 
 
 69, 89, 142, 154, 161 
 Texas & N. O. Ry. Co. v. Carr (Tex. Civ. App.; 42 S. W. Rep. 126; 
 
 91 Tex. 332; 43 S. W. Rep. 18) 147 
 
 Texas & N. O. R. Co. v. Syfan (91 Tex. 562; 43 S. W. Rep. 551) .... 146 
 
 Texas & P. R. Co. v. Bigham (90 Texas 223; 38 S. W. Rep. 162) . . 166 
 
 Texas & P. Rd. Co. v. Bowlin (Tex. Civ. App.; 32 S. W. Rep. 918) . . 128 
 Texas & Pac. Rd. Co. v. Brick (83 Tex. 526; 18 S. W. Rep. 947) 
 
 147, 328, 513 
 Texas & Pac. Ry. Co. v. Cornelius (Tex. Civ. App.; 30 S. W. Rep. 
 
 720) 21, 29, 32 
 
 Texas & Pac. Rd. Co. v. Casy (52 Tex. 112) 192 
 
 Texas & Pac. R. Co. v. Curry (64 Tex. 85; 21 Am. & Bng. R. Cases, 
 
 448) '^'^ 
 
Ixxviii TABLE OF CASES. 
 
 Page. 
 Texas & Pac. Ru. Co. v. Davidson (Tex. Civ. App.; 21 S. W. 68) . . a 
 
 Texas Pac. R. R. Co. v. Davidson (68 Tex. 370) 13, 140 
 
 Texas & P. Ry. Co. v. Geiger (79 Tex. 13; 15 S. W. Rep. 214) .... 419 
 Texas & P. Ry. Co. v. Hudman (8 Tex. Civ. App. 309; 28 S. W. Rep. 
 
 Qgg\ 418 
 
 Texas Pac. Ry. Co. v. Jolinston (76 Tex. 421; 18 Am. St. Rep. 60) 
 
 -^ 89, 129, 131, 139 
 
 Texas & Pac. Ry. Co. v. Jones (39 S. W. R., 124; 1 Am. Neg. Rep. 
 
 53-1^) 188,192 
 
 Texas & Pac. Rd. Co. v. Lee (51 S. W. 351) ■ 32 
 
 Texas & Pac. R. R. Co. v. Lester (75 Tex. 56) 426 
 
 Texas & Pac. R. Co. v. Lowry (61 Tex. 149) 139 
 
 Texas & Pac. Ry. Co. v. Neal (Tex. Civ. App.; 33 S. W. Rep. 693) . . 39 
 Texas & Pac. Rd. v. O'Donnell (58 Tex. 27; 10 Am. & Neg. Rd. Cases 
 
 ^-|2) 92,459 
 
 Texas Pac.Ri'R. Co.'V.bverliler (76 Tex. 437; 13 S. W. Rep. 
 
 468) 93,143 
 
 Tex & Pac R. R. Co. v. Robertson (82 Tex. 657; 27 Am. St. Rep. 
 
 929) 422,512 
 
 Texas & P.' Rd. Co.' v. Cox (145 U. S. 593) 437, 439, 440 
 
 Texas & P. R. R. Co. v. Curry (64 Tex. 85) 161, 436 
 
 Texas & P. Rd. Co. v. Davidson (3 Tex. Civ. App. 542) 100 
 
 Texas & P. R. Co. v. Echols (Tex. Civ. App.; 25 S. W. Rep. 1087) . 144 
 
 Texas & P. R. R. Co. v. Lester (75 Tex. 56) 402 
 
 Texas & P. Rd. Co. v. Morin (66 Texas 133) 326 
 
 Texas & P. Rd. Co. v. Murphy (46 Tex. 356) 431 
 
 T C R. Co. V. Burlie (55 Houston) 3 
 
 The A Heaton (43 Fed. Rep. 592) 131, 142, 410 
 
 The Alaska (130 U. S. 201) 410. 411 
 
 The Alijandro (56 Fed. Rep. 621) 21 
 
 The City of Carlisle (39 Fed. Rep. 807; 54 L. R. A. 52) 410 
 
 The Civil Rights Bill (W. Dist., N. Car., 1 Hughes 541) 200 
 
 The Columhia (27 Fed. Rep. 704; 23 Fed. Rep. 900) 410 
 
 The Corsair (145 U. S. 535) 402 
 
 The E B. Ward (17 Fed. Rep. 456; 23 Fed. Rep. 900) 410 
 
 The Harrisburg (119 U. S. 199) 409, 410 
 
 The Highland Light (Chase Dec. 151) 411 
 
 The Maggie Hammond (9 Wall. 162) ; 410 
 
 The Maggiolo v. The Mineola (44 Fed. Rep. 143) 135 
 
 The Max x,iorris (137 U. S. 1) 411, 433 
 
 The Oceanic (61 Fed. Rep. 338) 388, 413, 427 
 
 The Oriental v. Barclay (Tex. Civ. App.; 41 S. W. 117) 32 
 
 The Oriflamme (3 Sawyer, U. S., 397) ' 168 
 
 The Oregon (45 Fed. Rep. 62) 411 
 
 The Persian Monarch (49 Fed. Rep. 669) 137 
 
 The Pioneer (78 Fed. Rep. 600) 136, 151 
 
 The Robert Graham Dun (70 Fed. Rep. 270; 17 C. C. A. 90) 427 
 
 The Sea Gull (Chase Dec. 145) 410, 411 
 
 The Sidney (27 Fed. Rep. 119) 442 
 
 The Sue (22 Fed. 843) 200 
 
 The Sylvan Grove (9 Fed. Rep. 335) 411 
 
 The Washington v. The Gregory (9 Wall. 513) 143 
 
 Theobald v. Railway Pass. Ass'n (20 Bng. L. & Eq. 432) 65 
 
TABLE OF CASES. Ixxix 
 
 Theobald v. Railway Passenger Assur. Co. (10 Bxcheq. 45; 2 C L R 
 
 1034) ■ 2j^ 
 
 Thill V. Polman (76 Iowa 638) . . .'. 264 351 
 
 Thomas v. Dansby (74 Mich. 398) ' 259 
 
 Thomas v. Town of Brooklyn (58 Iowa 438; 10 N. W. Rep. 849) .... 
 
 59, 310, 311 
 
 Thomas v. Railway Co. (45 N. Y. Supp. 920) 136 
 
 Thomas v. Union Railway Co. (18 N. Y. App. Div. 185) ...... 121 144 
 
 Thompson v. Herman (47 Wis. 612) '433 
 
 Thompson v. Metropolitan St. Ry. Co. (Mo. App.; 36 S. w! Rep. 
 
 625) .... 294! 310 
 
 Thompson v. Railroad Co. (91 Ala. 496; 8 S. Rep. 406) 439 510 
 
 Thompson v. Railway Co. (51 Mo. 190; 11 Am. Rep. 443) .'433 
 
 Thompson v. Railway Co. (71 Minn. 89; 73 N. W. Rep. 707) 141 
 
 Thompson v. Stevens ( 71 Pa. St. 161) 458 
 
 Thompson v. Telegraph Co. (106 N. C. 549) 229 
 
 Thompson v. Telegraph Co. (107 N. C. 449) 155, 218, 229 
 
 Thorp V. Town of Brookfield ( 36 Conn. 320) '.....' 491 
 
 Thurston v. Martin (5 Mason, N. S., 497) 514 515 
 
 Tice V. Munn (94 N. Y. 621) ; . . .' 286 
 
 Tierney v. Railway Co. (32 N. Y. Supp. 627) 130 
 
 Tilley V. Railroad Co. (29 N. Y. 53) 376, 380, 381, 382, 383, 378, 516 
 
 Tinney v. Steamboat Co. (5 Lansing 507) 127 
 
 Titus V. Corkins (31 Kan. 732) 35I 
 
 Tobin V. Shaw (45 Me. 331; 71 Am. Dec. 547) 250, 252, 400 
 
 Todd V. 2d. Ave. Traction Co. (Pa. St.; 6 Am. Neg. Rep. 686) '. 509 
 
 Toland v. Sprague (12 Pet., U. S., 300) 502 
 
 Toledo V. Colpeck (9 C. D. 0. 432; 17 C. 0. 0. 585) .. 3, 65, 88, 506 
 
 Toledo V. Duffy (7 C. D. O. 113; 13 C. C. O. R. 482) 295 
 
 Toledo V. Higgins (7 C. D. 0. 29; 12 C. C. 0. 646) 64, 88, 140 
 
 Toledo, Ann Arbor & North Mich. Ry. Co. v. Ry. Co. (54 Fed. Rep. 
 
 730) 7 
 
 Toledo & O. C. R. Co. v. Frick (8 C. D. O. 28) 513, 515 
 
 Toledo & W. Ry. Co. v. Beggs (85 111. 80) 442 
 
 Toledo Con. St. Ry Co. v. Mammet (6 C. D. O. 244; 13 C. C. 0. 470) . 419 
 Toledo Con. St. Ry. Co. v. Rohner (6 C. D. O. 706; 9 C. C. O. R. 702) 
 
 41, 64, 88, 702 
 Toledo Con. St. Ry. Co. v. Sweeney (4 C. D. O. 11; 8 C. C. 0. 298) 
 
 64, 88, 106, 132, 168, 169 
 Toledo Elec. St. Ry. Co. v. Tucker (7 C. D. O. 169; 11 C. C. O. 441) 
 
 25, 27, 28, 41, 64, 88, 132 
 
 Toledo, etc., R. R. Co. v. Arnold (43 111. 418) 5 
 
 Toledo, etc., Rd. Co. v. Baddeley (54 111. 19; 5 Am. Rep. 71) 
 
 64, 87, 93, 126, 155, 160, 475 
 
 Toledo, etc., Rd. Co. v. Beals (50 111. 150) 520 
 
 Toledo Railway Co. v. Brannagan (75 Ind. 490; 5 Am. & Eng. Rd. 
 
 Cas. 635) '. 432 
 
 Tomlinson v. Derby (43 Conn. 562) 17, 371, 438 
 
 Tomlinson v. Warner ( 9 Ohio 103) 214 
 
 Tompkins v. West (56 Conn. 478; 16 Atl. Rep. 237) 28, 29, 293 
 
 Toomey v. Delaware, L. & W. R. Co. (24 N. Y. Supp. 108) 212 
 
 Toomey v. Stamping Co. (11 C. D. O. 216; 20 C. C. O. R. 183) 437 
 
 Topeka v. Bradshaw (Kan. App., 48 Pac. Rep. 751) 144 
 
Ixxx TABLE OF CASES. 
 
 Page. 
 
 Torre v. Summers (10 Am. Dec. 597) 216 
 
 Totten V. Railroad Co. (11 Fed. Rep. 564) 4, 15, 21, 24, 
 
 41, 65, 86, 97, 508 
 
 Town of Elkhart v. Ritter (66 Ind. 136) 81 
 
 Town of Wappanee v. Ruckman (7 Ind. App. 361; 34 N. B. Rep. 
 
 609) 69 
 
 Townsend v. Briggs (88 Cal. 230; 26 Pac. 108) 517 
 
 Townsend v. Briggs (99 Cal. 481; 34 Pac. Rep. 116) Ill, 160 
 
 Townsend v. City of Paola (41 Kan. 591; 21 Pac. Rep. 596) 5, 69, 87 
 
 Townsend v. Railroad Co. (56 N. Y. 295; 15 Am. Rep. 419) 4 
 
 Trapnell v. City of Red Oak June. (76 Iowa 744) 284 
 
 Travelers' Ins. Co. v. Mosley (8 Wall. 397) 446 
 
 Traver v. Street Ry. Co. (3 Keyes, N. Y., 497) 326, 327, 331 
 
 Trawlck v. Martin Brown Co. (79 Tex. 460) 208 
 
 Treadwell v. Whittier (80 Cal. 575; 13 Am. St. Rep. 175) 
 
 17, 33, 86, 435, 436, 442, 443, 460, 461 
 
 Tregent v. Maybe (54 Mich. 226) 408 
 
 Trice V. Chesapeake & 0. Rd. Co. (40 W. Va. 271; 21 S. E. Rep. 
 
 1022) 150 
 
 Trigg V. Railroad Co. (74 Mo. 147; 41 Am. St. Rep. 305) . . 172, 175, 239 
 Trinity & Sabine R. Co. v. Lane (79 Tex. 643; 15 S. W. Rep. 477) . . 131 
 
 Trundell v. Combs (33 Ohio St 186, 195) 362 
 
 Tully V. Steamship Co. (10 N. Y. App. Div. 463) 68 
 
 Tunniclifte v. Railway Co. (102 Mich. 624; 61 N. W. Rep. 11) 308 
 
 Turquad v. Strand. Union (8 Dowling 201; S. C. 4 Jurist 74) 468 
 
 Turner v. Hearst (115 Cal. 394; 47 Pac. Rep. 129) 209 
 
 Turner v. Railroad Co. (15 Wash. 213) 41, 52 
 
 Turner v. Railroad Co. (158 Mass. 261) 27 
 
 Turner v. Railway Co. (34 Cal. 594) 355 
 
 Turner v. State (3 C. D. O. 263) 513, 515 
 
 Turnpike Co. v. Andrews (102 Ind. 138; 1 N. E. Rep. 364) 93 
 
 Tuteur v. Railway Co. ( 77 Wis. 505) 379 
 
 Tuttle V. Farmington (58 N. H. 13) 36 
 
 Tuttle T. Railway Co. (42 Iowa 518) 293, 310, 311 
 
 Tyler v. Telegraph Co. (47 Fed. Rep. 544) 175 
 
 Tyler v. Telegraph Co. (54 Fed. Rep. 634) 160, 174, 247 
 
 Tyler S. E. Ry. v. McMahon (34 S. W. Rep. 796) 418 
 
 Tyler & S. E. Railway Co. v. Rasberry (13 Tex. Civ. App. 185; 34 
 
 S. W. Rep. 794) 382 
 
 Tyson V. Booth (100 Mass. 266) 88 
 
 Tyson v. Ewing (3 J. J. Marsh, Ky., 186) 17 
 
 TJldrick v. Gilmore (35 Neb. 288; 53 N. W. Rep. 135) 257, 259 
 
 Union Pac. Rd. Co. v. Bottsford (141 V. S. 250; 47 Am. & Eng. R. 
 
 C. 414) 466, 475 
 
 Union Pac. Rd. Co. v. Dundee (37 Kan. 1) 370, 388, 413, 437, 518 
 
 Union Pac. Ry. Co. v. Hause (1 Wyo. 27) 516 
 
 Union Pac. Ry. Co. v. Jones (49 Fed. Rep. 343) 65, 69, 71, 
 
 293 343 
 Union Pac. R. Co. v. Navok (61 Fed. Rep. 573; 9 C. C. A. 629) ... .' 82 
 Union Pac. Ry. Co. v. Reese (56 Fed. Rep. 288; 5 C. C. A. 510) ... 491 
 Union Pac. R. Co. v. Yates (79 Fed. Rep. 584; 40 L. R. A. 553) .. 
 Union Warehouse v. Prewitt (21 Ky. L. Rep. 67- 50 S W Rep 
 
 964) ■....■.... 424 
 
TABLE OF CASES. Ixxxi 
 
 Page. 
 
 United States v. Dodge (6 How., U. S., 279) 502 503 524 
 
 United States v. Bunton (10 Fed. Rep. 730) !....' 200 
 
 United States v. Juniata (93 U. S. 337) isG 291 
 
 United States v. Railroad Co. (123 U. S. 113) ............. .' 509 
 
 United States v. Smith (4 Otto, U. S., 214) 4 
 
 Uransljy v. Dry Doclc E. B. & B. R. Co. (118 N. Y. 304; 23 N W Rep 
 
 451; 16 Am. St. Rep. 759) ■ 59 311 
 
 Urman v. Street Ry. Co. (14 N. Y. Supp. 336) ! 338 
 
 Usher v. Railway Co. (126 Pa. St. 206; 4 L. R. A. 261) 
 
 369, 370, 385, 437, 439, 440 
 Vail V. Railway Co. (6 Misc. Rep., N. Y., 20; 26 N. Y. Supp. 59) 144, 145 
 
 Vallo V. Express Co. (147 Pa. St. 404; 30 Am. St. Rep. 741) ' 35 
 
 Van Auken v. Railway Co. ( 96 Mich. 307) 498 
 
 Van Brunt v. Railroad Co. (78 Mich. 530; 44 N. W. Rep. 321) 
 
 370, 373, 438 
 
 Vanderburg v. Truax (4 Den. 10, N. Y., 464) 271 
 
 Vanderpool v. Richardson (52 Mich. 336) 250, 252 
 
 Van de Venter v. Railway Co. (26 Fed. Rep. 32) 4, 21, 160 
 
 Vanhorn v. Dorance (2 Dall., U. S., 304) 6 
 
 Van Ingen v. Star Co. (157 N. Y. 695; 51 N. E. Rep. 1094) 209 
 
 Van Winter v. Henry Co. (61 Iowa 684; 2 Am. & Eng. R. R. Cases 
 
 512) 140, 520 
 
 Varnham v. Council Bluffs ( 52 Iowa 698) 25 
 
 Varrilet v. Railway Co. (11 La. Ann. 8'8) 350 
 
 Verrill v. Minot (31 Me. 299) 65 
 
 Vicksburg v. McLain (67 Miss. 4) 382, 389 
 
 Vicksburg, etc., Rd. Co. v. Phillips (64 Miss. 693; 2 South. Rep. 
 
 537) 399, 409 
 
 Vicksburg, etc., R. Co. v. Putnam (118 U. S. 546) 
 
 3, 4, 6, 21, 41, 42, 65, 86, 93, 102, 111, 115, 509 
 Victoria Railway Comr's v. Coultas (13 App. Cas. 222) ... 164, 172, 
 
 173, 174, 176, 245, 247 
 
 Village of Chatsworth v. Rowe (116 111. 114) 42 
 
 Vinal V. Core (18 W. Va. 1) 161 
 
 Virginia Midland Ry. Co. v. White (84 Va. 498; 10 Am. St. Rep. 
 
 498) 512, 513 
 
 Volans V. Owen (74 N. Y. 526; 30 Am. Rep. 337) 262 
 
 Voltz V. Blackmar (64 N. Y. 440) 17, 351, 363 
 
 Vosburg V. Putney (80 Wis. 523; 27 Am. St. Rep. 47) 85, 125 
 
 Vosburg V. Putney (86 Wis. 278; 14 L. R. A. 226) 286 
 
 Vredenburg v. Railway Co. ( 58 Hun 607) 141 
 
 Vredenburg v. Railway Co. (12 N. Y. Supp. 18) 132 
 
 Wabash Cent. Pac. R. R. Co. v. Shevers (18 111. App. 52) 421 
 
 Wabash Co. Comr's v. Pearson (120 Ind. 426; 16 Am. St. Rep. 325; 
 
 22 N. E. Rep. 134) 82 
 
 Wabash Ry. Co. v. Brow (65 Fed. Rep. 941) 452 
 
 Wabash Ry. Co. v. Savage (110 Ind. 157) 436 
 
 Wabash, St. L. & P. R. Co. v. Rector (104 lU. 296) 350 
 
 Wabash Western R. Co. v. Friedman (41 111. App. 270) 132 
 
 Wabash, W. Ry. Co. v. Morgan (Ind., 31 N. B. Rep. 661) . . 64, 87, 160 
 
 Wade V. Backward (48 Ark. 396) 156 
 
 Wade V. Leroy (61 U. S., 20 How., 34) 21, 41, 51, 65, 
 
 96, 102, 160, 436 
 
Ixxxii TABLE OF CASES. 
 
 Page. 
 
 Wadele v. Railroad Co. ( 61 How. Pr. 350) 456 
 
 Wadsworth v. Telegraph Co. (86 Tenn. 695; 6 Am. St. Rep. 864) . . . 
 
 218, 219, 221, 229, 242 
 
 Wadsworth v. Treat (43 Me. 163) 185, 208 
 
 Waldele v. N. Y. Cent. R. R. Co. (95 N. Y. 674; 47 Am. Rep. 41) .448, 457 
 
 Waldele v. Railway Co. (19 Hun 69; 61 How. Pr. 350) 492 
 
 Waldhier v. Railway Co. ( 70 Mo. 514) 433 
 
 Waldhier v. Railway Co. (87 Mo. 37) 513, 514 
 
 Waldron v St. Paul (22 N. W. Rep. 4; 33 Minn. 87) 130 
 
 Walker v. Erie Railway Co. (63 Barb. 260) 11, 21, 41, 51, 52, 
 
 Walker v. McNeill (17 Wash. 582) 382, 389 
 
 Walker v. Pittman (108 Ind. 341) 25 
 
 65, 67, 88, 89, 132 
 Walker v. Railway Co. (104 Mich. 606; 69 N. W. Rep. 1144) . . . 381, 382 
 
 Walker v. Springfield (3 Ohio Dec. Rep., 567) 5, 20, 124 
 
 Wall V. Livezay (6 Colo. 465) 87, 160 
 
 Wallace v. Oil Co. (12 N. Y. Supp. 425; 27 N. E. Rep. 956) 
 
 133, 286, 290 
 
 Wallace v. Railroad Co. (104 N. C. 42; 10 S. E. Rep. 552) 
 
 21, 64, 89, 96, 155, 161 
 
 Wallace v. Railway Co. (69 Iowa 547) 496 
 
 Wallace v. Vacuum Oil Co. ( 59 Hun 616) 128 
 
 Wallace v. Wilmington & N. R. Co. (8 Houst., Del., 529; 18 Atl. Rep. 
 
 818) 27, 65, 69, 87, 156, 158, 160 
 
 Walls V. Railway Co. (36 N. Y. S. 1102) 422 
 
 Walsh V. Chic. M. & St. P. R. Co. (42 Wis. 23; 24 Am. Rep. 376) 235 
 
 Walsh V. Sayer (52 How. Pr. 334) 468 
 
 Walter v. Railroad Co. (39 la. 33) 421 
 
 Walters v. Railway Co. (41 la. 71) Ill, 114, 386 
 
 Wanamaker v. Bowers (36 Md. 42) 4 
 
 Ward V. Blackwood (48 Ark. 396) 64 185 
 
 Ward V. Flood (48 Cal. 36, 45) 200 
 
 Ward V. Thompson (48 Iowa 588) 257, 260 
 
 Ward V. Weeks (7 Bing. 211) 182 
 
 Ward V. White (86 Va. 212; 19 Am. St. Rep. 883) 12, 201, 
 
 202, 446, 450, 455, 457, 514, 515, 516, 517 
 
 Wardle v. Railway Co. (35 La. Ann. 202 ) 88 
 
 Warner v. Chamberlain (7 Houst., Del., 18; 30 Atl. Rep. 638) ... .. 87 
 
 Warren v. Englehdrt (13 Neb. 383) 372 
 
 Warren v. Railway Co. (163 Mass. 484; 40 N. E. Rep. 805) .. 88 165, 176 
 
 Warren v. Warren (89 Mich. 123; 14 L. R. A. 545) ' 314' 315 
 
 Washington v. Railroad Co. ( 17 W. Va. 190 ) ' 13 
 
 Washburn v. Railway Co. (59 Wis. 364) 519 
 
 Washington & G. R. Co. v. Hickey (12 D. C. 269) . .'.'.'.'.'.'." "293 '294 462 
 Washington- & 6. R. R. Co. v. Harmon (147 U. S. 571) 69 86* 463 
 
 Washington & G. Rd. Co. v. McDade (135 U. S. 554) ' ' 433 
 
 Wattermon v. Chic. & A. Ry. Co. (82 Wis. 613; 52 N. W. Rep. '247) 
 
 64, 69, 71, 76, 154, 463 
 
 Waters v. Bristoll (26 Conn. 398) 518 
 
 Watson V. Street Ry. Co. (53 Minn. 551; 55 N. W. Rep. 742) 133 
 
 Watters v. Railway Co. (44 Mo. App. 245) . . 79 
 
 Watts V. Railway Co. (39 W. Va. 196; 45 Am. St. Rep.'894) 510 
 
TABLE OF CASES. Ixxxiii 
 
 Page. 
 
 Weaver v. Bachert (2 Pa. St. 60; 44 Am. Dec. 178n) 210 
 
 Webb V Oilman (80 Me. 177) 351 
 
 Webb V. Railway Co. (7 Utah 17) 393 
 
 Webb V. Railway Co. (7 Jtah 363; 26 Pac. Rep. 981) 381, 396 
 
 Weber v. Creston (75 Iowa 16; 39 N. W. Rep. 126) 87 
 
 Weber v. Wiggins (1 C. D. O. 84; 11 C. C. O. 18) 257 
 
 Wedekind v. Railway Co. (20 Nev. 292; 21 Pac. Rep. 289) 93, 292 
 
 Weed V. Railroad Co. (17 N. Y. 362; 72 Am. Dec. 474) 4 
 
 Weeks v. Railway Co. (32 La. Ann. 615) 491 
 
 Weiler v. Railway Co. (6 N. Y. Supp. 320) 74, 129 
 
 Weier v. Railway Co. (12 Mo. App. 35) 297 
 
 Welch V Durand (36 Conn. 182) 500 
 
 Welch V. Jugenheimer (56 Iowa 11; 8 N. W. Rep. 673) 263 
 
 Welch V. Railroad Co. (12 Rich. 290) 500 
 
 Welch V. Railroad Co. (86 Me. 552) 428 
 
 Welch V. Ware (32 Mich. 77) 21, 49, 58, 64, 88, 155, 185, 210, 212, 514 
 
 Wellington v. Downer Kerosene Co. (104 Mass. 64) 4 
 
 Wellman v. Sun Printing & Pub. Ass'n ( 66 Hun 331 ) 209 
 
 Wells V. Bartlett ( 10 Mass. 470) 12 
 
 Wells V. Street Ry. Co. (6 C. D. 0. 137; 9 C. C. O. 340) 506 
 
 Wentworth v. Jefferson (60 N. H. 158) 498 
 
 Wertz V Railroad Co. (30 Bull., Ohio, 280) 520 
 
 Wescott V. Railroad Co. ( 61 Vt. 438) 373 
 
 Wesley v. Railway Co. (84 Iowa 441; 51 N. W. Rep. 163) 87 
 
 West V. Forrest (22 Mo. 344) 155, 210 
 
 West V Telegraph Co. (39 Kan. 93; 7 Am. St. Rep. 530) 
 
 175, 218, 230, 247 
 West Memphis Packet Co. v. White (99 Tenn. 256; 41 S. W. Rep. 
 
 583; 38 L. R. A. 427) 89 
 
 Westchester & P. R. Co. v. Miles (55 Pa. St. 209) 200 
 
 West Chicago St. Ry. Co. v. Bode (150 111. 396; 37 N. E. Rep. 879) 
 
 133, 149 
 West Chic. St. Ry. Co. v. Foster (175 111. 396; 51 N. E. R. 690) . . 
 
 41, 64, 163 
 West Chicago St. Ry. Co. v. James (69 111. App. 609; 2 Am. Neg. 
 
 Rep. 700) 69, 142, 172, 268 
 
 West Chicago St. R. Co. v. Sups (74 111. App. 420) 129 
 
 West Chicago St. Ry. Co. v. Musa (80 111. App. 223) 87 
 
 Western & Atl. Rd. Co. v. Drysdale (51 Ga. 644) 64, 141, 156 
 
 Western & Atl. Rd. Co. v. Abbott (74 Ga. 851) 64 
 
 Western & Atl. Rd. Co. v. Brown (102 Ga. 13; 29 S. E. Rep. 130) . . 462 
 
 Western & Atl. R. R. Co. v. McCauley (68 Ga. 818) 404 
 
 Western & Atl. Rd. Co. v. Moore (94 Ga. 457) 87, 107 
 
 Western & AtL Rd. Co. v. Strong (52 Ga. 461) 367 
 
 Western and Atl. R. Co. v. Young (81 Ga. 397; 12 Am. St. Rep. 320) 
 
 3; 14, 15, 64, 65, 71, 87, 89, 90, 171, 335, 337, 403, 462, 463, 513 
 Western Brewing Co. v. Meredith (166 111. 306; 46 N. B. Rep. 720) . . 160 
 Western Union Tel. Co. v. Adams (75 Tex. 531; 16 Am. St. Rep. 920) 
 
 217, 227, 228, 229 
 
 Western Union Tel. Co. v. Broesche (72 Tex. 654) 218, 227, 
 
 228, 229, 391, 513, 516 
 
 Western Union Tel. Co. v. Carter (2 Tex. Civ. App. 624) 229 
 
 Western Union Tel. Co. v. Cooper (71 Tex. 507; 10 Am. St. Rep. 
 
 772) 218, 154, 227, 266, 267, 268 
 
Ixxriv TABLE OF CASES. 
 
 Page. 
 
 Western Union Tel. Co. v. Cunningham (99 Ala. 309) 203 
 
 Western Union Tel. Co. v. Cunningham (99 Ala. 314) 218 
 
 Western Union Tel. Co. v. Eyser (91 U. S. 495) 514 
 
 Western Union Tel. Co. v. Peegles (75 Tex. 537) 227, 228 
 
 Western Union Tel. Co. v. Henderson (89 Ala. 510; 1 Am. St. Rep. 
 
 148) 218, 229, 347 
 
 Western Union Tel. Co. v. Houghton (82 Tex. 561) 203 
 
 Western Union Tel. Co. v. McCall (Kan., 6 Am. Neg. Ren. 520) . . 68, 248 
 
 Western Union Tel. Co. v. McLeod (22 S. W. Rep. 988) 203 
 
 Western Union Tel. Co. v. Moore (76 Tex. 66; 18 Am. St. Rep. 25) 
 
 227, 228 
 Western Union Tel. Co. v. Nations (82 Tex. 539; 27 Am. Se. Rep. 
 
 914) 227,238 
 
 Western Union Tel. Co. v. Newhouse (6 Ind. App. 422) 218, 229 
 
 Western Union Tel. Co. v. Rogers (68 Miss. 748; 13 L. R. A. 859) 
 
 161, 162, 172, 175, 230, 244, 247 
 
 Western Union Tel. Co. v. Rosentreter (80 Tex. 406) 228 
 
 Western Union Tel. Co. v. Simpson (73 Tex. 422) ... 157, 218, 228, 22» 
 
 Western Union Tel. Co. v. Stephens (2 Tex. Civ. App. 129) 229 
 
 Western Union Tel. Co. v. Stratemeier (6 Ind. Apn. IP'S) 218, 229 
 
 Western Union Tel. Co. v. Wood (57 Fed. Rep. 471; 21 L. R. A. 
 
 710) 160, 164, 175, 230, 243, 247 
 
 Westlake v. Westlake ( 34 Ohio St. 621) 314 
 
 Wheat V. Lowe (7 Ala. 311) 491 
 
 Wheaton v. Railroad Co. (36 Cal. 590) 513 
 
 Whalan v. Railroad Co. (60 Mo. 323) 21, 64, 88, 91, 155, 333, 491 
 
 Whalen v. Railroad Co. (38 Fed. Rep. 15) 69, 86, 93, 111, 285 
 
 Whalen v. Railway Co. (75 Iowa 563; 38 Am. & Eng. Ry. Cases 14) 
 
 9.3, 137 
 
 Wheeler v. Hanson (161 Mass. 370; 42 Am. St. Rep. 408) 214 
 
 Wheeler v. Railway Co. (Tex. Civ. App.; 43 S. W. Rep. 876) 24 
 
 Whelan v. Railway Co. (13 Fed. Rep. 15) 65 
 
 Whipple V. Cumberland Mfg. Co. (2 Story, U. S., 661) 6, 514 
 
 Whitford v. Panama, etc., Rd. Co. (23 N. Y. 465) 367, 368 
 
 White V. Old Dominion Steamship Co. (102 N. Y. 660; 6 N. E. Rep. 
 
 289) 501 
 
 White V. Railroad Co. (61 Wis. 536; 50 Am. Rep. 154) .. 469, 
 
 470, 471, 472 
 
 White V. Sanders (168 Mass. 285) 167 
 
 Whitney v. Milwaukee (65 Wis. 409) 517 
 
 Whiton V. Railroad Co. (12 Wall. 270) 419 
 
 Wichita v. Stallings (Kan., 54 Pac. 689) 134 
 
 Widekind v. Railway Co. (20 Nev. 292; 21 Pac. Rep. 682) 286 
 
 Wiedekind v. Tuolumme (65 Cal. 431; 4 Pac. Rep. 415) 509 
 
 Wightman v. Railway Co. (73 Wis. 169; 2 L. R. A. 186) 5, 185, 187 
 
 Wilcox V. Railroad Co. (52 Fed. Rep. 264) 172 
 
 Wilds V. Began (57 Ind. 453) 215 
 
 Wilhelm v. Railway Co. (52 N. Y. Supp. 1090) 126 
 
 Wilihyk v. Railroad Co. (14 App. Div., N. Y. 515; 1 Am. Neg. Rep. 
 
 640) 332 
 
 Williard v. Holmes (21 N. Y. Supp. 998) 213, 214, 215 
 
 William D. Gibson Co. v. Glizozinski (76 111. App. 400) .' 141 
 
TABLE OF CASES. Ixxxv 
 
 Pagk 
 
 Williams v. Brooklyn (53 N. Y. Supp. 1007) 38 
 
 Williams v. Car Co. (40 La. Ann. 87; 8 Am. St. Rep. 512) 13 
 
 Williams v. City of West Bay City, Mich. (78 N. W. 328) 28 
 
 Williams v. Railroad Co. (91 Ala. 635) 387 
 
 Williams V Real (20 111. 147) 5 
 
 Williams v. Vanderbilt (28 N. Y. 217; 84 Am. Dec. 333) .... 21, 41, 287 
 
 Williams v. Walton (9 Housten, Del., 322) 378 
 
 Willis V. Railroad Co. (61 Tex. 432; 48 Am. Rep. 301) 440 
 
 Willis V. Traction Co. (189 Pa. St. 430; 42 Atl. Rep. 1) ... 33, 89, 323 
 
 Willis & Brother v. McNeill (54 Tex. 465) 366 
 
 Wilson V. Booth (57 Mich. 249; 23 N. W. Rep. 799) 262 
 
 Wilson V. Morgan (58 N. J. L. 426; 34 Atl. Rep. 752) 518 
 
 Wilson V. Railroad Co. (13 Utah 352; 44 Pac. Rep. 1040) 25 
 
 Wilson V. Railroad Co. (132 Pa. St. 27) 65 
 
 Wilson V. Railway Co. (7 Colo. 101) 431 
 
 Wilson V. Town of Granby (47 Conn. 59; 36 Am. Rep. 51) 82 
 
 Wilson V. Trafalgar, etc., Gravel Rd. Co. (83 Ind. 326) 432 
 
 Wilson V. Vaughn (23 Fed. Rep. 229) 347 
 
 Wilt V. Bird (7 Blackf., Ind. 258) 501 
 
 Wilton V. Middlesex, etc., Rd. Co. (125 Mass. 130) 326 
 
 Wiltse T. Town of Tilden (77 Wis. 152; 46 N. W. Rep. 234) 415 
 
 Winbourne's Case ( 30 Fed. Rep. 167) 129 
 
 Winegar's Admr. v. Cent. Pass. Ry. Co. (85 Ky. 547; 4 S. W. Rep. 
 
 237) 408 
 
 Winkler v. Railroad Co. (29 Mo. App. 99) 155 
 
 Winkler v. Roeder (23 Neb. 706) 500 
 
 Winne v. Railroad Co. (14 N. Y. Misc. 394) • 51 
 
 Winnt V. Railroad Co. (74 Tex. 32; 5 L. R. A. 172) 385 
 
 Winslow v. Beall ( 6 Call., Va. 44) 13 
 
 Winsmore v. Greenbank (Willes 577) 302, 316 
 
 Winstead v. Hulme (32 Kan. 388) 500 
 
 Winter v. Railroad Co. (74 Iowa 448; 38 N. W. 154) 56, 81, 121 
 
 Winter v. Railway Co. (80 Iowa 443) 93 
 
 Winters v. Hannibal, etc.. Railroad Co. (39 Mo. 468) 97 
 
 Winters v. Cowen (12 O. F. D. 108) 342 
 
 Withsckofsky v. Wier (32 Fed. Rep. 301) 138 
 
 Wolf V. Railway Co. (53 O. S. 517) 371, 372 
 
 Wolf V Frinkle (103 Ind. 355; 3 N. E. Rep. 110) ... 156, 188, 185, 515 
 
 Womack v. W. U. T. Co. (Tex., 22 S. W. Rep., 417) 229 
 
 Wood V. Board of Commissioners (128 Ind. 289) 491 
 
 Wood V. Louisville & N. Rd. Co. (88 Fed. Rep. 44) 148 
 
 Wood V Railway Co. (72 N. Y. 195) -498 
 
 Wood V. Waterton (58 Hun, N. Y., 298) -J^ll 
 
 Woodbury v. Dist. of Col. (5 Mackey 127) 51, 1^9 
 
 Woodbury v. Owosso (64 Mich. 239; 31 N. W. Rep. 130) 6J 
 
 Wooden V. Railway Co. (126 N. Y. 10; 26 N. B. 1050; 13 LR- 
 
 . .gg-, 369, 404, 438 
 
 Woodman v. Nottingham' (49 N. H. 387; 6 Am. Rep. 526) 3 
 
 Woodruff V. Cook (25 Barb., N. Y., 505) 32, 519 
 
 Woodward v. Boscobel (84 Wis. 226) ^in 
 
 Woodward v. Railroad Co. (10 Ohio St. 121) **" 
 
 Woodward v Railroad Co. (23 Wis. 400) ^'* 
 
 Woodworth V. Ry. Co. (66 N. Y. S. 1072) ^-^^ 
 
Ixxxvi TABLE OP CASES. 
 
 Page. 
 
 Woody V. Osgood (50 Barb. 628) 293 
 
 Woolford V. Lyon Gravel Gold Mining Co. (63 Cal. 483) 427 
 
 Woolheather v. Risley (38 Iowa 486) 262 
 
 Wooster v. Railway Co. (16 N. Y. Supp. 764) .' . 139 
 
 Worden v. Railway Co. (76 Iowa 310; 41 N. W. Rep. 46) 114 
 
 Woyceichowski v. Spreckels Sugar R. Co. (177 Pa. St. 57) 496 
 
 Wright V. City of Port Howard (60 Wis. 119; 50 Am. R. 350) . . 457, 475 
 
 Wright V. Compton (53 Ind. 337) 160 
 
 Wright V. Freeman (5 H. & J., 475) 7 
 
 Wright V. Jennings (1 Bailey 277) .' 107 
 
 Wright V. Mulvaney (78 Wis. 89; 23 Am. St. 393) 57 
 
 Wright V. Telegraph Co. (20 Iowa 195) 34 
 
 Wright V. Wright (80 Mich. 572; 79 Mich. 527) 7 
 
 Wyatt V. Williams (43 N. H. 102) 367 
 
 Wyman v. Leavitt (71 Me. 227; 36 Am. Rep. 303) .. 164, 172, 245, 
 
 266, 268 
 
 Wynne v. Railroad Co. (156 N. Y. 702; 51 N. B. Rep. 1094) 88, 290 
 
 Wynn v. Railway Co. (133 N. Y. 575; 14 N. Y. Supp. 172) .. 286, 292 
 
 Yahn v. Ottumwa (60 Iowa 429) 320 
 
 Yarnall v. Railroad Co. (75 Mo. 575) 491, 506 
 
 Yates V. Joyce (11 Johns. 136) 3 
 
 Yeoman v Costra St. Nav. Co. (44 Cal. 71) 442 
 
 Yoakum v. Kroeger (Tex. Civ. App.; 27 S. W. Rep. 953) 164, 176 
 
 Young V. Detroit, G. H. & M. Rd. Co. (56 Mich. 430) 98, 119 
 
 Young V. Sheppard (Tex. Civ. App.; 40 S. W. Rep. 62) 209 
 
 Young V. Telegraph Co. (107 N. Car. 370; 22 Am. St. Rep. 883).. 
 
 218, 220, 229 
 Youngstown Bridge Co. v. Barnes (98 Tenn. 401; 2 Am. Neg. Rep. 
 
 237) 93,96,154 
 
 Yount V. Carney (91 Iowa 559; 60 N. W. Rep. 114) 213 
 
 Yundt v. Hartrunft (41 111. 10) 266 
 
 Zeliff V. Jennings (61 Tex. 458) 205 
 
CHAPTER I. 
 
 DAMAGES IN GENERAL. 
 
 Sec. 
 
 1. Introductory. 
 
 2. Classes of Injured Persons. 
 S. Causes of Injuries. 
 
 4. Damages, Meaning of. 
 
 5. Damages Recoverable. 
 
 6. No Mathematical Rule. 
 
 7. Each Case Determined by Itself. 
 
 Sec. 
 9. 
 
 10. 
 11. 
 
 12. 
 
 Remedy for Injury. 
 
 Necessary Difficulties, Province 
 of Jury. 
 
 Sources of Damages. 
 
 What is the Measure of Dam- 
 ages. 
 
 Damages Should be Reasonable. 
 
 § 1. Introductory. Questions relating to torts and 
 the measure of damages for injuries to the person have 
 greatly increased and multiplied within the last fifty 
 years. With the discovery of steam and its use as a mo- 
 tive power, and its subsequent and practical application 
 to the various mechanical appliances and inventions of 
 the present generation, and with the discovery, and like 
 use and application of electricity, there has come a new 
 phase of the law, involving intricate and important ques- 
 tions which were known to the common law only in a lim- 
 ited way. These questions arise chiefly from accidents 
 and injuries, incident to the use of steam and electricity. 
 Notwithstanding the knowledge of danger attending the 
 use of these powerful elements, and the care and pru- 
 dence expected and required at all times, accidents and 
 injuries have been and, in view of the extended applica- 
 tion of the elements referred to, will continue to be, 
 of frequent occurrence ; and whenever an accident 
 occurs and injuries are caused by the negligence of 
 some person or party responsible therefor, and upon 
 whom a duty is imposed in relation to the injured per- 
 son, a righb of action for damages accrues. The law of 
 neoligence has thus become one of the most important 
 parts of our jurisprudence and the measure of damages 
 in personal injury cases one of the chief divisions of 
 that important subject. 
 1 
 
§§ 2-3 DAMAGES IN GENERAL. 2 
 
 § 2. Classes of Injured Persons. While there is no 
 person exempt from an accident and injury, yet the per- 
 sons who are liable to receive an injury for which an ac- 
 tion for damages may be brought naturally include two 
 general classes, to-wit : 
 
 First. The employes of any corporation, company, part- 
 nership, or individual, where the relation of master and 
 servant exists/ 
 
 Second. All persons who patronize and travel upon 
 steam railroads, steamboats, electric street railways, or 
 othor means of transportation for hire.^ 
 
 § 3^ Causes of Injuries. Important Questions. Per- 
 sonal injuries for which actions lie occur through the 
 negligence or failure of some person or persons to obey, 
 do, or perform some duty imposed upon such person or 
 persons by law. It may be a statute, a municipal. ordi- 
 nance, or a rule laid down and recognized by the common 
 law. There must be an obligation resting upon or a duty 
 owing by one party to the other. A duty is imposed, 
 upon a common carrier to transpoi't its passengers and 
 their property with safety to the place of destination. A 
 master owes a duty to his servant to furnish him a place, 
 and appliances with which, to work in safety. With- 
 out this obligation existing between the parties, no 
 liability can attach for damages in case of an injury. 
 Arnold v. Penn. Rd. Co., 115 Pa. St., 135. 2 Am. St. 
 Rep., 542. 
 
 Whenever a person receives an injury for which it may 
 at first appear that he has a right of action for damages, 
 two important questions arise which should be carefully 
 
 1 Where this relationship exists the nicipalities, corporations, or other 
 master is required to instruct his em- persons where these relations do not 
 ployes as to the danger of the appli- exist. In such cases the injured 
 aijces which they may be called upon party has the right to recover datn- 
 to use, to furnish them with safe ages. Accidents arising from defect- 
 machinery, and to exercise reason- ive streets, highways and bridges, 
 able care and prudence over them for which have become dangerous 
 the safety ol their person. through negligence or failure to keep 
 
 2 T., (i,i„ „!„„ „f .tu them in repair, furnish grounds for 
 ciroer /r rlr , i /T' common an action against the municipality re- 
 hi^he,. I.IX^, r""'^ ^^l sponsible therefor. Accidents occur- 
 deHver hif/«.nl % ?,,''"r ^"''r ""S ^'tl^^ crossings of railroads and 
 d!i.^^.Hl passengers at the place of public highways, through the negli- 
 
 it ar;i ho^ufhtir fnjuT^ '^- S-- °' -"-«<i -f -- *° \ 
 
 " "j'*™ serve and obey some rule, render such 
 
 Accidents however may and do oc- railroad companies liable to the in- 
 cur through the negligence of mu- jured person for damages. 
 
3 DAMAGES IN GENERAL. 5 4 
 
 considered, examined, and determined, with some degree 
 of certainty before the action is commenced, to-wit: 
 First. Whether the injury is the result of negligence, 
 
 ■Second. What is the measure of damages. 
 
 § 4. Damages, Meaning- of. The injured person, 
 whenever he has a meritorious cause of action, is entitled 
 to recover judgment for all the damages sustained. In the 
 majority of injuries, the injured person does not recover 
 from the effects of the injury. The science of medicine 
 has not been able to devise means or a method to restore 
 a broken arm or crushed leg to its original strength or 
 beauty, or to supply a lost one with a substitute which 
 will do the work or afford the ease and comfort of a 
 natural one. The law gives recompense to the injured 
 person, by requiring the payment of money for the dam- 
 ages sustained. 
 
 Damages as used in this relation mean compensation or 
 recompense to the injured person, by the payment of 
 such a sum of monev' as will be some equivalent for the 
 loss sustained, so far as it can be represented by it.^ 
 
 1 Toledo V. Clopeck, 9 Circ Dec, Tex. & Pac. Rd. Co. v. Davidson, Tex. 
 
 432, 17 C. C. R., 585. Where the court Civ. App , 21 S. W., 68; Richmond & 
 
 instructed the jur3- that " money can- Danville li. Co. v. Allison, 86 Ga., 146, 
 
 not compensate (or the loss of health, Jl L. R. A,, 43; Western & Atl. R Co., 
 
 but it is the only compensation v. Young, 81 Ga,, 397, 12 Am. St. Rep., 
 
 the law can give to a person injured 320 ; Huizega v. Cutler & Savidge L. 
 
 by the fault of another." In Cleve- Co., 51 Mich., 272; Piitsburgh, A. & 
 
 land, C. C. & >^t. Louis R. R. Co. v. M. Rd. Co. v. Donahue, 70 Pa. St , 119 ; 
 
 Newell, 104 Ind., 264. 3 N. E., 836, the Penu., etc. Rd. Co. v. Books, 57 Pa. 
 
 court approved the following charge : St., 339; Penn., etc. Rd. Co. v. Allen, 
 
 "Upon a consideration of all the facts 63 Pa. St., 276 ; Brignoli v. Chicago & 
 
 proved, ascertain the extent of the Gr. East. Ry. Co., 4 Daly (N. Y), 182; 
 
 injury, and award such damages as in Morse v. Auburn & Syracuse li. Co., 
 
 your judgment will compensate, so 10 Barb., 621 ; Yates v. Joyce, 11 
 
 far as money can, for such injury." In Johns., 136; Rockwood v. Allen, 7 
 
 Parker v. Jenkins, 3 Bush (Ky ), 587, Mass., 254; Holyoke v. Railway Co., 
 
 the court said : " Compensation in its 48 N. H., 541; Woodman v. Nottmg- 
 
 legal signification consists in reniu- ham, 49 N. H , 3S7,6 Am. Rep, 526; 
 
 Deration for loss of timr, necessary Fay v. Parker, 53 N. H., 342, 16 Am. 
 
 expenditures and for permanent dis- Rep., 270; Chielinsky v. Hoopes & 
 
 ability if such be the result." See Townsend Co., 40 Atl , 1127 ; Fuller v. 
 
 also, Baillee v. Bryson, 1, Murr. ; Citizens Nat. Bk., 15 Fed. Rep., 875 ; 
 
 Morgan v. Railroad Co., 95 California, Sunny v Holt, 15 Fed. Rep , 880 ; 5 O. 
 
 501, 17 L. R. A., 71 ; Chicago v. Lang- F. D., 231. Bussy v. Donaldson, 4 
 
 lass, 52 in, 256, 4 Am. Rep, 603; T. C. Dall. (U. S.), 207; Milwaukee & St. 
 
 R. Co. v. Burke, 55 Houston, T. C. R. Paul R. Co. v. Arms, 91 U S., 489 ; 
 
 Co., 55 Tex., 323, 40 Am. Rep., 808; Hill Vicksburg, e'c, R Co. v. Putnam, 118 
 
 V. Railroad Co., 11 La. Ann., 292; Chop- U. S., 546. 
 pin V. Railroad Co., 17 La. Ann., 19; 
 
? 5 DAMAGES IN GENERAL. 4 
 
 The word "damages" is somewhat synonymous with the 
 Anglo-Saxon word, "Wer-gild," or the "Poeni" of the 
 Iliad. An action for damages is a substitute for the per- 
 sonal retaliation practiced in the primitive history of the 
 world. Before the trial of an action, the right to a claim for 
 damages which is admitted or conceded is known as 
 unliquidated damages. After the trial and a judgment, 
 the amount found and awarded by the jury becomes liqui- 
 dated damages, for the reason that the damages are 
 fixed or determined \>j a tribunal of competent jurisdic- 
 tion, and must be accepted by one party, and paid by 
 the other. And when the judgment becomes final by 
 acceptance, or by affirmance in an appellate court, the 
 damages become res adjudicata so far as that particular 
 case is concerned. The amount of money so adjudged 
 and awarded to be paid, whether found by a jury, or 
 agreed upon by the parties, represents the measure of 
 damages for the injury or wrong done.' 
 
 §5. Damages Recoverable. Every person (adult or 
 an infant) who receives an injury to his person, or to his 
 name or credit, caused by an ant of negligence of some 
 other person or party responsible therefor, is entitled to 
 demand, receive, and recover all the damages which he 
 has sustained or may sustain by reason thereof.^ 
 
 ■ Ivapleine V. Morgan's Tv. & T. R. & road Co., 36 N. H. , 9, 72 Am Dec, 
 
 S. S. Co , 40 La. Ann., 661, \ h. R. A., 287 ; St. Peter's Church v. Beach, 26 
 
 378; Dreissv. Frederick, 73 Tex., 460; Conn, 355 ; Wellington v. Downer 
 
 Bray v. Latham, 81 Ga.,640; Shaitle Kerosene Co., 104 Mass., 64; Metallic 
 
 V. Minneapolis, 17 Minn., 308. Compression Casting Co. v. Railroad 
 
 2 Vicksburg, etc., R. R. Co. v. Put- Co., 109 Mass., 277; Noble v. Ames 
 
 nam, 118 U. S., 545; Milwaukee, etc.. Manufacturing Co., 112 Mass., 492; 
 
 R. R. Co. V. Arms, 91 U. S., 489; Derry v. Flitner, 118 Mass., 131; 
 
 United States v. Smith, 4 Otto U.S., Smethurst v. Independent Cong. 
 
 214; Totten v. Railroad Co., 11 Fed. Church, 148 Mass., 261 2 L. R. 
 
 ?o*&'j^?,*' ^^"""s "■ Railroad Co., A., 695; Murphy v. Hughes, (Del.) 
 
 Id Fed. Rep., 591 ; Brown v. Railroad 40 Atl. Rep., 187 ; Penn etc R. R. 
 
 Co. 7 Fed. Rep., 51 ; Crew v. Rail- Co. v. Kelley, 31 Pa. St., 372 • L. S. & 
 
 road Co., 20 Fed. Rep., 87; Van de M. S. Ry. Co. v. Rosenweig, 113 Pa. 
 
 Venter y. Railway Co , 26 Fed. Rep., St., £19, 6 Atl., 545 ; Stauffer v. Miller 
 
 32 ; Davidson v. Railway. Co. , 44 Fed. Soap Co. , 151 Pa. St , 330 ; Owens v. 
 
 S%' li Y^\^ ^- Rail''°a'l Co., 17 People's Passenger Ry. Co., 155 Pa. 
 
 N. Y., 362 72 Am. Dec, 474; Curtis St., 334; Richmond & Danville Ry. 
 
 t; ^o^^SI*^''' ^tc, Rd. Co., 18 N. Co. V. Norment, 84 Va., 167, lOAm. 
 
 Y. 534, 75 Am. Dec 258 ; Hamilton St. Rep,, 8:^7 ; Wanamaker v. Bowers, 
 
 V. Railroad Co., 53 N. Y 25 ; Town- 36 Md., 42 ; Bussy v. Railway Co., (S. 
 
 send V. Railroad Co., 56 N. Y., 295, C), 30 S. E., 477 ; Floyd v. Hamilton, 
 
 1^ ^^,^P'.*^^' ^^""^ "■ ^^i^°- 33 Ala., 285; Bay Shore Railroad Co. 
 
 po,litan Elevator Co 90 N. Y., 77., v Harris, 67' AlZ, 6 ; S.iow v. Grace, 
 
 43 Am. Rep., 141; Hopkins v. Rail- 25 Ark., 570; Goodbar v. Lindsay, 51 
 
DAMAGES IN GENERAL. 
 
 §6 
 
 § 6. No Matlieniatical Rule. How to measure the 
 damages which a person has sustained, or how to deter- 
 mine the amount of compensation to be awarded, as a 
 recompense or satisfaction for the injury or wrong done, 
 so far as it is possible to make recompense by the pay- 
 ment of money, have been and will continue to be difficult 
 and perplexing- questions.^ 
 
 From the very nature of things and in view of the per- 
 sonalty of every individual, no two causes of actions for 
 damages for personal injuries contain the same facts and 
 circumstances, or present the same reasons for consid- 
 eration in determining- the amount of damages. No math- 
 ematical rule can be laid down by which these damages 
 can be ascertained in each case/ 
 
 Ark., 380, 14 Am. St. Rep., 54; Ken- 
 tucky, etc., Rd. Co. V. Dills, 4 Bush 
 (Ky. ), 222 ; Passenger Ry. Co., v. 
 Young, 21 Ohio St., 518; Walker v. 
 Springfield, 3 Ohio Dec, (Re.) 567 ; 
 Ohio & Mississippi Railroad Co. v. 
 Dickerson, 59 Ind., 317 ; Cleveland, 
 C. C. & 1. Rd. Co. V. Newell, 104 lud., 
 264, 54 Am. Rep., 312, 3 N. E. Rep., 
 836; Indianapolis, etc., R. R. Co. v 
 Birney, 11 111., 391 ; Williams v. Real, 
 20 111., 147 ; Peoria Bridge Association 
 V. Loomis, 20 111., 236,71 Am. Dec, 
 263 ; Toledo, etc., R. R. Co. v. Arnold, 
 43 111., 418 ; Kerr v. Forgue, 54 111., 
 482, 5 Am. Rep , 146 ; Indianapolis & 
 St. Louis Rd. Co. v. Stables, 62 111., 
 313; Kolb v. O'Brien, 86 111., 210; 
 Brewster v. Van Liew, 119 111., 554, 
 59 Am. Rep., 823 ; Allison v. Chandler, 
 11 Mich., 542; Northrup v. McGill, 
 27 Mich., 234 ; Scripps v. Reilly, 35 
 Mich., 371, 38 Mich., 10; McLean 
 V. Scripps, 52 Mich., 214; Huizega 
 V. Cutler & Savidge Lumber Co., 
 51 Mich., 272; Geveke v. Railroad 
 Co., 57 Mich., 581; Fergason v. Gies, 
 82 Mich., 358, 21 Am. St. Rep., 
 576; Sherwood v. Railroad Co., 82 
 Mich., 374, 88 Mich., 108; Goetz v. 
 Arabs, 27 Mo., 28 ; Peltz v. Eichele, 
 62 Mo., 171 ; Porter v. Railroad Co., 
 71 Mo., 66, 36 Am. Rep , 454 ; Huse. 
 etc., Ice Co. v. Heinze, 102 Mo., 245 ; 
 Cook V. Railroad Co., 19 Mo. App., 
 329 ; Chilton v. City of St. Joseph, 44 
 S. W. Rep., 766 ; Fry v. Railroad Co., 
 45 Iowa, 416 ; Townsend v. Pavla, 41 
 Kan., 591 ; Croaker v. Railroad Co., 
 36 Wis., 657, 17 Am. Rep., 504 ; Wight- 
 man V. Railroad Co. , 73 Wis., 169 ; Mc- 
 
 Murty V. Blake, 45 Neb., 213, Buckley 
 V. Buckley, 12 Nev., 423; Salon v. 
 Railroad Co., 13 Nev., 10 ; Moody v. 
 McDonald, 4 Cal., 297 ; Shea v. Par- 
 treso & Bay View Rd. Co.. 44 Cal., 
 414; Malcolm v. Hawley, 46 Cal., 409 ; 
 Morgan v. Railway Co., 96 Cal., 510; 
 Stockton, etc., Gravel R. Co. v. Rail- 
 road Co , 53 Cal., 11; Phillips v. Rail- 
 road Co., 4 Queen's B., 406 ; Means v. 
 Hyde, 19 La. Ann., 479 ; Neill v. Wat- 
 son, 39 Tex., 375; Hurlburtv. Green, 
 41 Vt., 490. 
 
 1 Leeds v. Amherst, 20 Beav., 239; 
 Ashworth v. Railway Co., 18 Queen's 
 B., 104. 
 
 2 Detzner v. Brewing Co., Mich., 44 
 L. R. A., 5C0, where the court says: 
 " Such damages are not a matter of 
 mathematical computation, but they 
 are determined by the consensus of 
 opinion of the jury, acting under 
 the direction of the court." City of 
 Panama, 101 U. S., 453, where this 
 language is used: " There cannot 
 be any fixed measure of compen,sa- 
 tion for the pain and anguish of 
 body and mind, nor for the perma- 
 nent injury to the health and con- 
 stitution." Richmond & Danville 
 R. Co. V. Allison, 86 Ga., 145, 11 L. R. 
 A., 43, where the principle is laid 
 down that no fixed rule exists for 
 estimating the damages to be recov- 
 ered by one who is permanently dis- 
 abled through the negligence of an- 
 other. Lee V. Railway Co., 101 Cal., 
 118 ; Howland v. Street Ry. Co., 110 
 Cal., 513; Pittsburg, etc, Ry. Co. v. 
 Story, 63 111. App., 239; Chic, etc 
 R Co. v. Adamich, 33 111. App., 412 
 
gg 7-8 DAMAGES IN GENERAL. 6 
 
 The certainty of a mathematical rule or calculation 
 must be eliminated from the consideration to be given to 
 the evidence, in making up the compensation or damages 
 to be awarded for the injury or wrong done to the injured 
 person. There is no Procrustean rule, or fixed rule, in 
 cases of this kind/ 
 
 § 7. Each Case Determined toy Itself. While there 
 may be a close similarity, each injury or wrong has 
 its own independent facts and peculiar circumstances. 
 The extent and effect of an injury are governed to a large 
 •degree by the physical conditions and mental tempei-a- 
 ment of each person who may have sustained a personal 
 injury. These conditions and characteristics become 
 important factors in fixing and measuring the amount of 
 ■damages. They separate each injury from every other 
 one. They make it necessary to require an independent 
 consideration and judgment upon every individual action. 
 Each cause differs as every human face differs. Each 
 injury or wrong has its own distinct facts and elements to 
 be weighed by themselves.^ 
 
 § '8. Remedy for Injury. The right to recover dam- 
 ages for an injury means that a wrong has been done to 
 the person or to his propertj'^,^ The law undertakes to 
 recognize, adjudge, and enforce the payment of a reason- 
 able compensation for every injury or wrong negligently 
 done, which any person, without fault or contributory 
 negligence on his part, may have sustained. This rule of 
 law is fundamental and needs no argument or citation of 
 authorities to support it. It is the law of cause and 
 effect, — ^the law of natural justice. The law recognizes 
 the sacredness of the person, and the inviolability of his 
 property as an absolute right.'' 
 
 Whenever such rights suffer a wrong or sustain an 
 injury, the law should provide a remedy and furnish an 
 adequate relief.* 
 
 1 Richmond & Danville R.Co.v.AUi- * Meller v. Taylor, 4 Burr., 2345; 
 
 «on,86Ga.,145,IlL.R.A.,43;Vicksburg County Commissioners v. Duckett, 20 
 
 &M. R: Co. -v. Putnam, 118 U. S., 545. Md., 46S; Hammond v. Hussey, 51 
 
 2Etchberry V. Levielle, 2 Hilt (N. N. H., 40, 12 Am. Rep., 41 ; Paul v. 
 
 Y.), 40; City ofPanama, 101 U. S.,453. Slason,22 Vt, 231 ; Hood v. Palm, 8 
 
 ' Constitution of the United States, Pa. St., 239; Embrey v. Owen, 6 
 
 Art. 5, and amendments thereto. Van- Excheq., 353; Seat v Moreland, 7 
 
 liorn V. Dorance, 2 Dall. ( U. S.), 304; Humph. (Tenn.), 575; Brent v. Kimball, 
 
 Searl v. School District, 133 TJ. S., 553. 60 lU., 211 ; Whipple v. Cumberland 
 
 The constitutions of the several Mfg. Co., 2 Story (U. S.), 661. 
 states of the Union. 
 
7 DAMAGES IN GENERAI^. g g 
 
 There is no class of wrongs which illustrate this rule 
 more forcibly than when a person has sustained a per- 
 sonal injury or wrong, through the negligence or careless- 
 ness of another, provided the negligence of such injured 
 person did not contribute thereto so as to bar an action 
 and recovery. If there is no known remedy for a wrong 
 or redress for a new cause of action or injury, it is the 
 duty of the courts to prescribe a remedy or make one for 
 the new exigency.^ 
 
 It would be paradoxical if the courts did not possess 
 and could not exercise power, whenever an emergency 
 arises, to provide a new remedy therefor. Their right to 
 do so is inherent in their general powers and functions. 
 The history and growth of the common law and the crea- 
 tion of courts of equity, are forcible examples to illustrate^ 
 this proposition.^ 
 
 InHolleman v. Harward, 119 N. C, 150, 34 L. R. A., 
 p. 803, an action was brought to recover damages of the 
 defendants, for injuries alleged to have been sustained by 
 the plaintiff in consequence of the defendants having 
 sold laudanum to his wife, the defendants being drug- 
 gists and knowing that plaintiff's wife was using the 
 same in large quantities as a beverage, to the injury of 
 her health. 
 
 It appears that the wife of plaintiff, many years be- 
 fore this action was brought, while suffering from some 
 temporary illness, was forced to take preparations of 
 opium for relief and from this was formed the habit of 
 taking laudanum. The plaintiff, as soon as he discovered 
 the habit, set to work to cure or prevent it, and so 
 informed the defendants who lived in the same town with 
 him, and forbade them to sell his wife opium in any form; 
 that, notwithstanding these protests and orders to the 
 contrary of the plaintiff, the defendants have almost 
 daily, through a series of years, sold to the plaintiff's wife 
 large quantities of laudanum, which they knew that at 
 
 J Allison V. McCune, 15 Ohio, 726, Wright v. Freeman, 5 H. & J., 475; 
 
 where this court said " If there is no Griffin v. Farewell, 20 Vt., 151 ; Ham- 
 
 known mode of redress, it is the duty mond v. Hussey, 51 N. H., 40, 12 Am. 
 
 of the court in such a case to open Rep., 41; Wright v. Wright, 80 Mich., 
 
 some new channel through which a 572, 79 Mich., 527. 
 
 remedy may be obtained. " Sheldou ^ Toledo, Ann Arbor & North Mich. 
 
 V. Fairfax, 21 Vt., 4 ; County Commis- Ry. Co. v. Railway Co., 54 Fed., 
 
 sioners V. Duckett, 20 Md., 468; Mc- 730. 
 Farlane v. Moore, 1 Tenn., 174; 
 
§ 8 DAMAGES IN GENERAL. 8 
 
 the times when they . were selling the laudanum to her, 
 she was becoming and had become what is known as 
 an "opium eater;" that she was, through the use of the 
 drug, wrecking her mind and body ; and that the plaintiff 
 was doing his utmost to prevent such use, and to counter- 
 act the eifects of the ruinous drug. 
 
 The plaintiff alleges in his complaint "that his 
 wife, by reason of the use of the drug as a beverag^, 
 had become a mental and physical wreck, and almost 
 deprived of moral sensibility, unfitted and disquali- 
 fied to attend to her household duties or to the care 
 and nurture of her children ; and that by the means 
 aforesaid so furnished by the defendants knowingly, wil- 
 fully, and unlawfully, the plaintiff has been deprived of 
 the society of his wife, of her services in her home, and 
 his children have suffered from neglect and want of 
 motherly care;" that the plaintiff's family consists of his 
 wife and six children, some of them very young, and ail 
 under age ; that the plaintiff himself is dependent on his 
 daily toil for a living, and the care of his household and 
 children is dependent upon the services and attention of 
 his wife ; and that by the sale and use of the laudanum 
 she has become physicallj'- and mentally incapable of 
 attending to her duties. The complaint further alleges 
 that, but for the conduct of the defendants in selling and 
 furnishing the plaintiff's wife laudanum, the plaintiff 
 would have been able to have counteracted the habit, 
 which was only forming at the time the defendants began 
 to furnish her with the said deadly drug ; and his said 
 wife instead of being a burden from mental and 
 physical and moral imbecility, would have been a comfort 
 and a helpmeet. And a demurrer was sustained by the 
 court on the ground that the complaint did not state facts 
 sufficient to constitute a cause of action. 
 
 The court says : ' ' The question, then, is, can the plain- 
 tiff upon the facts set out in the complaint, maintain an 
 action ? 
 
 "The action is a novel one. With the exception of the 
 case of Hoard v. Peck, 56 Barb., 202, which in its most 
 important aspects resembles the one before us, we have 
 been able to find no precedent in the English common-law 
 courts or in the courts of any of our states. It does not 
 follow, however, that because the case is new the action 
 
9 DAMAGES IN GENERAL. § 8 
 
 cannot be maintained. If a principle upon which to base 
 an action exists, it can be no good objection that the 
 case is a new one. 
 
 "It is contended for the defendants, though, that there 
 is no principle of common law upon which this action can 
 be sustained, and that our own statutory law gives no 
 such remedy as the plaintiff seeks in this action for the 
 wrong done to him by the defendants, and that the novelty 
 of the action, together with the silence of the elementary 
 books on the subject-matter of the complaint, while not 
 conclusive, furnishes strong countenance to their conten- 
 tion. It is claimed for the defendants that while, in the 
 abstract, such facts as are stated in the complaint would 
 make the parties charged guiltj^ of a great moral wrong', 
 there would be no legal liability incurred therefor. It 
 was argued for the defendants that there was no legal 
 obligation resting upon themselves not to sell the drug, 
 as is alleged, to the plaintiff's wife or upon. the wife not to 
 use it; that man}" of the ancient restrictions upon the rights 
 of married women had been repealed by recent legislation, 
 or modified by a more liberal judicial construction ; that 
 a married woman was ordinarily free to go where she 
 would, and that the husband could not arbitrarily deprive 
 her of her liberty, nor use violence against her under any 
 circumstances except in self-defense, and that, if he 
 could not restrain her locomotion and her will, he could 
 not prevent her from buying the drug and using it ; that 
 the wife's duty to honor and obey her husband, to give to 
 their children motherly care, to render all proper service 
 in the household, and to give him her companionship and 
 love, was a moral duty, but that they could not be en- 
 forced by any power of the law, if the wife refused to 
 discharge them. But, notwithstanding the claim of the 
 defendants, we think this action rests upon a principle, not 
 new, but one sound and consistent. The principle is 
 this: 'Whoever does an injury to another is liable in 
 damages to the extent of that injury. It matters not, 
 whether the injury is to the property, or the person, or 
 the rights, or the reputation, of another.' Story, J., m 
 Dexter v. Spear, 4 Mason, 115. And also in the third 
 book of Blackstone's Commentaries (Cha]). 8, p. 123) it is 
 written: 'Wherever the common law gives a right, or 
 prohibits an injury, it also gives a remedy, by action.' A 
 
J 8 DAMAGES IN GENERAL. 10 
 
 married woman still owes to her husband, notwithstand- 
 ing her greatly improved legal status, the duty of com- 
 panionship, and of rendering all such services in his home 
 as her relations of wife and mother require of her. The 
 husband, as a matter of law, is entitled to her time, her 
 wages, her earnings, and the product of her labor, skill 
 and industry. He may contract to furnish her services 
 to others, and may sue for them, as for their loss, in his 
 own name. And it seems to be a most reasonable propo- 
 sition of law that whoever wilfully joins with a married 
 woman, in doing an act which deprives her husbandof her 
 services and of her companionship, is liable to the hus- 
 band in damages for his conduct. And the defendants 
 owed the plaintiff the legal duty not to sell to his wife 
 opium in the form of large quantities of laudanum as a 
 beverage, knowing that she was, by using them, destroy- 
 ing her mind and body, and thereljy causing loss to the 
 husband. The defendants and the wife joined in doing 
 acts injurious to the rights of the husband. From the 
 facts stated in the complaint, the defendants were just as 
 responsible as if they had forced her to take the drug, for 
 they had their part in forming the habit in her, and con- 
 tinued the sale of it to her after she had no power to con- 
 trol herself and resist the thirst ; and that, too, after the 
 repeated warnings and protests of the husband. There is 
 no difference between the principle involved in this action 
 and the principle upon which a husband can recover from 
 a third person damages for assault and battery upon his 
 wife. That assaults and batteries are made criminal 
 offenses makes no difference, the foundation of the hus- 
 band's suit being, not for the public offense, but for dam- 
 ages, — compensation for the injury which he has sustained 
 on account of the loss of his wife's services. The sale of 
 the laudanum by the defendants to the plaintiff's wife, 
 under the circumstances set out in the complaint, was wil- 
 ful and unlawful, and the husband's injury is just as great 
 as if his wife had been disabled from a battery committed 
 on her, although the unlawful act is not indictable." 
 
 In Kujek v. Goldman, 150 N. Y., 176, 34 L. R. A., 156, 
 an action was brought by the husband against the defend- 
 ant to recover damages, for inducing him to marrj'^ a girl 
 by false representations that she was virtuous, when in 
 fact she had been seduced by the defendant and had be- 
 
' ' DAMAGES IN GENERAL. 
 
 §9 
 
 <3ome pregnant. The defense was that there was no pre- 
 cedent for the action. The court say : " The question is, 
 therefore, not whether there is any precedent for the 
 action but whether the defendant inflicted such a wrong 
 upon the plaintiff as resulted in lawful damages. The 
 defendant by deceit induced the plaintiff to enter into a 
 marriage contract whereby he assumed certain obliga- 
 tions and became entitled to certain rights. Among the 
 obligations assumed was the duty of supporting his wife 
 in sickness and in healtb, and he" discharged this obliga- 
 tion by expending money to fit up rooms for housekeep- 
 ing, in keeping house with his wife and caring for her dur- 
 ing her confinement when she bore a child not to him but 
 to the defendant. Among the rights acquired was the 
 right to his wife's services, companionship, and society." 
 The court held that by the fraudulent conduct of the 
 defendant, an actual wrong had been done to the plaintiff 
 in loss of money and services, for which an action would 
 lie, and it was the duty of the court to establish a prece- 
 dent if there was none. 
 
 § 9. Jfecessary Difficulties ; Province of Jury. It 
 
 has been properly said that the difficult question is how to 
 ascertain and determine what is a reasonable compensa- 
 tion. In what scale will you weigh the loss of an arm or 
 leg ? By what rule will you measure the value of a lost 
 sense or an impaired reason? Where will you find the for- 
 mula which will furnish the solution to the problem, what 
 is an adequate compensation for the suffering and loss of 
 a permanently disabled body or mind? Who is able to 
 overtake and restore the injury done to a good name or 
 reputation? How will you figure out, in dollars and cents, 
 theefPect of a sickness or the development of a chronic dis- 
 ease? When these things can be done, when these ques- 
 tions can be satisfactorily answered with certainty, then 
 the jury will have an exact mathematical rule to find the 
 compensation for a personal injury or wrong.' 
 
 lAshworth v. Railway Co., 18 the injuries. Deep Mining, etc., Co. 
 
 Queen's Bench, 104; Walker v. Rail- v. Fitzgerald, 21 Colo ,533 ; Goodhart 
 
 way Co., fiSBarb. 260. In some actions v. Railroad Co., 177 Pa. St., 1. 
 
 for damages for personal injuries as There can be no proof in money, of 
 
 •where the plaintiflFhas lost an eye, the extent of the injury suffered from 
 
 the jury are not permitted to attempt physical or mental pain. Montgomery 
 
 to ascertain and render a money etc., R. Co. v. Mallette, 92 Ala., 209. 
 equivalent for the consequences of 
 
i 10 
 
 DAMAGES IN GENERAI,. 
 
 12 
 
 Until then the amount of damages must be left to and 
 rest with the good sense, deliberate and unimpassioned 
 consideration of an impartial jury or tribunal, clothed 
 with that duty.' 
 
 The results of litigation upon this question of the meas- 
 ure of damages for personal injuries have been to rec- 
 ognize and adopt certain distinct elements of damages,^ 
 some of which are connected with and are incident to 
 every action for damages for personal injuries, but of 
 which proof is required to be given to authorize and sup- 
 port a judgment." 
 
 § 10. Sources of Damages. Damages for personal in- 
 juries are the result of certain causes. In actions for dam- 
 ages they will be found to occur throug-h some of the fol- 
 
 1 Milwaukee & St. Paul Rd. Co. v. 
 Kellogg, 94 U. S., 469. 
 
 In Ward v. White, 86 Va., 212, 19 
 Am. St. Rep., 883, it is very appropri- 
 ately said by the court : "From the 
 prolific lountain of litigation numer- 
 ous cases must daily spring up, call- 
 ing for adjudication for alleged inju- 
 ries, accompanied with facts and cir- 
 cumstances affording no definite 
 standard by which these alleged 
 wrongs can be measured, and which, 
 from the necessity of the case, must 
 be adjudged of and appreciated by 
 the views that may be taken of them 
 by impartial men. To the jury there- 
 fore, as a favorite and almost sacred 
 tribunal, is committed by unanimous 
 consent, the exclusive task of exam- 
 ining those (acts and circumstances, 
 and valuing the injury, and awarding 
 compensation in shape of damages. 
 The law which confers on them this 
 power and exacts of them the per- 
 formance of the solemn trust, favors 
 the presumption that they are actu- 
 ated by pure motives. It therefore 
 makes every allowance for different 
 dispositions, capacities, views, and 
 even frailties, in the examination of 
 the heterogeneous matters of fact, 
 when no criterion can be supplied." 
 
 In the City of Panama, 101 U. S., 
 453, the court said that the amount 
 must depend very much upon the 
 facts and circumstances proved at 
 the trial. When a suit is brought by 
 a party for personal injuries ; " There 
 
 cannot be any fixed measure of com- 
 pensation for the pain and anguish 
 of body and mind, nor for the per- 
 manent injury to the health and con- 
 stitution, but the result must be left 
 to turn mainly upon the good sense 
 and deliberate judgment of the trib- 
 unal assigned by law to ascertain 
 what is a just compensation for the 
 injuries afflicted." Leeland v. Stone, 
 10 Mass., 459; Wells v. Bartlett, 10 
 Mass., 470 ; Southern, etc. R. Co. v. 
 Kendrick, 40 Miss., 374, 90 Am. Dec, 
 332; Bigelow v. Street Railway Co., 
 48 Mo. App.,367 ; Furnish v. Railway 
 Co. , 102 Mo, , 669, 22 Am. St. Rep. , 800 ; 
 Montgomej:y, etc., R. Co. v. Mallette 
 92 Ala., 209; Lee v. Railroad Co , 101 
 Cal., 118; Howlaud v. Street R. Co., 
 110 Cal., 513; Deep Mining Co. v. 
 Fitzgerald, 21 Colo, 533; Southern 
 Bell Telephone Co. v. Jordan, 87 Ga., 
 69 ; Richmond & D. R. Co. v. Allison, 
 86 Ga., 148, 11 L. R. A., 43; Living- 
 ston V. Bauchens, 34 111. ApD., 544; 
 Chic. etc. R. Co. v. Adamich,' 33 111. 
 Aop., 412; Pittsburg, etc. , R. Co. v. 
 Story, 63 111. App., 239 ; Little v. Tin- 
 gle, 26 Ind., 168 ; Morris v. Railroad 
 Co., 45 Iowa, 29; Frank v. Railroad 
 Co., 20 La. Ann., 25 ; Choppin v. Rail- 
 road Co., 17 La. Ann., 19 ; Ross v. Leg- 
 gett, 61 Mich., 445, 1 Am. St. Rep., 
 615; Louisville & N. R. R. Co. v. 
 Stacker, 86 Tenn., 343, 6 Am. St. Rep., 
 840. 
 
 » Post, Ch. 2. 
 
 ' Posi, Ch. 23 on Evidence. 
 
13 
 
 DAMAGES IN GENERAL. 
 
 § 10 
 
 lowing causes, one or more of which will be found in 
 every case. These causes may be called the sources of 
 damages. 
 
 First. The motive of the person or party responsible 
 for the injury.^ 
 
 Second. Where the injury is the result of the direct 
 act of the negligence of the party causing the same.^ 
 
 Third. Where the acts of a third person set in motion 
 the force which causes the injury, or where remote and 
 concurrent conditions contribute to increase the injury 
 doue ; because such acts or conditions are the proxi- 
 mate cause or result of the injury.^ 
 
 Fourth. Where the injury is done by an employe or 
 agent and for which themaster or principal is held respon- 
 sible.* 
 
 Authorities might be multiplied almost indefinitely 
 but those cited are sufficient to illustrate the principle. 
 
 'Under this question of motive, 
 damages are divided into compensa- 
 tory and punitive. Punitive dam- 
 ages are distinct from compensatorj 
 and are discussed, post, Ch. 21. The 
 damages referred to here, are 
 those where no premeditated or 
 wrongful intention enters into the 
 negligence or non-performance of 
 duty by which the injury was caused. 
 Hamilton v. Railway Co., 57 N. 
 Y., 25; Pennsylvania, etc., Ry. Co. 
 v.Kelley,31 Pa. St., 372; Chic, etc. R. 
 Co. V. McKean, 40 111., 218 ; Mil- 
 waukee, etc., Ry. Co. v. Finsey, 10 
 Wis., 388 ; 111. Cent. Rd. Co. v. Welch, 
 52 111., 184; Peoria Bridge Ass. v. 
 Loomis, 20 111., 251, 71 Am. Dec, 
 268, 2 Wait's A. & D., 448, 466. In 
 the time of Lord Lamden,it was held 
 that "matters of aggravation may be 
 taken into account." 
 
 ^ Supra, Sec. 5. 
 
 'Ogle v. Barney, 8 Term R., 190; 
 Hoey v Felton, 11 Queen's B. (N. S.), 
 146; Scott V. Shepard, 3 Wils., 403. 
 This last case is the celebrated 
 "squib" case, is recognized as the 
 leading authority upon this question, 
 and is often cited. Baltimore City 
 Passenger Ry. Co. v. Kemp., 61 Md., 
 619, 48 Am. Rep., 134. The last case 
 
 was one where a cancer was devel- 
 oped as the result of the injury. 
 Drake v. ReiDy, 93 Pa St., 492; 
 Brown v. Railroad Co., 54 Wis., 342, 
 41 Am. Rep., 41; Winslow v. Beall, 
 ti Call, (Va.) 44 ; Case v. Mark, 2 Ohio, 
 169 ; Harriman v. Railway Co., 45 
 Ohio St., 11 ; Johnson v. Castleman, 2 
 Dana (Ky),878; Washington v. Rail- 
 road Co., 17 W. Va., 190 ; Campbell v. 
 Stillwater, 32 Minn., 308; Spauldiug 
 v. Winslow, 74 Maine, 533 : O'Brien 
 V. McGlenchy, 68 Maine, 557. 
 
 * Cleghorn v. Railroad Co., 56 N. Y., 
 44; Croaker v. Railroad Co., 36 Wis., 
 657, 17 Am. R., 504; Drew v. Rail- 
 road Co., 3 Keyes (N. Y.), 429 ; Isaacs 
 V. Railroad Co., 47 N. Y., 122, 7 Am. 
 Rep.. 418; Hanson v. Railroad Co., 62 
 Me., 81, 16 Am. Rep ,404; Osborne v. 
 McMasters, 40 Minn., 103. 12 Am. St. 
 Rep., 698 ; Ficlc v. Railroad Co., 68 
 Wis., 469 ; Williams v. Car Co., 40 La. 
 Ann., 87, 8 Am. St. Rep., 512 ; Laker v. 
 Railroad Co., 15 Oregon, 220 ; Louis- 
 ville, etc., R. R. Co. v. Willis, 83 Ky., 
 57 ; Texas, etc., R. R. Co. v. David- 
 son, 68 Tex, 370; Joslin v. Grand 
 Rapids, 50 Mich, 516, 45 Am. Rep., 
 54; Hunn. v. Railroad Co., 78 Mich., 
 513, 7. L. R. A., 500. 
 
§? U-12 DAMAGES IN GENERAL. 1 + 
 
 §11. What is the Measure of Damages. The meas- 
 ure of damages means the full sum or the entire amount 
 of the compensation, whether compensatory or exemplary, 
 which the injured person is legally entitled to recover 
 for the injury or wrong done. It represents one total 
 amount, but it includes in such amount, in the aggregate, 
 the several sums of money which the injured person is 
 entitled to receive and recover under the different ele- 
 ments of damages as specifically set forth in the next 
 chapter. It embraces compensation for whatever loss 
 the person has sustained, or will sustain, for necessary 
 expenses, loss of time, permanent disability, and bodily 
 pain and mental suffering, past, present, and in the future, 
 so far as these elements appear in each particular case. 
 It means a full recompense for all the damages which are 
 the natural consequences of the injury or wrong done, 
 both present and prospective. The measure of damages 
 is to find out and determine what the effect of the injury 
 has been and will be to health, and to ability to pursue 
 a business, trade or profession, and then award a gross 
 compensation therefor., A slight injury or a tendency to 
 disease, constitute no defense if the consequences of the 
 injury become great or permanent, for the reason that 
 the proximate results of a slight injury under some con- 
 ditions and in some persons are painful, serious, or even- 
 fatal.' 
 
 § 12. Damages Should be Reasonable. While it is 
 recognized that there is no mathematical rule for deter- 
 mining the amount of damages for the injury done or 
 caused to be done, where the injured person has sus- 
 tained permanent disability and cannot hope to be re- 
 stored to his former health and original strength, the 
 amount of damages awarded for bodily pain and mental 
 suffering, and for any permanent effect of the injury 
 upon the ability or capacity of the injured person to fol- 
 low his business, trade or profession should be fair and 
 reasonable. In measuring the damages the age, ability, 
 
 1 Where medical experts have testi- partv may labor under in the future 
 
 fied as to results which would in their as the result of the injuries. Omaha 
 
 opinion follow from personal injuries, St. Ry. Co. v. Emininger, 77 N. W. 
 
 and with reference to other results Rep., 675; Western & Atl. R. R. Co. 
 
 which they believed might follow, v. Young, 81 Ga., 397, 12 Am. St. 
 
 the proper damages are such as the Rep., 320. 
 jury believe from the evidence, such 
 
15 DAMAGES IN GENERAL. J 12 
 
 education, capacity to earn money, and all the circum- 
 stances of the injury and of the injured person, so far as 
 they are relevant and admissible, should be considered/ 
 
 The demands of the injured person are sometimes 
 unreasonable and exorbitant, and the position of the party 
 liable to respond for damages, whether as a method 
 of doing business and otherwise, is sometimes narrow, 
 miserly, or ridiculously small, or the liability therefor is 
 denied hi toto. In all such eases the amount of damages 
 must be ascertained by a jury, but their determination 
 should be/a/r and reasonable. The amount should not be 
 too large nor too small. It should not show any desire to 
 punish, or be subject to the criticism of improper influ- 
 ence or practice. What is fair and reasonable is such a 
 sum as would receive the approval of unbiased, impartial 
 and reasonable men, of fair intelligence and good judg- 
 ment, who would be just and not oppressive.^ 
 
 In Western & Atl. R. R. Co. v. Young, svpra^ the fol- 
 lowing charge was sustained: "Damages are given as 
 compensation for injury done and generally this is the 
 measure where the injury is of a character capable of 
 being estimated in money. If this plaintiff has been per- 
 manently injured as the result of the defendant's negli- 
 gence, and you have no data by which you may estimate 
 the probable future earnings of the plaintiff alter he at- 
 tains his majority, you would be authorized to award him 
 such sum as in your opinion would fairly and reasonably 
 compensate him for his pecuniary loss." 
 
 iTotten V. Railroad Co., 11 Fed. Co., 13 Fed, Rep., 591 ; Richmond & 
 Rep.. 564; Harris v. Railroad Co , 13 Danville R. Co. v. Allison, 86 Ga., 
 Fed. Rep., 591 : Crew v. Railroad Co., 145 : 11 L. R. A., 43 ; Phillips v. Rail- 
 20 Fed. Rep., 87; Fuller v. Citizens road Co.,L. R., 5 Q. B. Div., 78 ; Chris- 
 Nat. Bank. 15 Fed. Rep., 875; Keep tian v. Erb , 'm.) i7 N. E , 707 ; Davis 
 V. Railroad Co., 9 Fed. Rep., 6-25 ; Gale v. Railroad Co., 60 Ga., 329 ; Central 
 V. RMilroad Co., 76 N Y., 594; Pitts- R. Co. v. Senn, 73 Ga., 705, 27 Am. & 
 burg, A. & M. Rd. Co v. Donahue, En^. R. cases, 304; Ross v, Leggett, 
 70 Pa. St., 119; Hill v. Railroad Co., 61 Mich, 445; 1 Am. St. Rep., 608; 
 10 La. Ann., V92; Louisville & Nash- Pennsylvania R. Co v. Butler, 57 Pa. 
 ville R. R. Co. v. Stacker, 86 Tenn,, St., 339; Illinois Cent. R. R. Co. v. 
 34.S, 6 Am. St. Rep.. 840. Barron, 72 U. S. (5 Wall.). 90; City of 
 
 2Tenn. Coal & Iron Co. v. Roddy, 1 Panama, 101 U. S., 4-53; Deep Min- 
 
 Pickle (Terin.),400; Citizens St. Ry. ing, etc., Co. v. Fitzgerald, 21 Colo., 
 
 Co. V. Steen, 42 Ark , 421 ; Mo. Pac. 533; Fremont, etc., R. Co. v. French, 
 
 Ry. Co. V. Jones, 75 Tex., 151, 16 Am. 48 Neb ,638 ; Chicago, etc., R. Co. v. 
 
 St. Rep., 879 ; Western & Atl. R. Co. Adamick, 33 111. App,412; Pitts- 
 
 V. Young, 81 Ga , 397, 12 Am. St. R., burg, etc.R Co. v. Story, 63 111. App., 
 
 320; Pennsylvania Rd. Co. v. Books, 239: Chielin.sky v. Hoopes & Town- 
 
 57 Pa. St., 339; Goodhart v. Railroad send, 40 Atl. Rep., 1127; 1 Marv.,273. 
 Co., 177 Pa. St., 1 ; Harris v. Railroad 
 
§ 13 CLASSES AND ELEMENTS OP DAMAGES. 1 6 
 
 CHAPTER II. 
 
 CLASSES AND ELliMENTS OF DAMAGES. 
 
 Sec. I Sec. 
 
 13. Classes of Damages. | 14. Elements of Damages. 
 
 § 13. Classes of Damages Defined. Damages in actions 
 of tort may be divided into three general classes, to-wit : 
 
 First. Compensatory Damages. Compensatory^ dam- 
 ages embrace the actual damages sustained, including the 
 natural consequences of the wrongful act. It means the 
 fair and reasonable compensation which the injured per- 
 son is entitled to recover for the injury or wrong done to 
 him 
 
 Com/pensatory damages are also called' substantial dam- 
 ages. Substantial damages then mean the amount to be 
 awarded for some actual injury or wrong sustained and 
 suffered by the injured person. 
 
 Nominal damages are allowed in cases where there has 
 been a violation of some duty, or an infraction of some 
 right, but where no actual damages have been sustained ; 
 and are generally assessed at six cents. 
 
 Direct dam,ages are those damages which are the ordi- 
 nary and natural result of the wrongful acts of the 
 defendant; such damages as would naturally follow from 
 the injury or wrong done. 
 
 Remote damages are those which are the proximate 
 result of the injury, but which would not be expected to 
 appear as the natural consequence thereof. They occur 
 through a combination of conditions and circumstances, 
 over which the party liable for the injury has no control.^ 
 
 Compensatory damages will include one or more of the 
 elements of damages, which appear in every action for 
 damages for a personal injury, according to" the charac- 
 ter or extent of the injury or wrong done. 
 
 'The best illustration of remote result of the injury sustained. Ehr- 
 
 damages is where some sickness is gott v. Mayor, 96 N. Y., 264, 48 Am. 
 
 produced or chronic desease is de- Rep., 622. ' 
 veloped, as a fever or cancer, as the 
 
1 7 CLASSES AND ELEMENTS OF DAMAGES. J 14 
 
 Second. Special Damages. Special damages mean the 
 loss which the injured person has sustained and will sus- 
 tain, by reason of his inability to follow or pursue in 
 whole or in part his special work, business, or profession. 
 Special damages mean then compensatot-y damages ,and 
 do not include exemplary damages. If a music teacher 
 should lose his hand or power of speech, or a lawyer or 
 doctor should be so injured that he could not thereafter 
 practice his profession; or if any person prepared and 
 qualified h^ education and by practice and experience 
 to engage in a special work, becomes disabled by an 
 injury to do such work in the future, the damages which 
 he has so sustained are known as special damages/ 
 
 Third. Exemplary Damages. Exemplary damages in- 
 clude not only compensatory damages, but also additional 
 damages by reason of the malice, wilfulness, reckless- 
 ness, or wantonness, accompanjang the negligent or 
 wrongful act. They are called vindictive, or punitive; 
 sometimes, smart money. They are allowed as a punish- 
 ment to the wrongdoer, on account of the bad or wicked 
 intent, motive or purpose ; or careless indifference of the 
 party causing or doing the wrong or injury. Tnese dam- 
 ages frequently, if not always, enter into and become 
 important questions in actions for damages for libel, 
 slander, malicious prosecution, or breach of promise of 
 marriage.^ 
 
 § 14. Elements of Damages. There are certain 
 results or effects arising from every personal injury, for 
 which the injured person is entitled to recover damages. 
 
 ijosylin v. Grand Rapids, 50 Mich. 
 516; 53 Mich. 323; 45 Am. Rep. 54 
 Bloomington v. Chamberlain, 104 111. 
 268; Taylor v. Monroe, 43 Conn., 36 
 Tomlinson v. Derby, 43 Conn., 562 
 
 186; Voltz v.Blackmar,64N. Y.,440; 
 Bait. & O. R. R. Co. v. Boone, 45 Md., 
 344 ; Ray nor v. Nims,'37 Mich., 34, 26 
 Am. Rep., 493; Day v. Woodworth, 54 
 U. S. (13 How.), 363; Milwaukee, etc., 
 
 Baldwin v. Western R. R. Corp., 8 R. R. Co. v. Arms, 1 Otto, 489 ; Stimp- 
 
 Gray, 333 ; Ehrgott v. Mayor, etc., 96 son v. Railroad Co , 2 Wall Jr., 164 ; 
 
 N. Y., 276,48 Am. Rep., 622; Mclntire Bell v. Railway Co., 10 C. B. N. S., 
 
 V.N. Y. Cent. R. Co., 37 N. Y., 287 ; 287; 1 Sutherland on Damages, p. 
 
 Phillips V. South Western Ry. Co , L. 716 ; Bait. & O. R. R. Co. v. Boone, 
 
 R., 5 Queen's B, Div. 87 ; Treadwell v. 45 Md., 344 ; P. C. C. & St. Louis R. 
 
 Whittier, 80Cal., 575, 13 Am. St. Rep., Co. v. Ensign, 6 Circ. Dec, 616, 10 C. 
 
 175 ; Hunter v. Stewart, 47 Me., 419. C. R., 211 ; Hendricks v. Fowler.Q Circ. 
 
 ^MacLean v. Scripps, 52 Mich., Dec, 209, 16 C. C. R., 597; L. S. &M. 
 
 214; Cutler V. Smith, 57. 111., 252; S. Ry. Co. v. Scofield, ICirc. Dec,500, 
 
 Illinois, etc., R. R. Co. v. Cobb, 68 2 C. C. R.,305; Carr v. Traction Co., 
 
 111., 53; Nagle v. Mattison. 34 Pa. St., 10 Circ Dec, 296; Alt. & Gr. West. 
 
 48 ; Tyson v. Ewing, 3 J.J. Marsh. (Ky.), Ry. Co. v. Dunn, 19 Ohio St., 162. 
 2 
 
§ 14 CLASSES AND ELEMENTS OF DAMAGES. 18 
 
 All of these results do not appear in every injury, but 
 one or more will be found in every ease. The number 
 appearing in any one action will depend upon the nature 
 and extent of the injury or wrong. These results or 
 effects have become known as elements of damages and 
 include the following : 
 
 First. All expenses and disbursements paid or incur- 
 red to effect a cure and to recover from the effects of the 
 injury, including fees of physician, nurse, and expense 
 of medicine.^ 
 
 Second. The value of the time lost by the injured per- 
 son in and to his business, trade or profession, while he 
 is disabled and recovering from the effects of the injury.' 
 
 Third. Compensation for the physical pain and suffer- 
 ing caused by the injury, which the person has suffered 
 in the past, and may reasonably expect to suffer in the 
 future, as the natural result thereof.' 
 
 Fourth. Compensation for any loss or diminution of 
 the physical capacity or mental ability of the person 
 injured to learn, if a youth, or, if an adult, to pursue his 
 business, trade or profession, including any special dam- 
 ages.* 
 
 Fifth. Damages for any mental suffering or anguish 
 of mind, caused by the injury or wrong done, past, pres- 
 ent and prospective.'^ 
 
 1. Mental suffering caused by any physical injury to 
 the person and the fear or apprehension created as to its 
 effect.^ 
 
 2. Mental suffering caused by criticism or humiliation 
 occasioned by the mutilation of the body, disfigurement 
 of the face, impediment of speech, or impairment of the 
 mental faculties, on account of the permanent effect of 
 such physical injury.' 
 
 3. Mental suffering causedbyinsult, indignity, assault, 
 or discrimination, inflicted or received in a public place, 
 without provocation, when no physical injury is inflicted.' 
 
 4. Mental suffering caused by the utterance or publi- 
 cation of slanderous words or libellous language against 
 
 1 Post, Ch. 4. 5 Post, Ch. 8. 
 
 2 Post, Ch.. 6. 6 Post, Ch. 9. 
 
 3 Post, Ch. 6. ' Post, Ch. 10. 
 ' Post, Ch..!. ^ Post, Oh. n. 
 
I 9 CI/ASSES AND ELEMENTS OF DAMAGES. ? 14 
 
 the character, reputation, business or profession of any 
 person, when such words or language are untrue/ 
 
 5. Mental suffering caused by malicious prosecution, 
 false imprisonment, illegal use of process, or by any 
 unlawful and forcible interference with the person, as 
 abduction, seduction, or other unlawful interposition. f 
 
 6. Mental suffering caused by the negligent perform- 
 ance of contract, or failure to promptly transmit and 
 deliver telegrams, given to a telegraph company for 
 transmission, under certain circumstances." 
 
 7. Mental suffering caused by breach of contract of 
 marriage, or alienation of husband or wife.* 
 
 8. Mental suffering for loss of social position and 
 standing in the community, caused by selling intoxica- 
 ting liquors to the husband or father.^ 
 
 Sixth. Damages for any sickness caused by the injury, 
 or for any disease aggravated or developed in the injured 
 person, and all the natural consequences of such sick- 
 ness or disease." 
 
 Seventh. Damages for loss of any service, society, or 
 solatium, in case of a wife or husband, which would have 
 been given by the wife or husband; and for loss of any 
 care, support, education, culture and moral training of 
 children, which the injured parent would have given to 
 them.' 
 
 Eighth. Damages for the pecuniary loss which the next 
 of kin have sustained when death results from the injury 
 received, not exceeding the amount fixed by statute.' 
 
 2 P/jf/ rh 1.'^ '^ Post,Ch.n. 
 
 ^PosL Ch;i4 \Po^t; Chapters 18and 19. 
 
 * Post, Ch. 15. ° Post. Ch. 20. 
 
S 15 
 
 EXPENSES PAID AND INCURRED. 
 
 20 
 
 Sec 
 
 
 Sec 
 
 15. 
 
 Expenses Paid and Incurred. 
 
 23. 
 
 16. 
 
 Proof of Reasonableness and 
 
 
 
 Necessity of Expenses. 
 
 24. 
 
 17. 
 
 Proof of Payment Unnecessary. 
 
 25. 
 
 18. 
 
 Gratuitous Services. 
 
 26. 
 
 19. 
 
 Future Medical Services. 
 
 27. 
 
 20. 
 
 Married Women. 
 
 
 21. 
 
 Parent and Infant. 
 
 28. 
 
 22. 
 
 Funeral Expenses. 
 
 29. 
 
 CHAPTER III. 
 
 EXPENSES PAID AND INCURRED. 
 
 Medical Expenses in Case of 
 Death. 
 
 Pleading. 
 
 Special Expenses. 
 
 Employment of Servant. 
 
 Duty of Injured Person to Em- 
 ploy a Physician. 
 
 Non-Employment of Physician. 
 
 Expenses — Malpractice. 
 
 ELEMENTS OP DAMAGES — EXPENSES. 
 
 § 15. Expenses Paid or Incurred. All lawful and 
 reasonable expenses which have been paid or may have 
 been incurred to effect a cure constitute an element of 
 damages which the injured person is entitled to recover. 
 These damages are purely compensatorj^. They are 
 allowed because they are one of the natural results of 
 the negligence of the wrongdoer. 
 
 Reasonable expenses mean those expenses which are 
 fair, just, proper and necessary to allay the suffering, to 
 prevent an aggravation of the injury or development 
 of disease, and to effect a speedy cure and restoration. 
 The right to recover these expenses is not generally or 
 seriously contested, so long as they are reasonable, if the 
 physician who attended the injured person has a repu- 
 table standing in his profession, and if the injured 
 person has a meritorious cause of action. Their 
 reasonableness is determined by the nature and extent of 
 the injury, and by the care and expense which such injury 
 may require from the injured person, under all the cir- 
 cumstances, including physical conditions and mental 
 temperament, to enable him to recover therefrom. They 
 include all moneys paid for nursing and nurses, for phy- 
 sicians and medicines, and for every other necessary 
 expense to effect a cure and recovery.^ 
 
 JS^^^^'- ''■ SpH"gfield, 3 Dec. (Re ), v. Zeck, 24 Ohio St. , 329 ; Ohliger v 
 
 567; Cincinnati Omnibus Co. V. Kuh- Toledo. 10 Circ Dec 774- r w s, ri' 
 
 nell, 9 Dec. Re., 197 (11 B., 189) ; Klein R. Co. v. Boyer, l6' Circ Dec' qq : 
 
 V. Thompson, 19 Ohio St., 569; Gries Kleigel v. Aitken, 94 Wis., 432,"35 i,' 
 
EXPENSES PAID AND INCURRED. 
 
 15 
 
 In Ohio, in an action for injuries to tlie person, reason- 
 able expenses incurred for care and medical attendance 
 made necessary by the injury may properly be included 
 by the jury in their estimate of compensatory damages.' 
 
 R. A., 249 ; Huleliau v. Railroad Co., 
 68 Wis., 520 ; Goodno v. Oshkosh, -JS 
 Wis., 300; Moore v. Railroad Co., 47 
 Iowa, 688 ; Morris v. Railroad Co., 45 
 Iowa, 29 ; McKinley v. Railroad Co., 
 44 Iowa, 314; Muldowuey v. Railroad 
 Co., 36 Iowa, 462; Gibliu v. Mclntyre, 
 2 Utah, 384; Oliver v. North Pac. Tr. 
 Co., 3 Ore , 84 ; Cohen v. Railroad Co., 
 14 Nev., 376 ; Colder v. Lund, 50 Neb., 
 867 ; Friend v. lugersoll, 58 Neb., 281., 
 Mo. Kan. & T. R. Co. v. Weaver, 16 
 Kan., 456 ; Abilene v. Wright, 4 Kan. 
 App., 708; Chartrand v. Railroad Co., 
 57 Mo. App , 425 ; Whalen v. Railroad 
 Co., 60 Mo., 323; Stephens v. Rail- 
 road Co., 96 Mo., 207; Chicago, 
 etc. Rd. Co. V. Wilson, 63 111., 167; 
 Chicago, etc. Rd. Co. v. Holland, 
 122 111., 461 ; Chicago, etc. Rd. Co. v. 
 Langlass, 66111., 361 ; Chicago, etc. Rd. 
 Co. V. O'Brennan, 65 111., 162 ; Chicago 
 etc. Rd. Co. V. Jones, 66 111., 349 ; Sheri- 
 dan V. Hibbard, 119 111., 307; Peoria 
 Bridge Ass. v. L,oomis,i;0 111 , 236; Con- 
 solidated Coal Co. V. Haenni, 146 111., 
 614; Illinois Centr. Rd. Co. v. Cole. 
 
 60 111. App., 480; Indianapolis v. 
 Gaston, 58 Ind., 277 ; Pennsylvania 
 Rd. Co. V. Marion, 104 Ind., 239, 3 N. 
 E. Rep., 874; Ohio & M. Rd. Co. v. 
 Crosby, 107 Ind., 32, 7 N. E. Rep., 
 373; Cincinnati, H. & I. R. Co. v. 
 Claire, 33 N. E., 918, 6 Ind. App., 390; 
 Nappanee v. Ruchman, 7 Ind. App., 
 361; Forbes v. Loftin, 50 Ala, 396; 
 South., etc. Alabama R. Co. v. McLen- 
 don, 63 Ala., 266 : Landsford v. 
 Walker, 8 South. Rep., 386; Mul- 
 draugh's Hill, C. & C. T. Co. v. Mau- 
 pin, 79 Ky., 101 ; Kentucky C, Rd. Co. 
 V. Ackley, 87 Ky., 278, 12 Am. St. 
 Rep., 480; Memphis & C. Rd. Co. v. 
 Whitford, 44 Miss. 466,7 Am. Rep., 
 699 ; Hart v. Railroad Co., 33 S. C, 427 ; 
 Parker v. Railroad Co., 48 S. C, 364; 
 International, etc. R. Co. v. Terry, 62 
 Tex., 38, 50 Am. Rep., 329; Atchi- 
 son, T. & S. F. Ry. Co. v. Click, 
 (Tex. Civ. App), 32 S. W. Rep,, 226; 
 Lutchei & Moore Lumber Co. v. 
 Dyson, (Tex. Civ. App,), 30 S. W. Rep., 
 
 61 ; Houston City St. Ry. Co. v. 
 Richart, 87 Tex., 5.39, 30 S. W. Rep., 
 
 920 ; Tex. & Pac. Ry. Co. v. Cornelius 
 (Tex. Civ. App.), 30 S. W. Rep., 720 ; 
 Sau Antonio, etc. Rd. Co. v. Keller, 11 
 Tex. Civ. App., 569 ; Wallace v. Rail- 
 road Co., 104 N. C, 442 ; Robinson v. 
 Simp.son, 8 Houst. (Del.), 398, 32 Atl. 
 Rep., 287; Jones v. Belt, 8 Houst. 
 (Del,), 562;McMahon v. Railroad 
 Co., 39 Md., 438; Pittsburg, etc. Rd. 
 Co. V. Andrews, 39 Md., 329; Balti- 
 more City Rd. Co. v. Kemp, 61 Md., 
 74; Welch v. Ware, 32 Mich., 77; 
 Schultz V. Holliday, 54 Mich., 73 ; 
 Sherwood v. Railroad Co., 82 Mich., 
 374; Kinney v. Folkerts, 84 Mich., 
 616; Lacas v. Railway Co., 92 Mich., 
 412 ; Penn. & O. Canal Co. v. Graham, 
 63 Pa, St., 297, 3 Am. Rep., 549 ; Scott 
 V. Montgomery, 95 Pa. St., 444 ; Penn- 
 sylvania, etc, R. Co. V. Books, 57 Pa. 
 St., 339, 98 Am. Dec, 229 ; McLaugh- 
 lin V. Corry, 77 Pa. St., 109, 18 Am. Rep., 
 432; Gale v. Railroad Co., 76 N. Y., 
 594; Cregin v. Railway Co, 75 N. Y., 
 192; Filer V. Railroad Co., 49 N. Y., 
 42 ; Williams v. Vanderbilt, 28 N. Y., 
 217, 84 Am. Dec, 333 ; Walker v. Rail- 
 road Co., 63 Barb. (N. Y.), 260; Ash- 
 craft V. Chapman, 38 Conn., 230; 
 Fuller V. Railroad Co., 21 Conn., 557 ; 
 Segur V. Barkhamsted, 22 Conn., 290; 
 Smith V. Holcomb, 99 Mass., 529; 
 Johnson v. Holyoke, 105 Mass., 80; 
 Bovee V. Danville, 53 Vt., 183; Folson 
 V. Underbill, 36 Vt., 581; Nones v. 
 Northhouse, 46 Vt, 587; Holyoke v. 
 Railway Co., 48 N. H., 541 ; Hopkins 
 V. Railroad Co., 36 N. H., 9, 72 Am. 
 Dec, 287; Mason v. Ellsworth, 32 
 Me., 271; Blackman v. Gardiner, etc. 
 Bridge, 75 Me., 214 ; Totten v. Rail- 
 road Co., 11 Fed. Rep., 564; Veu de 
 Venter v. Railway Co., 26 Fed. Rep., 
 32; Newman v. Railroad Co , 38 Fed. 
 Rep, 819; Davidson v. Railway Co., 
 44 Fed. Rep., 476 ; The Alijandro, 56 
 Fed. Rep., 621 ; Vicksburg & Meriden 
 Rd. Co. V. Putnam, 118 U. S., 545; 
 Wade V. Leroy, 61 U. S. (20 How.), 34; 
 Phillips V, Railroad Co,, L. R.,5 Q. B. 
 D.,78 ; Theobald V. Railway Passenger 
 Assur. Co., 10 Excheq., 45, 2 C. L. R., 
 1034. 
 2 Cries v. Zeck, 24 Ohio St., 329. 
 
f 16 EXPENSES PAID AND INCURRED. 22 
 
 If the bill for expenses is unreasonable or exorbi- 
 tant, then the excess of such unreasonableness or exor- 
 bitancy should be disallowed or eliminated from the 
 charge made. If the person is already sick when he 
 receives an injury through the negligence of another, he 
 may recover for the additional expenses caused by the 
 injury.' 
 
 Qualified Physician. If the proof shows that the wit- 
 ness practiced and was recognized as a physician and sur- 
 geon, such evidence raises the presumption that he is 
 qualified to practice, and it is unnecessary to prove by the 
 record that he was licensed to practice under the statute.^ 
 
 Contra. The defendant is not liable for the services 
 of a surgeon who is not qualified to practice as provided 
 by the law of the stated 
 
 § 16. Proof of the Reasonableness and Necessity of 
 Expenses. To enable the injured person to recover for 
 the expenses paid or incurred to restore himself and to 
 effect a cure, the burden of proof is upon him to show the 
 extent of the injury, and that it was of such a character 
 as to require the services of a nurse and the need and 
 advice of a physician.* 
 
 It is necessary for the plaintiff to show, in order to 
 recover for the expenses of medicines, nurse, and medical 
 attendance, and other expenditures of like character, in 
 an action for damages for a personal injury, two facts, 
 viz : 
 
 First. What expenses he has actually incurred, and ; 
 
 1 Emery V. Boston, etc. Rd. Co., 36 that were unnecessary, fictitious, or 
 
 Atl. Rep., 367. exorbitant. 
 
 * Golder v. Lund, 50 Neb., 867, 70 Leeds v. Gas Light Co , 90 N Y 
 
 N. W., 379. 26 ; Smith v. Railroad Co., Mo. , 18 s! 
 
 »San Antonio St. Ry. Co. v. Muth, W., 971 ; Hulehan v. Railroad Co , 68 
 
 (Tex. Civ. App ) 27 S. W. Rep., 443. Wis., 520 ; Indianapolis, etc.Rd Co v 
 
 *This IS right for it is the plaintiff Boring, 71 111., 391 ; Reed v. Railroad 
 
 who is seeking to compel the defend- Co., 57 Iowa, 23; Eckard v. Railroad 
 
 ant to pay to him compensation for Co., 70 Iowa, 353; Houston & T C R 
 
 expenses which he claims have been Co. v. Pereira, (Tex Civ App ) 45 S 
 
 incurred on account of his negli- W. Rep., 767; Mo. & Pa'c. Rd Co v 
 
 gence. If there is no evidence of the Lyle, 57 Tex., 505 ; Huizega v Cutler 
 
 necessity of the services, and of the & Savage L. Co., 57 Mich 272 • South 
 
 reasonableness of the charges there- Cov. & C. St. Ry. Co. v. Ware '84 Kv 
 
 for they should be entirely disre- 267 ; McKenna v. Railroad Co., 58 n! 
 
 garded. The plaintiff should not be Y. Supp. 462. 
 allowed compensation for expenses 
 
23 EXPENSES PAID AND INCURRED. 
 
 16 
 
 Second. That such expenses were reasonably incurred. 
 It is not the reasonable charge for nursing and medical 
 services which he may recover, but the expense to him 
 of such services, hot to exceed their reasonable value.' 
 
 Evidence of expenses incurred in making trips to a 
 health resort and in seeking a cure from personal injuries 
 received through another's negligence is admissible, but 
 the question should be submitted to the jury to find 
 whether or not they were necessary, reasonable, and judi- 
 cious expenditures, within the rule that such expendi- 
 tures are a proper ingredient in the damages to be 
 awarded.^ 
 
 There must be some evidence showing the necessity of 
 such expenses.* 
 
 When the plaintiff on the advice of a physician took a 
 journey to a distant city for special treatment, on account 
 of the peculiar physical conditions caused by the injury, 
 the court held that the expenses so incurred might be 
 recovered.* 
 
 It is competent to show the value of the services of the 
 attending physician if the reasonableness of the bill be 
 disputed, by the evidence of physicians who live in the 
 neighborhood or vicinity of the residence of the plain- 
 tiff.^ 
 
 When it appeared that the injured person was treated 
 at her house four times and at the office of the physician 
 
 'Golder V.Lund, 50 Neb., 867, 70 N. upon the whole whether you think 
 
 W. Rep., 379. that is too much or too little." In 
 
 2 Hart V. Railroad Co., 33 S. C, 427, Huizega v. Lumber Co., 57 Mich., 272, 
 
 10 L. R. A , 794. objection was made to the testimony 
 
 In Phillips V. Railway Co., L. R., showing the value of the physician's 
 
 5 Q B. D., 78, the plaintiff took services, in caring for the plaintiff 
 
 a journey, as an aid to his re- during his sickness and the charges 
 
 covery from the injury, to the for nurses and medicines. The court 
 
 south of France under the advice said: " There is no pretense that any 
 
 of a physician. He was a physician of these things were unnecessary, or 
 
 himself and had a large practice in that the charges were exorbitant 
 
 the city of London. As to expenses. These also were a natural if not nee 
 
 Lord Coleridge instructed the jury to essary consequence of what the jury 
 
 give what they thought fair and rea- found to be the negligence of the 
 
 sonable, adding : " If you think that defendants, and if the plaintiff was 
 
 he was put to any extra expense, that entitled to recover, these were proper 
 
 his living, his journeys, or his car- items in that recovery." 
 
 riages, or horses, were seriously in- ' Hewitt v. Eisenbart, 36 Neb., 794, 
 
 creased, or that he was put to expense 55 N. W. Rep,, 252. 
 
 by the action of the company, tiiat is * Sherwood v. Railroad Co., 82 
 
 an element that yon ought to take in- Mich. , 374. 
 
 to consideration. He puts it at one * Atchison v. Rose, 43 Kan., 605, 22 
 
 thousand pounds, and you will say Pac, 561. 
 
§ 16 EXPENSES PAID AND INCURRED. 24. 
 
 fifteen or sixteen times, the nature and extent, but not 
 the value, of the medical services having been proved, it 
 was competent for the jury to consider the evidence in 
 assessing damages, and to award at least nominal dam- 
 ages for professional treatment/ 
 
 When a passenger is injured while riding on a car and 
 calls a physician, there can be uo allowance beyond the 
 ordinary charge for such services.^ Where the injured 
 person has treated himself in his injured condition, he is 
 entitled to recover compensation for the value of the 
 medicines necessarily purchased and used for such pur- 
 pose.' The value of drugs used for a sickness in the fam- 
 ily of plaintiff caused by a pond made by a railroad com- 
 pany may be recovered.* A person may recover a fair com- 
 pensation for necessary expeijses incurred for nursing 
 by ladies in the house who were in constant attendance 
 during a fixed period, without evidence of the value of 
 such services. The jury may measure the same by their 
 own knowledge and experience,, as they are presumed to 
 be reasonably familiar with the value of such services.* 
 
 Bills Rendered. It is not necessary to prove the value 
 of the physician's services when the plaintiff gives proof 
 of the amount of physican's bills which he has paid.^ 
 
 Where it appears that the injured person was kept and 
 cared for at a private house, other than his own, this 
 fact justifies the finding that he was there on expense.^a 
 
 It would be error for the court to leave it to the jury 
 to determine and "find the amount of the expenses, when 
 no proof has been given showing the value and extent of 
 the same.' 
 
 ipeeney v. Railroad Co., 116 N. Y., road Co., 10 N. Y. Supp., 105, contra- 
 
 375, 5 Iv. R. A., 544. Galveston, etc., Rd. Co. v Thorns 
 
 2 Gulf C. & S. F. R. Co. V. Campbell, berry, 17 S. W. 521 
 
 76 Tex., 134, 13 S. W. Rep., 19. "a McGarrahan v. Railroad Co , 50 
 
 'Totten V. Railroad Co., 11. Fed. N. E., 610, 4 Am. Neg. Rep., 284. 
 
 ^!?,-'^^^x, „ „ ' '^^'^^ ^- Mo., & Pac. Ry. Co., 99 
 
 * Centr. R. & B. Co. v. Wood, 51 Ga. Mo. 347 ; Reed v. Chic R I & P R 
 
 515; San AnLonio & A. R. Co. v. Co., 57 Iowa, 23 ; Galveston H & S 
 
 Gwynn 4Tex. Civ. App., 338, 15 S.W. T. Rd. Co. v. Dulaney. 56 Tex., 256; 
 
 f?;' T. -1 J ^ ,„ Hunter v. Mexico, 49 Mo. App., 17; 
 
 o,« on?^ ""i. o'^''°^J> ^,°/ P^ ^°-' ^^'^^'■'^ ^- Railway Co., 70 Iowa, 353 ; 
 
 236; 20Am. St.Rep., 60; McGarrahan Wheeler v. Railway Co (Tex Civ 
 
 V. Railroad Co., Mass 53 N. E. 610. App.) 43 S. W. Repf, 876';' Houston & 
 
 "Q ?,^?^° ^^l ^l- ^°- ^- ^^"^^y- T- C- R- Co. V. Kimbell, (Tex. Civ. 
 /9 111. App., 679 ; Morseman v. Rail- App.) 43 S. W. Rep 1049 
 
25 EXPENSES PAID AND INCURRED. §? 17-18 
 
 § 17. Proof of Payment Unnecessary. The 
 
 expenses of a physican, nursing, and medicines, when 
 proved, may be recovered although they have not been 
 paid at the time of the trial. ^ 
 
 The payment of such expenses is a matter of mutual 
 agreement between the injured person and the attend- 
 ants performing services. All that the plaintiff need 
 show is that he is liable for such services and the amount 
 and value.' The injured person may recover if he testi- 
 fies that the physician has sent him a bill for a certain 
 amount and the physician testifies that he charged such 
 an amount and that it was reasonable.^ Evidence that a 
 physican attended a patient and gave him professional 
 assistance justifies a finding that the services are ren- 
 dered for a pecuniary recompense to be paid by the 
 patient.* 
 
 Where the plaintiff has been injured through the neg- 
 ligence of the defendant, the liability for the expenses of 
 physicians and nurses rests upon the ground that they 
 we're rendered necessary by the defendant's neglect of 
 duty, and is not altered by the fact that the plaintiff has 
 made an arrangement for the payment of such expenses, 
 or whether he ever pays them.'* 
 
 § 18. (xratuitous Services. In some states it has 
 been held that an injured person may recover for the 
 value of medical services even when they have been 
 
 iGries V. Zeck, 24 Ohio St., 329; v. Loreutzen, 79 Fed. Rep., 291; 
 
 Cincinnati Omnibus Co. v. Kuhnell, 9 Chic. & A. R. Co. v. Harrington, 
 
 Dec Re 197 (U B. 189) ; Klein v. 77 111. App., 499 ; Toledo Electric St. 
 
 Thompson, 19 Ohio St., 569 ; Dixon v. Ry. Co. v. Tucker, 7 Circ. Dec, 169, 
 
 Bell, 1 Stark, 2 E. C. L., 1 14 ; Lacas v. 11 C. C, 41 1 ; Engler v. Telegraph 
 
 Railroad Co., 92 Mich., 412; Co., 69 Fed., 185 ; Omaha St. Ry. Co. 
 
 Meads v. Martin, 84 Mich., 306; v. Emmiiiger, 77 N. W. Rep., 675. 
 
 Walker v. Pittman, 108 Ind., 341; 2 ];^utcher & Moore L. Co. v. Dyson, 
 
 Consolidated Coal Co. v. Scheiber, (Tex. Civ. App ), 30 S. W., 61. 
 
 65 111. App., 304; Kendall v. Albia, 3 Reynolds v. Niagara Falls, 31 
 
 73 Iowa, 241; Varrfhan v. Council j^ ^ ^^ 954 
 
 Bluffs, 52 Iowa 698 Donnelly v.Huf- \ ^^q^^;^^^^ ^ Railroad Co., 50 
 
 Schmidt, 79 Cal., 74, Wilson v. Kan „ 234 
 
 road Co. 13 Utah, 352, 44 Pac. Rep., N. E. Rtp., bib, 4 Am. JNeg. Kep„ zo*. 
 
 1040 • Abilene v. Wright, 4 Kan. s Denver River Co. v. Lorentzen, 24 
 
 App.', 768; Minneapolis Thresh. C. C. A., 592, 79 Fed Rep., 291. 
 
 Machine Co. v. Regier, 51 Neb., 402; Conira. In Madden v Raili-o-^d 
 
 Lutcher, etc.. Lumber Co. v. Dyson, Co., 50 Mo. App., 666, it is held that a 
 
 (Tex Civ App.,) 30 S. W. 61 ; McNaier jury cannot properly be permitted to 
 
 V Railroad Co., 4 N. Y. Supp,, 310 ; consider the cost of physican s ser- 
 
 Revnolds v. Niagara Falls, 31 N. Y. vices, if the evidence does not show 
 
 Supp. 954; Chacey V. Fargo {N.D.). that anything was paid for such 
 
 64 N. W. Rep., 932; Denver River Co. items. 
 
g 18 EXPENSES PAID AND INCURRED. 26 
 
 rendered voluntarily and gratuitously upon the principle 
 that they were rendered for the benefit of the plaintiff 
 and not for the benefit of the defendant. ' 
 
 The plaintiff, a physican, may recover for the value of 
 the services of a physican who attended him, whatever 
 they are reasonably worth, although it appears that such 
 physican intends to make no charge for the same on 
 account of the plaintiff being a brother physican.^ 
 
 Recovery for services necessary to ameliorate the 
 condition and suffering of the plaintiff may be Jiad, 
 although gratuitously rendered, when a recovery for neg- 
 ligence of the defendant can be had.' 
 
 Payment by a Stranger. In Klein v. Thompson, 
 supra, the court expressly holds that the right to recover 
 is one of the natural consequences of the wrong done, 
 and whether paid by the plaintiff or by a stranger such 
 payment does not lessen the liability of the defendant. 
 Whether the plaintiff may pay the stranger is a matter of 
 conscience with him, if no other reason can be given why 
 he should pay. But the contra doctrine is held in some 
 states.* 
 
 Nursing by Family. Mitigation. The injured per- 
 son cannot recover as expenses the value of the services 
 of any one of his family in nursing him, unless there was 
 an express agreement by him to pay therefor. Such nurs- 
 ing involves no legal liability on his part, and therefore 
 affords no basis for a claim against the defendant, as for 
 expenses paid. In the absence of an express contract, 
 the law will not presume one, so long as the family rela- 
 tion continues. An injured person may hire an adult 
 member of his family to nurse him, or to prescribe for 
 him as a physician, in the same manner and with like 
 effect that he may hire a stranger.'* 
 
 ' D. S. Gregory, 2 Ben., 226 ; Bros- 2 Ohliger v. Toledo, 10 Circ. Dec 
 
 nan v. Sweetser, 127 In<i., 1; City of 769. 
 
 Indianapolis v. Gaston, 58 Ind.. 224; iv^„„^„^„„„•,„ -da r^ ^r ■ 
 Pennsylvania R. Co. v. Marion, 104 I04!nd 239 3N P 8^4 ^' "°''' 
 Ind., 239, 3 N. E. Rep., 874 ; Ohio & M. , ^ ■' ^^^' "^ N- E., 874. 
 R. W. Co. V. Dickerson, 59 Ind., 569; „„ Peppercorn v. Black River Falls, 
 Cunningham v. Railroad Co., 102 »« Wis., 38, 46 Am. St. Rep., 818; 
 Ind., 478 1 N. E. Rep., 800 ; Gries v. ^°ii'.!,'' "■ ^"°'^- ^^ Neb., 867 ; Fry 
 Zeck, 24 Ohio St., 320; Klein v v. HiUan, 37 S. W. Rep., 359 ; Drink- 
 Thompson, 19^0hio St., 669 ; Cincin- '^ater v. Dinsmore, 80 N. Y., 390. 
 nati Omnibus Co. v. Kuhnell, (9 Dec. 5 Goodhart v. Pennsylvania R Co 
 
 T^i-H^'in,!'' n- ''v'ia ''^"^"^ " ^^^ ^^-S^- 191.35AtI,191; Co^ra. 
 Toledo, 10 Circ. Dec, 769. Brosnan v. Sweetser, 127 Ind., 1. 
 
^7 , EXPENSES PAID AND INCURRED. § 19 
 
 But the defendant cannot reduce the amount of expen- 
 ses paid for a nurse upon the ground that the injured 
 person had a family who were capable of taking care of 
 him, and evidence of that fact is inadmissible.' 
 
 In Illinois the value of the wife's services in nursing 
 her husband is not an element of damage to be awarded 
 an injured person for negligent injuries.' 
 
 But the contrary doctrine is held in Wisconsin.' 
 
 The expenses of a nurse or of a physician at a hospitaL 
 cannot be recovered.^ 
 
 § 19. Future Medical Services. There can be but 
 one action to recover damages for an injury, and compen- 
 sation for the injury in the future as well as in the past 
 must be estimated and awarded. Therefore an injured 
 person may recover for reasonable expenses which it may 
 be necessary to incur in the future on account of any 
 exceptional nature of the injury, if such future expenses 
 will be the natural results of the injury. In some 
 instances, before such expenses can be allowed, it may be 
 necessary to leave it to the jury to find that the injury is 
 such that the expenses will be reasonably certain to be 
 required in the future, or what future expenses may be 
 reasonable. All reasonable expenses incidental to 
 attempts to effect a cure, and to lessen the amount of the 
 injury, are allowable. Proof should be given as to the 
 reasonable extent and value of such future services. 
 These expenses will include all bills for nursing, physician 
 or surgeon, attendance, or other means used and employed 
 to relieve pain, and to effect a cure.^ 
 
 In Baker V. Hagey, 177 Pa. St., 128, the plaintiff brought 
 his action to recover damages for loss of an arm. He 
 had at the time of this injury lost his other arm. It was 
 held that the jury might, in making up the estimate of the 
 
 1 Kendall v. Albia, 73 Iowa 241, 34 Y., 375, 5 L. R. A., 544; Kendall v. 
 
 N. W. 833; Forbes v. Loftin, 50 Ala., Albia, 73 Iowa, 241 ; Baker v. Hagey, 
 
 396; Brosnanv. Sweetzer, 127 Ind., 1. 177 Pa. St., 128; Goodhart v. Rail- 
 
 2 Peoria D. & E. R. Co. V. Johns, 43 road Co., 177 Pa. St., 1; Turner v. 
 
 111. App., 83. Railroad Co., 158 Mass., 261 ; St. 
 
 ' Crouse v. Chic. & N. W. Ry. Co. Louis, etc. Rd. Co. v. Blackburn, 15 
 
 (Wis.), 78 N. W., 446. S. W., 469 ; Nappanee v. Ruchman, 7 
 
 *Drinkwater v. Dinsmore, 80 N. Y., Ind. App., 361 ; South, etc. Ala. R. Co. 
 
 390, 36 Am. Rep., 624. v. McLenden, 63 Ala , 266 ; Hopkins v. 
 
 ^Toledo Electric St. Ry. Co. v. Railroad Co., 36 N. H., 9, 72 Am. Dec, 
 
 Tucker, 7 Circ. Dec, 169, 13 C. C, 411; 287; Wallace v. Railroad Co., 8 
 
 Phillips V. Railway Co., L. R., 5 Q.B. D., Houst. (Del.) , 529. 
 78; Feeney v. Railway Co., 116 N. 
 
g 20 EXPENSES PAID AND INCURRED. 28 
 
 probable future expenses for nursing and attendance, 
 which he would continually require, consider the fact 
 that before the time of the injury he had only one arm.^ 
 The plaintiff may recover the amount already expended 
 and what he may reasonably expect to expend, in order 
 to cure himself of an injury received through the negli- 
 gence of another.^ 
 
 § 20. Married Women. In an action to recover dam- 
 ages by a married woman for personal injuries, no allow- 
 ance can be had for nursing, medical attendance or drugs, 
 for the reason that her husband is liable therefor.' But 
 if the plaintiff has become responsible for such expenses 
 on her separate account, she may recover the same.* If 
 the plaintiff is a widow, she may recover for such 
 expenses.'* 
 
 The value of the services rendered by the wife in nurs- 
 ing her husband for personal injuries sustained by him, 
 are recoverable by the husband in an action for such 
 injury. ° But the conti-ary doctrine is held in Illinois.' 
 
 Huslband. The amount a husband is entitled to recover 
 for nursing his injured wife and doing her work is the 
 value of his services in those capacities, and not the 
 amount of wages he might have earned in working at his 
 trade.' 
 
 A married woman cannot recover for expenses made or 
 incurred by her husband." 
 
 iln Feeney v. Railroad Co., 116 N. kins v. West, 56 Conn., 478, 16 Atl. 
 
 y., 375, 5 L. R. A., 544, the court said : Rep., 237 ; Moody v.Osgood, 50 Barb., 
 
 " Where it is reasonably certain that 628. 
 
 medical attention will be needed in * Lacas v. Railway Co., 92 Mich., 
 
 the fnture, the expense thereof may 412; Columbus v. Strassuer, IMSIud.' 
 
 be considered by the jury in assessing 301; Shelby Co. v. Castelle'r, 7 Ind. 
 
 damages, as it is a direct and natural App., 309 ; Drinkwater v Di'nsmore 
 
 result of the defendant's negligence." 80 N, Y., 390 ; L?mmiman v. Railway 
 
 2 Toledo Electric St. Ry. Co. v. Co., 71 N. W., 153, 3 Am. Neg. Rep 52 
 
 Tucker, 7 Circ. Dec, 169, 13 C. C.,411. ^ Williams v. City of West Bav Citv 
 
 ^Mt. Adams & E. P. Ry. Co. v. Mich., 78 N. W., 328 
 
 Wysong, 6 Circ. Dec, 28, 8 O. C. C. «Crouse v. Chic. & N W Rv Co 
 
 R., 211; Cregin V. Railroad, 75 N. Y., (Wis.), 78 N. W 466 
 
 l^l ' £^ 7°^^ ^- ?• '^°iJi ^^^}'^' ^*'' ' P^°"^' ^- & E. K. Co. V. Johns, 43 
 
 Ind. 32, 7 N. E. Rep., 373; Belyea v. 111. App., 83 
 
 Railroad Co., 61 Minn., 224 ; Atchison, s Hazard Powder Co v Voleer 7 C 
 
 f};"- ^^-^o- ''■ '^^Oinnis, 46 Kan., C A , 130, 58 Fed. Rep., 152. ' 
 
 i?lv^'''ij™,°''^'^^*y^y- ^°-"^-^^°'P' 'Mt. Adams & E P. Ry Co v 
 
 61 Md., 74, 48 Am,, Rep., 134 ; Chacey Wysong, 6 Circ. Dec, 28 ■ SO c' C 
 
 V. Fargo, 64 N. W. Rep., 932 ; Tomp- R.,211 ^o , » u. L.. i.. 
 
29 EXPENSES PAID AND INCURRED. ?? 21-22 
 
 § 21. Parent and Infant. Parent. Where an action 
 is brought by a parent to recover damages for injury to 
 his child, he can recover only those expenses for nurs- 
 ing, physicians and attendance which have been actually 
 incurred or are immediately necessary.^ In case of 
 death, the parent can recover only those expenses 
 incurred from the time of his injury to his death.^ But 
 no recovery can be had for future expenses by the parent 
 when the injured person is an infant.' 
 
 Infant, in an action by a minor, expenses incurred 
 for medical attendance cannot be recovered unless he has 
 actually paid them.* But in Alabama it is held that there 
 might be a recovery for medical attendance during the 
 sickness, in an action by such minor for damages, even if 
 such expenses had not been paid, for the reason that 
 minority, if a defense to a suit by the physician for such 
 expenses, is a personal one, which could be taken advan- 
 tage of only by the minor. ^ 
 
 An infant cannot recover for a medical bill which has 
 been paid by the father." Nor where the parents of the 
 minor are liable primarily for the bill.' 
 
 Testimony of a mother as to the value of her time, and 
 the amount of care given by her to the child on account 
 of a personal injury, supports an instruction permitting 
 " reasonable compensation for the care of her child occa- 
 sioned by the injury."* 
 
 § 22. Funeral Expenses. In estimating the dam- 
 ages to be recovered, the expenses of the funeral of the 
 deceased may be considered by the jury, and are to be 
 included in the amount recovered, where the parties for 
 whose benefit the action is brought are legally liable 
 therefor, or when such expenses have been paid by them." 
 
 1 Drew V. Railroad Co., 26 N. Y., 49; 'Newbury v. Lumber Co., 100 Iowa, 
 
 Cummingsv. Railroad Co., 109 N. Y., 441. > „„ »t 
 
 S5- Mo. Pac. Ry. Co. v. Palmer, 76 N. « Morgan v. Dallas Co., (Iowa) 72 N. 
 
 W. Rep., 169 ; Tex. & P. Rd. Co. V. W. Rep., 304. 
 
 W. Cornelius (Tex. Civ. A pp.), 30 S. 'Pennsylvania R. Co. v. Lilly, 73 
 
 ■^ 720 Ind., 252; Mayhewv. Burns, 103 Ind., 
 
 2'Davis V. St. Louis, I. M. & S. R. 328 ; Consolidated Traction Co. v. 
 
 Co., 53 Ark., 117, 7 L. R. A., 283. Hone, 59 N. J. L., 275 ; Rains v. 
 
 'Cummingsv. Railway Co., 109 N. Railroad Co., 71 Mo., 164 36 Am. 
 
 Y 95 Rep., 459 ; Owen v. Brockschmitt, 54 
 
 *Tompkins v. West, 56 Conn., 478. Mo., 286 ; Little Rock, etc., Rd. Co. v. 
 
 6 Forbes v. Loftin, 50 Ala., 396. Barber, 33 Ark., 350, 34 Am. Rep 44 ; 
 
 "Kleigel v. Aiken, 94 Wis., 432, 35 Gulf, etc., R. R. Co. y. Southwick, 30 
 
 L. R. A 249. S. W. Rep., 592; Hedrick v. Railroad 
 
§ 22 BXPEN,SES PAID AND INCURRED. 30- 
 
 In New York the necessary funeral expenses of the 
 deceased may be recovered where it appears that any 
 one of those for whom the action is brought is legally 
 bound to pay them and proof of such expenses is compe- 
 tent.^ But under the English statute damages for fu- 
 neral expenses of the deceased and for the family mourn- 
 ing apparel cannot be recovered.^ 
 
 Under the Oregon statute the damages incident to the 
 death are a part of the assets of the estate and may be 
 recovered, but no allowance can be made for expenses of 
 illness caused by the injury up to the time of death, nor. 
 for expenses for the burial of the deceased." 
 
 But in Arkansas, it is held, in an action brought by a 
 mother for the death of her infant child, that "any 
 necessary expenses incurred by her for nursing and 
 medical attendance before its death and for burial 
 expenses afterwards were proper elements" of damages 
 to be considered by the jury.* In a later case the court 
 held that since the estate of the decedent was not liable 
 for funeral expenses unless the claim, within the statu- 
 tory period of two years, had been presented for allow- 
 ance against the estate, it was error for the court to allow 
 the jury to consider such expenses if there was no evi- 
 dence of such presentation." 
 
 Mitigation. The defendant cannot be permitted to 
 prove for any purpose that he paid for the support, care, 
 or funeral expenses of the decedent in bar or in mitiga- 
 tion of damages." 
 
 The cost of mourning apparel for the family or any other 
 expense which is not legally imposed upon those liable 
 therefor cannot be recovered.' 
 
 Co., 4 Wash., 400; State v. Probate ^DaJtonv. Railway Co 4 C B N 
 
 Court 51 Minn., 241 ; General Laws S., 296 ; Boulter v. Webster 13 Weeklv 
 
 of Minn. (1892), Ch. 123,? 1; Petriev. Rep , 289 weoster, id weeJily 
 
 Railroad Co., 29 S. C, 303 ; Bunyon v. ,„ „ , 
 
 Railroad Co., 19 D. C, 76 ; Cleveland "Holland v. Brown, 35 Fed. Rep., 43. 
 
 etc. Rd Co. V. Rowan, 66 Pa. St., 393 ;' ' Little Rock. etc. Rd. Co. v. Barber, 
 
 Pennsylvama Rd. Co. v James, 81 33 Ark., 350 
 
 Pa. St., 194; Augusta Factory v. , «. ^ 
 
 Davis, 87 Ga., 648; Murphy v. Rail- °'^- Louis, etc. R. R. Co. v. Sweet, 
 
 road Co., 88 N. Y., 445; Houghkirk ^^ ^""^ ' ^63. 
 
 V. Canal Co., 92 N. Y , 219, 44 Am. "Murray v. Usher, 117 N. Y., 542, 
 
 ^^P- ^'O- 23 N. E. Rep., 564. 
 
 'Murphy V. Railroad Co. 88 N Y 7 ta 14. t, •, 
 
 44-, ; Houghkirk v. Canal Co 92 n' ^ ?af^°'' "■ ^^ilroad Co., 4 C. B. N. 
 
 Y., 219. ■ °' ^^°- 
 
31 EXPENSES PAID AND INCURRED. §§ 23-24 
 
 § 23. Medical Expenses in Case of Death. In some 
 states the expenses for physician and for nursing 
 incurred during the period between the time of injury 
 and death of the injured person may be recovered as a 
 part of the damages against the party causing the injury.' 
 Such expenses are not recoverable unless there is proof 
 that the claim therefor had been filed against the estate 
 for allowance as required by law, and within the time 
 designated by the statute." After an action has been 
 brought for damages caused by the negligence of the 
 defendant, the plaintiff dies and an administrator is sub- 
 stituted, all expenses for nursing-, board, lodging, etc., 
 which are a proper charge against his estate, and which 
 the administrator is liable to pay, on account of such 
 injury, are recoverable.^ But in the states of Illinois and 
 Oregon expenses incurred for medical attendance, care, 
 nursing, etc., in order to effect a cure, in ease death 
 ensues, are not recoverable.* Nor are they recoverable 
 in New York in an action by an administrator,* but they 
 are recoverable by a parent. ° 
 
 Funeral expenses actually paid by the father in case of 
 death can be recovered in an action by him as adminis- 
 trator.' 
 
 § 24. Pleading. In an action to recover damages 
 for a personal injury, it is necessary for the plaintiff to 
 plead that he has paid or incurred expenses to alleviate 
 the suffering and to effect a cure. It is not necessary to 
 allege any particular sum that he has paid, or expects to 
 pay so long as he alleges that he was put to great expense 
 for care, nursing, physician, medicine and other neces- 
 
 1 Corliss V. Railroad Co., 63 N. H. 'Muldowney v. Railroad Co., 36 
 
 404, 21 A. & E. Rd. Cases 208 ; Pennsyl- Iowa, 463. 
 
 vania Railroad Co. v. James, 81 Pa iManey v. Railroad Co., 40 111. 
 
 St., 194; Bunyon v. Railroad Co 19 . jq^ Holland v. Brown, 35 Fed. 
 
 D. C, 76; Cumings v. Railroad Co, Rgp 43 
 
 109 N. Y,, 95; Pennsylvania Railroad /"•' ' 
 
 Co V Lilly, 73 Ind., 252; Mayhew v. ^Murray v. Usher, 11/ N. Y., 542. 
 
 Burns 103 Ind. 328, 2 N. E., 794 ; Davis But this decision was bas'. d upon the 
 
 V Railroad Co., 53 Ark., 117,7 L. R. A. act of 1847 of New York. 
 
 283 ; Augusta Factory v. Davis, 87 Ga , , cuniings v. Railroad Co., 109 N. 
 
 648; Rams v. Railroad Co., 71 Mo., ^ ^ ^^ S ^ ^^ 
 164. 
 
 2 St Louis etc. Railroad Co. v. 'Consolidated Traction Co. v. 
 
 Sweet, 63 Ark., 563. Hone, 35 Atl., 899. 
 
^ 25 EXPENSES PAID AND INCURRED. 32 
 
 sary expenditures required to be made on account 
 of such injury.^ 
 
 Expenses for nursing and medical attendance cannot be 
 recovered unless they are pleaded.^ 
 
 Exception. In Indiana it was held that the expenses 
 of medical attendance might be considered as an element 
 of damages in an action for personal injuries although not 
 specially pleaded, where plaintiff's hips were crushed and 
 his ribs were broken.^ 
 
 An allegation in a petition for personal injuries that 
 plaintiff has incurred liability for large sums to pro- 
 cure services of physicians and medicines and will in the 
 future be required to incur such expense, to her damage 
 in a certain amount, is too general.* 
 
 Under an allegation that plaintiff has "necessarily* 
 expended in doctor's bill " a stated sum, evidence is not 
 admissible to show the amountof liabilities he has incurred 
 for such bills, but has not paid/ 
 
 Under a general allegation of great expense for medi- 
 cines and medical attendance, the plaintiff may prove the 
 amount that he has paid for the same, not being limited 
 to the recovery of a nominal sum." 
 
 § 25. Special Expense. Any expenses naturally 
 though not necessarily resulting from the injury, and 
 which the defendant cannot be presumed to be aware of, 
 in order to prevent a surprise, must be J specially set 
 
 1 Texas & Pac. R. Co. v. Cornelius, To the same effect— Folson v. Under- 
 (Tex. Civ. App.) 30 S. W. Rep., 720 ; hill, 36 Vt, 580 ; Hopkins v. AO. & 
 Ohio & Miss. Railroad. Co. v. Judy, Railway Co., 36 N. H., 9 ; I^aing v 
 120 Ind., 397; Shepard v. Pratt, 16 Colder, 8 Pa. St., 479; Penn. etc Ca- 
 Kan., 209 ; Woodruff V. Cook, 25 Barb., nal Co. v. Graham, 63 Pa. St 290- 
 (N. Y.), 505; Houston &T. C. R. Co. v. Thompson, Nee., 1257, 2 Ror R r' 
 Stuart, 48 S.W., 799; 1 Sutherland on 1098. •> • • 
 Damages, 770 ; Atchison, T. & S. F. R. , „, 
 
 Co. V. Click (Tex. Civ. App.), 32 S. ^. . Omental v. Barclay, (Tex. 
 W. Rep., 226. Civ. App.) 41 S. W., 117, 
 
 2 P O * qt T T? ro ^ 7ir.r.^^i^ir, 1 ^ "^^^^^ ^ P^'^- ^"i- Co. V. Lee, 51 S. 
 
 Cirr.-Sett^ C^C^ 36THSlrStJ ' T,S SI ' ^^O^^A^^^^Ve^^^r "°- 
 
 St. Ry. Co. V. Richart, (Tex. Civ. App.) ' ' ^^^- ^^P- ^^^• 
 
 27 S. W., 920. '= Houston & T. C. R. Co. v. Stuart, 
 
 3o -1, o 'n rr T, ,, 48 S. W. Rep., 799; Kupferschmid 
 
 Evausville & T. H. R. Co. v. Hoi- v. Electric Railway Co., 74 Mo. App 
 
 comb, 9 Ind. App., 168, 36 N. E. 39 ; 438. ^P" 
 
33 EXPENSES PAID AND INCURRED. ^ 26-27 
 
 forth in the pleading, or the plaintifp will not be permitted 
 to give evidence of it in the trial/ 
 
 In an action for personal injuries the plaintiff cannot 
 recover expenses of hiring a substitute to fill his place 
 while he is incapacitated on account of his injuries, where 
 special damages of that character were not alleged/ 
 
 § 26. Employment of Servants. A person who, as 
 a result of an injury, is compelled to employ a servant to 
 do housework, is entitled to recover the expense of 
 keeping such servant, during the period of such employ- 
 ment/ 
 
 xA,ll expenses necessarily incurred by the plaintiff in 
 procuring competent help in his business, to do the work 
 which he would have done himself, had he not been 
 injured, may be recovered/ 
 
 § 27. Duty of Injured Person to Employ a Phy- 
 sician. Whenever a person receives an injury caused by 
 the negligence of another, lor which he may have a cause 
 of action against the wrongdoer, if the injuries be of a 
 serious nature, there is a duty resting upon him to do 
 everything within his power, that is reasonable, to allevi- 
 ate the suffering from, and check the progress of, the 
 injury, and to effect a cure ; to use all proper means to 
 restore himself from its effects ; and to employ a physi- 
 cian whenever necessary. He must not neglect himself, 
 nor do anything to prevent a speedy and full recovery, 
 nor to increase the effects of the injury. He must seek 
 the advice of a physician and exercise such ordinary care, 
 diligence and judgment as a reasonable person would 
 exercise under the same conditions, to prevent an 
 increase of the injury, or of any other sickness, or the 
 develoi>ment of any other disease. 
 
 1 Haszlacher v. Railroad Co. , 56 N. while he was confined in his bed on 
 
 Y. Supp., 380; South Covington, etc., account thereof. 
 
 St. Ry. Co. V. Ware, 84 Ky., 267; » Haszlacher v. Railroad Co., 56 N. 
 
 Treadwell v. Whittier, 80 Cal., 575, 13 Y. Supp., 380. 
 
 Am. St. Rep., 175; Hunter v. Stewart, ' Willis v. Traction Co., 189 Pa. St., 
 47 Me., 419. But in Fox v. Railroad 430, 42 Atl., 1. In this case the plain- 
 Co., 53 N. W., 259, 17 L. R. A., 289, it tiff was a music teacher earning $50 
 was held that under an allegation that per month, and on account of an in- 
 the plaintiff had " suff'ered great ex- jury she was unable to do her house- 
 pense " he could recover damages of work, and was obliged to employ a 
 $11 00 to the mattress, bedding and servant to do the same, 
 bedspring on account of the use of * North Chic. St. Ry. v. Zeiger, 78 
 carbolic acid to an injury to his foot. 111. App., 463. 
 
§ 27 EXPENSES PAID AND INCURRED. 34 
 
 This duty involves the exercise of such care as the 
 extent of the injury requires, and would be exercised by 
 persons of ordinary intelligence and prudence under like 
 circumstances. a It means the exercise of ordinary care/ 
 to prevent any greater effects from the injury than will 
 ordinarily or naturally follow therefrom. 
 
 If an injured person fails or neglects to use such care 
 and exercise such prudence as the character and severity 
 of the injury demands, and to adopt all proper means at 
 his command, and with reasonable dispatch, to effect a 
 cure and restoration, such failure or neglect constitutes 
 contributory negligence. The injured person assumes 
 the risks and consequences of such failure or neglect and 
 cannot hold the wrongdoer responsible therefor.^ He 
 can recover, however, the damages caused by the injury 
 without his fault or neglect, notwithstanding the fact that 
 his neglect to employ a physician may have aggravated 
 the result of the injury, for the reason that the negli- 
 gence of the defendant was the primary cause of the 
 injury.^ 
 
 Where an injured person disregarded the advice of his 
 medical attendants to abstain from business for two 
 years, and because of such disobedience became perma- 
 nently incapacitated from doing business, whereas if he 
 had rested, he would probably have regained his health, 
 the court refused to disturb a verdict for compensa- 
 tory damages.* 
 
 Question for Jury. It sometimes becomes a ques- 
 tion for the jury to say whether the plaintiff was negli- 
 gent in failing to consult or employ a physician sooner.* 
 A person injured by the negligence of another is not 
 unequahfledly bound to engage medical aid and attend- 
 
 1 n^ V°^'^ynn ^' ^*''- ^^- ^°- "■ F«lvey, Red. on Negligence, Sec. 35 ; Sherman 
 104 Ind. 409. V. Fall River Iron Wks. Co., 2 Allen, 
 
 419 ifi oV'fiSf '^ ■ ^ *^"'=- ^^''■' ^^^' "^"g^* ^•- Telegraph Co., 20 
 412 16 C. C , 630. ^ ^ „„ ^ Iowa, 195 ; Plummer v. Penobscot L. 
 
 390; Cre e City v Childs 11 Neb., mond, 48 Vt., 557; Citizens St. Ry. 
 
 ?^^= 'sSP'S^ ""■ Council Bluffs, 32 Co. v. Hobbs, 43 N. E 497 
 
 Iowa, 324, 7 Am. Rep., 200 ; Citizens ,„ , ^, ='. 
 
 St. Ry. Co. V. Hobbs, 43 N. E., 479- „ Saunders v. Railwav, 8 Q. B. N- 
 
 AUender v. Railroad Co., 37 lowk, 264' S-' ^^'^' ^^ ^- C L., 887. ' 
 
 Prenchv.Vining, 102Mass., J32. ' » Morrison v. Railroad Co 38 N 
 
 'Owens V. B. & Q. Rd. Co., 35 Fed. Y. Supp., 393 ' 
 Rep., 715, 1 L. R. A, 75; Shearm & 
 
35 
 
 EXPENSES PAID AND INCURRED. 
 
 27 
 
 ance for such length of time as his injuries require ; but 
 if a man of ordinary prudence would have engaged such 
 aid and attendance more promptly than did the injured 
 party, his delay in this regard may be taken into consid- 
 eration by the jury and compensation may be denied for 
 damages which might have been averted/ 
 
 Where death has been occasioned by negligence, the 
 administrator of the decedent cannot be precluded from 
 recovering, as a matter of law, because deceased rejected 
 the advice of his physician and refused to submit 
 his limb to amputation. The question of whether the 
 death was due to the rejection of such advice was prop- 
 erly submitted to the jury and answered by their ver- 
 dict in favor of the plaintiff.'^ 
 
 Employment Protects. The employment of a physi- 
 cian protects the injured person from any charge of neg- 
 lect on his part or against any defense of contributory 
 
 1 Vallo V. Express Co., 147 Pa. St., 
 404, 30 Am. St. Rep., 741. 
 
 2 Sullivan v. Railway Co., 112 N. Y , 
 643, 8 Am. St. Rep., 793. 
 
 In Louisville, N. A., etc., R. Co. v. 
 Falvey, 104 Ind., 409, 3 N. E., 397. 
 The Supreme Court approved the fol- 
 lowing charge : " It was the duty 
 of the plaintiff to use ordinary care, 
 judgment and diligence in securing 
 medical or surgical aid after she re- 
 ceived the injuries complained of, if 
 any she received ; and if you find 
 from the evidence that after she re- 
 ceived such injuries, if any she did 
 receive, she failed to use such ordi- 
 nary care, judgment and diligence in 
 procuring timely medical and surgi- 
 cal aid, and if you further find from 
 the evidence that by reason of such 
 failure her condition is now different 
 and worse than it would have been if 
 she had used such ordinary care, judg- 
 ment and diligence in the premises, 
 then if you find for the plaintiff, you 
 would take this into account in mak- 
 ing up your verdict, and should not 
 allow her any damages for ailments 
 and diseases if any that may have re- 
 sulted from such failure," saying : 
 "This instruction expresses the law 
 correctly;" and also approving the 
 following instruction : " And so, too, 
 it was the duty of the plaintiff to use 
 ordinary care to cure and restore her- 
 
 self; and if you find from the evi- 
 dence that the plaintiff failed to use 
 such ordinary care in the premises, 
 but that she unnecessarily exposed 
 herself in inclement weather or 
 otherwise after receiving her injuries, 
 if any she received in said accident, 
 and thereby increased and aggravated 
 such injuries, and enhanced their evil 
 effects, you will take these facts into 
 account in arriving at your verdict — 
 if you find for plaintiff — and should 
 not allow any damages to plaintiff 
 for any ailments, injuries, diseases, or 
 other aggravation from which plain- 
 tiff has been or may be suffering by 
 reason of such exposure, and from 
 which she would not otherwise be 
 suffering," saying: " We regard this 
 instruction as unusually cfear and 
 forcible, and we are satisfied that it 
 states correctly the law. A plaintiff 
 is not bound to use extraordinary 
 care to prevent an injury from devel- 
 oping into evil consequences but is 
 bound to use ordinary care and dili- 
 igence. It is true that in some cases 
 ordinary care will require a high de- 
 gree of care, for care must always be 
 proportionate to the danger in order 
 to be even ordinary care, but there is 
 no requirement that in any case more 
 shall be done than a person of ordi- 
 nary prudence would do under like 
 circumstances." 
 
27 
 
 EXPENSES PAID AND INCURRED. 
 
 36 
 
 negligence, even if such physician fails to apply the 
 most approved methods and to use the best remedies 
 known to the profession. Notwithstanding the injured 
 person sufPers to a greater extent and the damages are 
 increased by such employment, beyond what they would 
 have been if he had employed a more competent physi- 
 cian, still the wrongdoer is responsible for all the conse- 
 quences of such injury.' 
 
 While a person who is injured should use ordinary and 
 reasonable care to prevent an aggravation of his injury, 
 he is not required to take "proper and immediate steps " 
 to have his condition improved in order to recover there- 
 for/ 
 
 ilvoeser v. Humphrey, 41 Ohio St., 
 378, where the Supreme Court says : 
 "It seems to be well settled that 
 where one is injured by the negli- 
 gence of another, if his damage has 
 not been increased by his own subse ■ 
 quent want of ordinary care, he will 
 be entitled to recover of the wrong- 
 dofer to the full extent of the damage, 
 although the physician whom he em- 
 ployed omitted to apply the remedy 
 most approved in similar cases, and 
 by reason thereof the damage of the 
 injured party was not diminished as 
 it otherwise would have been." 
 Heintz v. Caldwell, 9 Circ. Dec, 412, 
 16 C. C, 630, where it is held, that in- 
 creased sufferings resulting from the 
 failure of a physician to apply the 
 best or most approved treatment or 
 remedies is a proper element of dam- 
 age in action against an owner of 
 dogs for injuries sustained from their 
 bites, where the injured person used 
 ordinary care in the choice of such 
 physician. See Terre Haute & I. R. 
 Co., V Buck, 96 Ind., 346, 49 Am. Rep., 
 168 ; Louisville, N. A & C. R. Co. v. 
 Falvey, 104 Ind., 411 ; Reed v. Detroit, 
 108 Mich., 224, 65 N. W. 967 : Pullman 
 Palace Car Co v. Bluhn, 109 111., 20, 50 
 Am. Rep., 601 ; Rice v. Des Moines, 40 
 Iowa 638; Stover v. Bluehill, 51 Me., 
 439 ; Tuttle v. Farmington, 58 N. H., 
 3 3 ; Boyntou v. Summersworth, 58 N. 
 H., 321 ; Lyons v. Railroad Co., 57 N. 
 Y., 489; Collins v. Council Bluffs, 32 
 Iowa, 324, 7 Am. Rep., 200 ; AUenden v. 
 Railroad Co., 37 Iowa, 264; Alexander 
 V. Railroad Co , 112 N. C ,720, 16 S. 
 E. Rep.. 896; Schmidt v. Mitchell, 84 
 
 III., 195, 25 Am. Rep., 446 ; Page v. 
 Bucksport, 64 Me, 51, 17 Am. Rep.,- 
 239 ; Klutts v. Railroad Co., 75 Mo., 
 642 ; Nagel v. Railway Co., 75 Mo., 653 ; 
 Sauter v.' Railroad Co., 66 N. Y., 
 50, 23 Am. Rep., 18 ; Selleck v. Jones- 
 Ville, 75 N. W., 975, 41 L. R. A., 563; 
 Lawton v. Railroad Co., 29 Conn. 390. 
 spullerton v. Fordyce, 44 S. W. 
 Rep., 1053; McGarrahan v. Railroad 
 Co., 50 N. E. Rep., 616; Reed v. 
 Detroit, 108 Mich., 224, 65 N. W., 967. 
 Good Faith. In Loeser v. Hum- 
 phrey, 41 Ohio St , 378, the court 
 uses this language, on p. 382 : "There 
 can be no dispute but that Humphrey 
 acted in good faith, showed due dili- 
 gence, and used reasonable means to 
 effect his cure and restoration. He 
 employed a physician ' of good stand- 
 ing and reputation.' It was not in- 
 cumbent upon him to incur the 
 greatest expense, and call in the most 
 eminent physician and surgeon of 
 the highest professional skill, and 
 most infallible judgment before he 
 could hold the defendants answerable 
 for the condition in which he was left 
 at the end of his medical treatment. 
 Having exercised ordinary care and 
 reasonable judgment in selecting a 
 physician lie was not required, as 
 said by the court in Stover v. Bluehill 
 51 Me., 439, to insure not only the 
 surgeon's professional skill, but also 
 his immunity from accident, mistake 
 or error in judgment, in order to re- 
 cover ot the original wrongdoer 
 damages arising from no fault on his 
 part and from causes beyond his 
 power to control. " In Collins v. 
 
37 
 
 EXPENSES PAID AND INCURRED. 
 
 27 
 
 ^Aliere Physician is Injured. The rule as to the 
 degree of care to be exercised by the plaintiff when he 
 has been injured through the negligence of the defendant 
 
 Council BlufiFs, 32 Iowa, 324, 7 Am. 
 Rep., 200, the court puts this proposi- 
 tion in the lollowinj^ language : " All 
 that the law required of the plaintiff 
 was the . xercise oi her judgment and 
 the care which men of ordinary pru- 
 dence, under like circumstances, 
 would exercise in the choice of phy- 
 sicians, and the means used to effect 
 her recovery. She was not required 
 to employ the best surgical skill and 
 the means best adapted to heal her 
 injuries. These may not have been 
 within her reach. And while she 
 may have prudence and reason, even 
 in the highest degree possessed by 
 men who are unlearned in medicine 
 and surgery, she still may have been 
 unable to choose the best means for 
 her recovery. But she was required 
 to exercise only the judgment and 
 care which men and women in her 
 condition are ordinarily capable of 
 exercising." In Pullman Palace Car 
 Co. V. Bluhn, 109 111., 20, it was said 
 that the appellee when injured was 
 bound to use ordinary care to render 
 the injury no greater than necessary. 
 It was therefore his duty to employ 
 such physicians and nurses as ordi- 
 nary prudence in his situation re- 
 quired, and to use ordinary care and 
 judgment in so doing, and to select 
 only such as were of at least ordinary 
 skill and care in their profession. 
 But the law does not make him an in- 
 surer in such case that such surgeons 
 or doctors, or nurses will be guilty of 
 no negligence, error in judgment, or 
 want of care. The injury resulting 
 from such mistakes is properly re- 
 garded as a part of the immediate 
 and direct damages, and the wrong- 
 doer will be held responsible there- 
 for. 
 
 In Lyons v. E. Railroad Co., 57 
 N. Y., 489, an action was brought to 
 recover damages for a personal 
 injury sustained by the defendant's 
 negligence. The defendant gave 
 evidence tending to show the exer- 
 cise taken by the plaintiff might have 
 tended to retard recovery and that 
 quiet would have been better. The 
 plaintiff then offered evidence to show 
 
 that he was advised by his physican 
 that it was right and beneficial to 
 exercise. The court said : " He is 
 bound to use ordinary care to cure 
 and restore himself. He cannot 
 recklessly enhance his injury and 
 charge it to another. If his arm be 
 broken, he cannot omit to have it 
 set and charge the loss of the arm 
 to the wrongdoer. He is not obliged 
 to employ the most skilful physican 
 that can be found or resort to the 
 greatest expense to ward off the con- 
 sequences of an injury which another 
 has inflicted upon him. He is bound 
 to act in good faith and to resort to 
 such means and adopt such methods 
 reasonably within his reach as will 
 make his damSge as small as he can. 
 But suppose that he makes a mistake 
 and innocently eats or exercises so 
 as to retard his cure or impair his 
 chances of recovery ; or suppose that 
 he employs a physician who makes a 
 mistake in his treatment, so that he 
 is not as well or as soon restored as 
 he otherwise would have been ; who 
 is responsible for the mistake? Can 
 the wrongdoer, who has placed him 
 in the position where he must take 
 the choice of remedies and doctors, 
 take advantage of such mistake ? 
 Can he shield himself from all the 
 consequences of the wrong because 
 the injured man has not adopted the 
 best means and employed the best 
 doctors ? I think not. A wrong- 
 doer breaks an arm; the injury is 
 then done and the arm for the time 
 is destroyed. He cannot complain 
 that the injured person has failed to 
 restore it so long as he has acted in 
 good faith in its treatment, using the 
 ordinary means within his reach. 
 In this case, the plaintiff acting in 
 good faith, consulted a competent 
 physician, who advised him to take 
 exercise. Even if this advice was 
 mistaken, it shielded him against the 
 charge that he recklessly, wilfully or 
 carelessly exposed his health or 
 retarded his recovery. To illustrate 
 further, suppose that a competent 
 physican had rightfully advised him 
 that he must get out and take ex- 
 
g 27 EXPENSES PAID AND INCURRED. 38 
 
 to employ a physican and to use ordinary care to effect 
 a cure and restoration, is not changed by the fact that he 
 is himself a physican.^ 
 
 Operation. Where a person sustains an injury by a 
 fall upon a defective sidewalk which produces a hernia, a 
 recovery for damages is not affected by the fact that he 
 made a mistake in not immediately undergoing an opera- 
 tion, as advised by a physican, if his conduct was that of 
 a reasonably "prudent man.^ 
 
 Whether an operation will be a benefit, or not, will save 
 or prolong life, is a matter that can not be determined 
 in advance. The advice of a phyician, however expe- 
 rienced and skillful, is the result of his diagnosis of the 
 injury and of his judgment. At the best it is his conclu- 
 sion as to what is the best thing to be done, and it is al- 
 ways to be supposed that it is his best judgment, based 
 upon experience and knowledge. But he has no rule or 
 formulse by which to determine in advance, with accu- 
 racy and certainty, what the outcome of the operation will 
 be. So much depends upon physical conditions and men- 
 tal temperament of the injured person, that no physician, 
 in a doubtful or serious case, can foretell whether the 
 operation will prove successful or change the apprehended 
 result of the injury. Death may follow soon, or the in- 
 jury may become permanent in its effects. An operation 
 may save or prolong life, or improve the chances against 
 becoming an in valid or a cripple for life. The patient 
 takes his chances and considers it with its probabilities. 
 Nature in many instances may be able to assert itself and 
 become the master; health may be regained; strength 
 may return, and the usefulness of the arm or leg may be 
 restored without an operation. ' 'It appears therefore that 
 surgery is not an exact science, and even in its present 
 advanced stage, there is defective knowledge of anatomy; 
 
 ercise, and that he had persistently gate the damage which the defend- 
 
 and wilfully remained in his house, ant did occasion." 
 
 and had thus aggravated his injuries, SeeSellick v. Jouesville, 41 L. R. A.,- 
 
 and postponed or retarded his re- 563, 75 N. W. Rep., 975 ■ Reed v 
 
 covery. Could not the defendant Detroit, 108 Mich., 224, 65 N W 
 
 have shown these facts as hearing Rep., 967 ; Boynton v. Somersworth 
 
 upon the extent of its liability ? We 58 N. H., 321; Bardwell v. Jamaica, 
 
 must therefore hold that the advice 14Vt.,438. 
 
 given was competent, not to cast , „ . 
 
 upon the defendant any damage „ o?/"^ ""^ ^- Somervyorth, 58 N. 
 
 which it did not occasion, but to • 
 
 show that the plaintifiF acted in good = Williams v. Brooklyn 53 N Y 
 
 faith and used proper care to miti- Supp., 1007. 
 
39 EXPENSES PAID AND INCURRED. ?§ 28-29 
 
 and misjudgment. It certainly cannot be said as a mat- 
 ter of law, that a patient may not, without imputation of 
 negligence, trust to natural results without the complica- 
 tion of scientific experiments." And where this question 
 has been properly submitted to a jury, whether the in- 
 jured man exercised ordinary care and reasonable pru- 
 dence and good judgment in the premises, there can be 
 no cause for complaint or criticism, if they so find. ^ ' 
 
 In any event the refusal to submit to an operation can 
 only be a matter of mitigation of damages and not a com- 
 plete defense to the action. 
 
 § 28. Non-Employment of Physician. An injured per- 
 son who, from the circumstances, may reasonably believe 
 that the injury is of a character that rest alone will afford 
 a speedy recovery, is not required to incur the expense of 
 nursing and medical attendance, as a condition to recover 
 adequate damages against the wrongdoer.^ 
 
 When the injured person at first suffers no great pain, 
 and there are no indications from which to apprehend 
 serious results or consequences, or to require the imme- 
 diate need of a physician, and such injured person hon- 
 estly believes that he will not suffer any serious effects, 
 but may soon recover therefrom, he is not negligent in 
 failing to send for a physician as soon as he receives the 
 injury.' 
 
 Sometimes it may be inconvenient for the injured per- 
 son to send for a physician, or he may live at a great 
 distance from one, and where he uses and applies what 
 simple remedies he has at his command to relieve the 
 pain and suffering, it becomes a question for the jury 
 whether a delay for a short time in failing to send for and 
 consult a physician, was negligence under all the circum- 
 stances.* 
 
 § 29. Expenses. Malpractice. In an action to recover 
 damages for malpractice, the general rule is that ex- 
 penses paid and incurred cannot be recovered unless it 
 is shown on the trial by competent evidence that it 
 was necessary to incur such expenses to effect a cure, 
 and that they were reasonable.^ 
 
 1 Sullivan v. Railroad Co., 112 N. * Morrison v. Railroad Co., 38 N. 
 y., 643, 8 Am. St. Rep , 793. Y. Supp., 393. ^ o^ xt i, -tqj 
 
 2 Kennedy v. BussefeO 111., App., 440. » Hewitt v. Eisenbart, 36 Neb. 794 
 'Tex & P Ry. Co. V. Neal, (Tex. 55 N. W. Rep., 252; Becker v. Jan- 
 Civ App.) 33 S. W. Rep., 693. inski, 15 N. Y. Supp., 675. 
 
30 
 
 DAMAGES FOR I/OSS OF TIME. 
 
 40 
 
 CHAPTER IV. 
 
 t>AMAGES FOR LOSS OF TIME, 
 
 Sec 
 
 ;. 
 
 Sec. 
 
 30. 
 
 Loss of Time Recoverable. 
 
 37. 
 
 Profits of Business. 
 
 31. 
 
 Test of the Value of Time- Lost. 
 
 38. 
 
 Married Women. 
 
 32. 
 
 Loss of Time Caused by Illness. 
 
 39. 
 
 Opinion Evidence of Value of 
 
 33. 
 
 Time Lost by Husband or Parent. 
 
 
 Time Lost Inadmissible. 
 
 34. 
 
 Persons on a Salary. 
 
 40. 
 
 Mitigation of Damages. 
 
 35. 
 
 Average Earnings. 
 
 41. 
 
 Double Remedy. 
 
 36. 
 
 Proof of Value of Time Lost. 
 
 4i 
 
 Pleading. 
 
 
 LOSS O 
 
 F TIME. 
 
 § 30. Loss of Time Recoverable. The value of the 
 time lost by an injured person in his occupation, busi- 
 ness, trade or profession, on account of any injury re- 
 ceived by him through the negligence of another, is an" 
 element of damages to be considered, and for which he is 
 entitled to recover. Whenever a person receives a phy- 
 sical injury, if it be of a serious nature, his inability to 
 labor, attend to his business or follow his profession, or 
 perform the duties thereof, which he had been perform- 
 ing, for a time, according to its severity, is one of the 
 natural results thereof. It is necessary for such injured 
 person to do all he reasonably can to effect a cure and to 
 restore himself. To do so, he must lose more or less 
 time according to the extent and nature of the injury. 
 In all cases where the injury is such as to require time 
 to recover and to be cured from its effects, reasonable 
 time must be given for that purpose. In the majority of 
 injuries absolute rest for a time is necessary, and cessa- 
 tion from labor or work is as essential as the services of 
 a physician to set a broken limb, or a nurse to watch 
 fever. The injured person is required to exercise ordi- 
 nary care and to use reasonable means to recover from 
 the injury. This duty is imposed upon every injured 
 person, and with it the obligation to refrain from labor or 
 professional duties, according to the nature of the in- 
 jury. Thus, for all time which a person may lose by rea- 
 son of an injury hp is entitled to be indemnified. 
 
41 
 
 DAMAGES FOR LOSS OF TIME. 
 
 30 
 
 The injured person in an action for damages for a per- 
 sonal injury, in order to recover for time lost, is required 
 to establish two facts, viz. : 
 
 Fii'st. The amount of time lost by him, and 
 
 Second. What was that time reasonably worth to him? 
 
 The value of the time lost mean s loss of wages, loss of ear n- 
 ings,or loss of business, which the injured person would 
 have otherwise earned or been worth to his business.' 
 
 In Totten v. Railroad Co., 11 Fed. Rep., 564, the court 
 said : "Loss of wages where he is a laboring man, and 
 loss of business where he is engaged in business," 
 caused by the negligence of the defendant are recover- 
 able. In Harris v. Railroad Co., 13 Fed. Rep., 591, it was 
 
 ' Wade V. Leroy, 20 How. U. S., 34 ; 
 Totten V. Railroad Co., 11 Fed. Rep., 
 564; Harris V. Railway Co.,13Fed.Rep., 
 591 ; Crew v. Railway Co., 20 Fed. Rep., 
 87 ; Vicksburg & Merideu Rd. Co. v. 
 Putnam, 118 U.S., 554 ; Larmon v. Dist. 
 of Columbia, 5 Mackay, 330 ; David- 
 son V. Railway Co., 44 Fed. Rep., 476; 
 Illinois Central Rd. Co. v. Davidson, 
 76 Fed. Rep., hVl ; Holmes v. Halde, 
 74 Me., 28 ; 43 Am. Rep., 567 ; Nones 
 V. Northhouse, 46 Vt., 587; Morgan 
 V. Curley, 142 Mass., 107; Hill v. Win- 
 sor, 118 Mass., 251 ; New Jersey Ex- 
 press Co. V. Nichols, 32 N. J. L., 166 ; 
 Fteney v. Railway Co., 116 N. Y., 375, 
 5 L. R. A., 544; RockweU v. Rail- 
 wav Co., 53 N. Y., 625 ; Masterton v. 
 Mt. Vernon, 58 N. Y., 391 ; Lincoln v. 
 Railway Co., 23 Md.^ 425 ; Hamilton 
 V. Railroad Co., 53 N. Y., 25 ; Wil- 
 liams v. Vanderbilt, 28 N. Y., 217, 84 
 Am. Dec, 333 ; Mclntyre v. Railroad 
 Co., 37 N. Y., 287; Walker v. Rail-, 
 road Co., 63 Barb., 260; Ehrgott v. 
 Mayor, 9G N. Y., 264, 46 Am. Rep., 
 622 ; L. S. & M. S. Ry. Co. v. Franz, 
 127 Pa. St., 297, 4 L. R. A., 389; Penn- 
 sylvania Rd. Co. V. Books, 57 Pa. St., 
 239 ; Pennsylvania Rd. Co. v. Graham, 
 63 Pa. St., 290 ; Owens v. Railway Co., 
 155 Pa. St., 334; Parsons v. Harper, 16 
 Gratt. (Va.j, 64; Beck v. Thompson, 
 31 W. Va., 459, 13 Am. St. Rep., 870; 
 Ford v. Charles Warner Co. (Del), 37 
 Atl. Rep., 39 ; Robinson v. Simpson, 
 8 Houst.,398, (Del.), 32 Atl. Rep., 287, 
 South, etc. Alabama R. Co. v. McLen- 
 don, 63 Ala., 266; Richmond, etc., R. 
 Co. V. Farmer, 97 Ala., 141 ; C. H. & 
 D. Ry. Co. V. Boyer, 10 O. C. D., 199; 
 
 Bailey v. City of Cincinnati, 1 Handy, 
 438; Toledo Electric St. Ry. Co. v. 
 Tucker, 7 O. C. D., 169, 13 O, C. C. 411 ; 
 Pittsburg & L. E. R. Co. v. Blair, 5 O. 
 Circ. Dec. , 366, 11 O. C. C, 579 ; Toledo 
 Consolidated St. Ry. Co. v. Rohner, 6 
 O. C. D., 706, 9 O. C. C. R., 702; 
 Houston, etc. Rd. Co. v. Boehn, 57 
 Tex., 15 ; Gulf, etc. R. Co. v. Brown 
 (Tex. Civ. App.), 40 S. W. Rep., 608; 
 Galveston, etc. R. Co. v. Waldo, (Tex. 
 Civ. App.), 32 S. W. Rep. 783; Hous- 
 ton E. & W. T. Ry. Co. v. Hartnett, 
 48 S. W. Rep., 773 ; Huizega v. Cutler 
 & Savidge L. Co., 51 Mich., 272; 
 Joslin V. Grand Rapids Ice Co., 53 
 Mich., 322 ; Sherwood v. Railroad Co., 
 82 Mich., 374, 46 N. W. Rep., 773; In- 
 dianapolis V. Gaston, 58 Ind., 225; 
 Cleveland, C. & I. Rd. Co. v. Newell, 
 104 Ind., 264, 3 N. E. R., 836 ; Chicago 
 V. G'Brennan, 65 111., 160; Peoria 
 Bridge Ass. v, Loomis, 20 111., 236, 71 
 Am Dec, 263 ; Illinois Centr. Rd. Co. 
 V. Cole, 62 111. App., 480; Consolida- 
 ted Coal Co. V. Haenni, 146 111, 614 ; La 
 Salle V. Porterfield,138 111., 114; West 
 Chic St. Ry. Co. v. Foster, 175 111., 
 396, 51 N. E. R., 690; Mills v. Railway 
 Co., 40 Atl. Rep,, 1114, 1 Marv. (Del.), 
 269 ; Turner v. Railroad Co., 15 Wash., 
 213; Posch v. Railroad Co., 76 Mo. 
 App., 601 ; Riper v. Bittell, 30 Wis., 
 614; Stutz v. Railway Co., 73 Wis., 
 147, 9 Am St. Rep., 769 note ; Hed- 
 dles V. Railway Co., 77 Wis., 228, 20 
 Am. St. Rep., 114 ; Kleigel v. Aitken, 
 94 Wis., 432 ; Phillips v. Railroad Co., 
 42 L. T. R. (N. S.), 6; City of Toledo 
 V. Higgins, 7 O. Circ. De:C., 29, 12 O. 
 C. C, 646. 
 
30 
 
 DAMAGES FOR lyOSS OF TIME. 
 
 42 
 
 held that the plaintiff could recover "loss of time and loss 
 of wages which has resulted from the injury. In V icks- 
 burff & Meriden Rd. Co., 118 U. S., 554, the court said: 
 "A fair recompense for the loss of what he would have 
 earn'^d in his trade or profession, and has been deprived 
 of the capacity of earning by the wrongful act of the 
 defendant" should be awarded. In Huizega v. Outler 
 and Savidge Lumber Co., 51 Mich., 275, the plaintiff was 
 permitted to prove the inability to labor while sick, the 
 amount of time he lost, and what that time was worth 
 to him. The court said : "If the plaintiff was entitled 
 to recover that of which he had been deprived as the 
 direct and natural consequence of the injury complained 
 of, his inability to labor was one of the first of those con- 
 sequences.'" 
 
 1 In Phillips V. Railroad Co., 42 L. T. 
 Rep. (N. S.) 6, a leading English au- 
 thority, Lord Coleridge, after stating 
 to the jury that there was no answer 
 to the prima facie case of negligence, 
 said : " It is therefore really and 
 truly a mere question of assessment 
 of damages. What under the cir- 
 cumstances it is fair and reasonable 
 the defendants should pay to the 
 plaintiff by way of compensation for 
 the injuries he has sustained. '" * 
 * It must be made up of several in- 
 gredients. ® * * Now, one of these 
 is pain and suffering. * * * Then 
 there is the loss at any rate for two 
 years of his business. Now what is 
 that business ? He then directed the 
 attention of the jury to the evidence 
 as to the plaintiff's professional in- 
 come. That during the three years 
 before the accident his net earnings 
 after deducting all the expenses in- 
 curred in carrying on his profession 
 had been about 5000/. a year. He 
 then said: " There is no doubt from 
 the time of the accident to this be 
 has not earned a shilling and /or that, 
 some very considerable compensa- 
 tion should be awarded by the com- 
 pany." The jury returned a verdict 
 of $80,000.00 which was affirmed by 
 the appellate court. In Holmes v. 
 Halde, 74 Me., 28, an action was 
 brought to recover damages for per- 
 sonal injuries caused by the defend- 
 ant's negligence. The plaintiff was 
 a physician and claimed damages, for 
 
 loss of business. Justice Libbey said : 
 "If by the injuries received, the 
 plaintiff was deprived of the capac- 
 ity to perform his ordinary labor or 
 attend to his ordinary business, the 
 loss sustained thereby is an element 
 ot damages. The true test is what 
 his services might be worth to him in 
 his ordinary employment or business." 
 In Davidson v. Railway Co., 44 Fed. 
 Rep., at p. 481, the court instructed 
 the jury: "The plaintiff, if your 
 finding be in his favor, should be 
 fairly and justly compensated for the 
 injuries he has sustained. In mak- 
 ing your estimate of such damages 
 you are authorized to consider * * 
 * the value of the time lost by 
 him during the period in which he 
 was disabled from his injuries to 
 work and labor, taking into consid- 
 eration the nature of his business, 
 and the value of his services in con- 
 ducting the same." In Carples v. 
 Railroad Co., 44 N. Y Supp. 670, 2 
 Am. Neg Rep. 426, where it appeared 
 that the plaintiff was compelled to 
 remain away from his business for 
 the period of six weeks, because of 
 his injuries, it was held that he was 
 entitled to show, loss of earnings on 
 account of such absence. In Village 
 of Chatsworth v. Rowe, 116, 111. 114, 
 it was held admissible for the plain- 
 tiff to show " what'her business was, 
 what she was earning and what her 
 labor was worth." 
 
43 DAMAGES FOR LOSS OF TIME. § gl 
 
 The fact that the plaintiff suffered from epileptic fits 
 would not preclude him from recovering damages for 
 loss of time and labor, but the question whether he did 
 ■or did not sustain any damage is one for the jury. ' 
 
 Distinction. Loss of time, it has been said, is more 
 properly defined as a loss which has accrued at the time 
 of trial; loss of time to accrue in the future is more 
 aptly termed, "diminished earning capacity." ' 
 
 Diminished capacity to follow any business, occupation, 
 trade or profession is a distinct element of damages and 
 is discussed elsewhere.' 
 
 § 31. Test of the Valne of Time Lost. In an action 
 to recover damages for a personal injury, it has been 
 argued in a Massachusetts case, that the true measure is 
 the market value of the time lost according to the 
 average wages of a person of the capacity of the plaintiff 
 working in the same employment.* But the true test is the 
 valueof the timeof the injured person including the value 
 of the experience of such person to his business or pro- 
 fession.^ 
 
 The market value of the average wages of a person in 
 a certain employment may be fair and proper, but it is 
 . not conclusive. It resolves itself down to the question 
 of the value of the time of each individual person who 
 may receive an injury, on account of which he has lost 
 time in his business or profession. If there is any dis- 
 tinction in the value of men's time, and there certainly is 
 a difference, there is no reason why the whole actual 
 damage should not be recognized." 
 
 To this extent the wrongdoer assumes the risk of the 
 value of what he destroys.' The value of the services of 
 a wife are not limited to the value of her services in the 
 
 1 Gulf W. T. & P. Ry. Co. v. Holz- diet was not inconsistent and af- 
 .ieuser, 45 8. W. Rep., 188. firmed it. 
 
 2 Houston City St. Ry. Co. v. Reich- * Braithwaite v. Hall, 168 Mass., 38. 
 art, 87 Tex., 539, 29 S. W. Rep., 1040. * Braithwaite v. Hall, supra ; Mat- 
 
 ^ Post,C^. 7. In Mo. Pac. Ry. Co. V. teson v. Railroad Co., 35 N. Y., 493. 
 
 Johnson, (Kan.) 53 Pac. Rep., 129, the « Matteson v. Railroad Co., 35 N. Y., 
 
 jury were asked to answer special 493, 91 Am. sec. 67; Braithwaite v. Hull, 
 
 questions and the answers show that iupra. 
 
 they allowed for loss of time in the ' Murdock v. Despatch Ex. Co., 167 
 
 past. 152,500; for permanent injury, Mass., 549; Lake Shore &M. S. Ry. Co. 
 
 $6,500, and nothing on any other ac- v. Frantz, 127 Pa. St., 297, 308, 4 L. R. 
 
 count. The court held that the ver- A , 389. 
 
Jg 32-33 DAMAGES FOR LOSS OF TIME. 44 
 
 household, but may include the value of her services as 
 the manager of the business of her husband/ 
 
 It is the impairment of the capacity of the injured 
 pci'son to work or practice his profession which f ui-nishes 
 the basis for damages. It may be more or it may be less, 
 according to the ability, knowledge and experience of 
 such person in his business or profession. What that 
 may be is a question for the jury under the evidence.^ 
 
 § 32. Loss of Time Caused by Illness. When a 
 person exposes his servant to any contagious disease in 
 connection with his employment, by reason of which the 
 servant contracts a disease and becomes sick, such 
 servant may maintain an action for damages against such 
 master for so negligently exposing him, and may recover 
 for any time lost on account of such illness.' 
 
 Where physicians testify that the injuries of the plain- 
 tiff are permanent, and that if she were sick from other 
 causes the injuries would cause serious complications, it 
 is proper to submit to the jury the question of plaintiff's 
 liability to suffer more from other illnesses than she 
 would have otherwise suffered.* 
 
 But when a person is suffering from a disease and 
 receives an injury, and the disease so develops that it 
 necessarily disables him from working for a certain 
 period prior to his death, produced by the disease, and 
 the action for damages is prosecuted in the name of a 
 personal representative, no recovery can be had for 
 Joss of wages, if such loss of wages was not the result of 
 the injury.^ 
 
 § 33. Time .Lost Iby Husband or Parent. ^ Where a 
 married woman receives an injury for which an action 
 lies, the husband may recover, as one of the elements of 
 damages, for time lost by him in attendance upon and 
 nursing his wife." 
 
 In Pullman Palace Car Co. v. Smith, supra, it appeared 
 that he was a professor in a normal school at a salary of 
 
 1 Citizens St. Ry., Co. v. Twiname, Kan., 411, 43 Pac. Rep., 638. Cleye 
 121 Ind., 375, 7 L. R. A., 352. land & P. R. Co. v. Sutherland, 19 
 
 2 Harmon v.Railroad Co., 168 Mass., O. St., 151, 156. 
 
 377, 30 L. R. A., 658. « Pullman Palace Car Co. v. Smith, 
 
 ' Kleigel v. Aitken, 94 Wis., 432, 35 79 Tex., 468, 23 Am. St. Rep., 356; 
 
 L.R. A.,249. Salidav. McKinna, 16 Colo., 523, 27 
 
 * Crank v. Railway Co., 53 Hun., Pac. Rep., 810 ; Hazard Powder Co. v. 
 425, 6 N. Y. Supp., 229. Volger, 58 Fed. Rep., 152. 
 
 * Atchison, etc., Rd. Co. v. Rowe, 56 
 
45 DAMAGES FOR LOSS OF TIME. 
 
 33 
 
 $150 per month and lost three weeks in necessary attend- 
 ance upon his wife. The court held that he was entitled 
 to recover for such loss of time. But the weight of 
 authority is that damages which a man may recover for 
 nursing his wife and doing her work while she is suffer- 
 ing from injuries caused by the negligence of another are 
 the value of the services of a competent servant to per- 
 form the same duties, and not the amount of wages which 
 he might have earned by working at his trade.' 
 
 The husband cannot recover for the loss of his own 
 time in nursing his wife, and for wages of his wife dur- 
 ing the same period.^ 
 
 The same rule, as to the value of the time of the hus- 
 band for nursing his wife, applies toa parent who may lose 
 time in nursing his child, while suffering and sick from 
 an injury received through the negligence of a wrong- 
 doer.' 
 
 In the case of Bridges v. Railroad Co., 27 S. Car., 456, 
 the father asked for a recovery of the value of his own 
 services as a nurse to his son and his earnings as agent 
 of a publishing company. The court held that he could 
 not recover the latter for the reason that they were spec- 
 ulative and uncertain, but approved the ruling of the 
 trial court that the father could have recovered for con- 
 tract monthly wages which had been lost, if any. In 
 Barnes v. Keene, 132 N. Y. 13, an action was 
 brought by the father to recover expenses incurred and 
 loss of time in nursing his infant daughter, who was 
 injured through the negligence of the defendant. The 
 father was permitted to prove in the trial court that his 
 occupation was that of a theatrical manager, at which he 
 earned .$50. ()0 per week, which he gave up during the time 
 he was nursing his daughter. He recovered damages 
 for the loss of his time while so nursing. The Court Of 
 
 ' Hazard Powder Co. v. Volger, 56 The appellate court held that the 
 
 Fed. Rep., 152; Salida v. McKinna, utmost he could recover was $3.50 
 
 16 Colo, 523, 27 Pac. Rep., 810; per day for six months less $20.00 
 
 Barnes v. Keene, 132 N. Y., 13 , 29 N. per month, the value of the wife's 
 
 E. Rep., 1090. service or services of one to do her 
 
 ^ Hazard Powder Co. v. Volger, 56 work. 
 
 Fed. Rep., 162. In the trial court he ' Barnes v. Keene, 183 N. Y., 13, 29 
 
 was permitted to recover $3.50 per N. E. Rep., 1090 ; I^utcher & Moore 
 
 day for six months, that being the Lumber Co. v. Dyson, 30 S. W. Rep., 
 
 sum which he earned as a carpenter. 61 ; Bridger v. Railroad Co., 27 S. Car., 
 
 The evidence showed that his wife's 456, 13 Am. St. Rep., 653. 
 services were worth $20.00 per month. 
 
? 34 DAMAGES FOR LOSS OF TIME. 4ft 
 
 Appeals said : "While the plaintiff was entitled to recover 
 the value of his services as a nurse he was not entitled 
 to recover, in addition thereto, what he might have made 
 if he had not abandoned his business engagement. He 
 could not recover for services rendered during a speci- 
 fied period, and for loss of time during the same period. 
 He was entitled to have his pecuniary loss, necessarily 
 caused by the accident, made good to him. This included 
 the services of a nurse as long as a nurse was needed, 
 and if a plaintiff saw fit to act in that capacity, he was 
 entitled to the value of his services ; but if he abandoned 
 a more lucrative occupation in order to acfc as nurse, the 
 value of his services while engaged in that occupation 
 could not be properly considered by the jury in estimat- 
 ing the value of his services while acting as a nurse. 
 His services as a nurse were worth no more because he 
 was able, in some other calling, to earn a large income," 
 
 The contra doctrine is held by the Supreme Court of 
 Louisiana, in Black v. Railroad Co., 10 La. Ann., 33, 63 Am. 
 Dec, 586, where a father was allowed to recover for his 
 time for nursing his infant son and for the loss to him 
 through the neglect of his business for the period of two 
 and a half months during his son's illness. 
 
 Tt may be seriously questioned whether this principle 
 is sound. It is against the weight of authority, and 
 against good common sense. There may be now and then 
 a case of such peculiar circumstances surrounding it, 
 that the services of a parent may be necessary to nUrse 
 his infant child for a specified time at a great loss to him 
 in a financial way. Such cases are, however, the excep- 
 tion, and the exception does not establish a rule wh^ch 
 should be followed in the practice of the law, 
 
 § 34. Persons on a Salary. It is competent for the 
 plaintiff in an action for damages resulting from personal 
 injuries, to show that he was earning a stated salary, 
 when injured, and that because of such injuries he was 
 deprived of his situation and lost his salary for three 
 months. This evidence is admissible not only to show 
 the actual loss of the salary for that period, as a basis 
 tor coniputmg m part his damages, but also to throw light 
 generally upon his capacity to earn money, ^ 
 
 1 Brogles v. Prisock, 97 Ga., 643, 25 41 Barb. (N. Y.). 381. 
 S. B. Rep., 389; Grant v. Brooklyn, ' 
 
47 DAMAGES FOR LOSS OF TIME. ? 34 
 
 The amount of wages lost by any person on account 
 of a personal injury is nut recoverable as wages, but as 
 fixing a measure of the value of time and ability to earn 
 money/ 
 
 The salary, which the injured person was receiving at 
 the time of the injury, is not conclusive that his services 
 were worth no more. It is, however, an important fact 
 that he accepted a salarj-, at that price, and may be con- 
 sidered persuasive evidence that he considered the price 
 a fair one.' 
 
 Such salary may generally be regarded as the best 
 measure of the value of the injured person during the 
 period, that he was unable to perform any work or attend 
 to his business, in City of Bloomington v. Chamberlainj 
 104 111., 268, on the trial against the objection of the 
 defendant the court permitted the plaintiff to testify that 
 she had taught school at fifty dollars per month. The 
 court said : ' ' We think it was admissible under the aver- 
 ments of the declaration " fthat she was hindered in the 
 transaction of her business) " to show what was the busi- 
 ness of the plaintiff, and that she had been disabled from 
 pursuing it by reason of her injuries. The testimony 
 objected to tended to no more than this and to give the 
 jury some idea of the wages of school teaching." In fix- 
 ing the value of the time lost by the decedent from the 
 time of his injury until he died, it is proper for the jury 
 to consider his age, occupation, and the wages which he 
 had earned in the past in the sphere in w'hich he was 
 employed.' 
 
 In Grant ^. City of Brooklyn, 41 Barb., 385, the court, 
 in relation to an action for damages for a personal injury 
 resulting in a loss of services, says : " 1 see no evidence 
 so unobjectionable and so reliable, as that which shows how 
 much the party was earning from his business, or real- 
 ized from fixed wages, at the time to which the loss 
 refers." * 
 
 iBraithwaite v. Hall, 168 Mass., 38. which he has been deprived, not as 
 
 In this case the court said : " Where themselves recoverable eo nomine." 
 
 a man is allowed to prove his average « Goodhart v. Railroad Co., 177 Pa. 
 
 earnings or wages actually lost by St., 1, 35 Atl. Rep., 191. 
 
 him, they are proved as the measure ' Atchison, etc. R. Co. v. Chance, 57 
 
 of the time and power to labor, of Kan., 40. „„ . , „ „o-, 
 
 * Bagley v. Masoil, 37 Atl. Rep., 287. 
 
§ 35 DAMAGES FOR LOSS OP TIME. 48 
 
 Mitigation. If the injured person, during the period 
 that he is disabled from earning wages, continues to 
 receive his salary, it is held that he cannot recover for 
 loss of time. If the salary which he was paid during his 
 disability is the full amount of the wages which he was 
 receiving before the injury, it would not be right for him 
 to recover damages for loss of time, for the reason that 
 he has already been paid the damages which he sus- 
 tained in that respect.^ 
 
 In Drinkwater v. Dinsmore, 80 N. Y., 390, the court 
 says : " Before the plaintiff could recover for the loss of 
 wages, he was bound to show that he lost the wages in 
 consequence of the injuries, and how much they were. 
 The defendant had the right to show that he lost no 
 wages or that they were not as much as claimed. He 
 had the right to show, if he could, that for some particular 
 reason the plaintiff would not have earned any wages if, 
 he had not been injured, or that he was under such a 
 contract with his employer that his wages went on with- 
 out service, or that his employer paid his wages from 
 mere benevolence." 
 
 Wages Paid. Tliird Party. The failure of the em- 
 ployer of the injured person to deduct his salary during 
 the time that he was unable to work, would not mitigate the 
 damages to which he was entitled, in an action agaipst 
 a third party.^ 
 
 § 35. Average Earnings. Where the injured person 
 prior to the injury had not received any fixed salary or 
 amount for his services, the average of his earnings for 
 a certain period before the injury may be considered by 
 the jury in making up their verdict.' 
 
 lEphland v. Railroad Co., 57 Mo. etc., Rd. Co. v. Coyle, 65 Pa. St., 396; 
 
 App., 147 ; Lee V. Telegraph Co., 51 Kessler v.Butler, 53 N. Y., 612. 
 
 Mo.App,375; Montgomery, etc., Rd. In Murdock v. Despatch Co., 167 
 
 Co. V. Mallette, 92 Ala., 209; Drink- Mass., 549, the court said- "The 
 
 water v. Dmsmore, 80 N. Y., 390, 36 plaintifF was allowed to testify to his 
 
 Am. Rep., 624. average monthly earnings. We are of 
 
 -'Ohio, etc.. Railroad Co. v. Dicker- opinion that the evidence was admis- 
 
 son 59 Ind., 317. sible. * * a A part of the imme- 
 
 , -^-l^^ama G. S. R. Co. v. Frazier, 93 diate danger in all such cases is that 
 Ala 45, 30 Am. St. Rep., 28; Mur- the plaintiflF is prevented from work- 
 dock v. Despatch Co., 167 Mass., 549; ing. To ascertain the economic 
 Mclntyre v. Railroad Co., 37 N. Y., value of what he was deprived of, 
 4?- i , „oix''^^y Express Co. v. there seems to be no better help than 
 Nichols, 32 N. J. L., 166; Hanover, to take his average earnings in the 
 
49 
 
 DAMAGES FOR LOSS OF TIME. 
 
 36 
 
 ^ 36. Proof of Value of Time Lost. In order to 
 recover damages for lost time it is necessary to prove the 
 value of such time to the injured person. Such value 
 niust be estabhshed by competent evidence. The value 
 of the time lost must be shown, or facts must be given 
 upon which an estimate of such value can be founded 
 Where the injured person has received a salary, or is able 
 to show his average earnings for a period some time prior 
 to the accident, the best measure of the value of such 
 time is the wages which he was receiving. In other 
 words, proof of his salary or of his average earnings 
 would afford the best means for the jury to estimate what 
 he had lost, when there bad been evidence offered in eonnec- 
 
 past, subject perhaps to the cautions 
 to be found in the English cases," 
 citing Phillips v. Railway, Iv.R., 4Q. 
 B. D., 406, 408; Armsworthv. South- 
 eastern Railway, 11 Jur., 758, 760, ad 
 fin ; Ehrgott v. Mayor, 96 N. Y., 264, 
 275, 276 ; New Jersey Express Co. v. 
 Nichols. 4 Vroom, 434, 437 ; Pennsyl- 
 vania Railroad Co. v. Dale, 76 Pa. St., 
 47 ; Welch v. Ware, 32 Mich,, 77, 81 ; 
 Parshall v. Railway Co., 35 Fed., 649, 
 651 ; McNamara v. Clintonville, 62 
 Wis., 207, 210 ; Collins v. Dodge, 37 
 Minn.. 503. 
 
 In Symons v. Street Ry. Co., 58 N. 
 Y. Supp., 327, an action was brought 
 to recover damages for injuries for a 
 violent and brutal attack upon the 
 plaintiflF by an employe of the defend- 
 ant. The only substantial question 
 in dispute related to the admission of 
 evidence at the trial as to plaintiff's 
 earnings during the years 1895, 1896 
 and 1897. There was evidence as to 
 the condition in life of the plaintiff 
 and as to his business. Plaintiff was 
 a commercial agent for a wholesale 
 house. He missed his fall trip in 
 1896, on account of the injuries re- 
 ceived, and suffered pain from his in- 
 juries for about one year. The court 
 said : " Upon the whole, a proper 
 foundation was laid for the intro- 
 duction of the evidence, as to the 
 earnings referred to, and such evi- 
 dence was properly admitted under 
 the decision of the court of appeals 
 in Ehrgott v. City of New York, 96 
 N. Y., 264. True, the decision was 
 made with reference to average earn- 
 ings before the injury, but upon the 
 4 
 
 same principle evidence is admissible 
 as to average earnings for a reason- 
 ably subsequent period." 
 
 In Ehrgott v. Mayor, 96 N. Y., 264, 
 the action was to recover damages 
 sustained, and it appeared that the 
 plaintiff was a canvasser for a book 
 publishing house, receiving for his 
 services a certain percentage on the 
 sales made by him, and that he was 
 disabled by his injuries from pursu- 
 ing his business. It was held no error 
 for the plaintiff to testify to the 
 amount of his annual earnings for 
 six or seven years prior to the acci- 
 dent. The court said : "The plain- 
 tiff had the right to recover for his 
 bodily sufferings and for his pecuni- 
 ary loss, caused by his inability to 
 work or to follow his usual vocation. 
 It would be quite difficult, if not im- 
 possible, to place be/ore the jury the 
 extent of the pecuniary loss, unless 
 the plaintiff in such a case could 
 show how much he had been earning 
 and was capable of earning, in his 
 usual vocation. In the case of a 
 lawyer, if informed merely of the 
 number of days he worked in a year, 
 or of the number of clients that he 
 had, or of the number of cases he 
 tried and argued ; and in the case of 
 a physician or dentist, if informed 
 merely of the number of his patients, 
 a jury would get a very inadequate 
 idea of his earnings. It is certainly 
 much better in such cases to place 
 before the jury the amount earned by 
 the person in his profession during a 
 series of years Ijefore the injury. 
 That may be uncertain, and yet the 
 
? 3f* 
 
 DAMAGES FOR LOSS OF TIME. 
 
 50 
 
 tion therewith as to the length of time which he had been 
 disabled or prevented from earning wages. But loss of 
 earnings, when the injured person was engaged in a busi- 
 ness, or the loss of business, sustained by reason of the 
 inability of such injured person to give attention to his 
 business, must be shown by such evidence as will enable 
 the jury to determine what his loss of business, or loss 
 of earnings, have been. The nature, and extent of the 
 business must be shown. The necessity of the attention 
 and relation of the injured person to it, and the value of 
 such attention and time to such business, should be proved ; 
 and such other facts and circumstances in connection 
 
 proof will furnish to the jury the 
 best possible basis to estimate the 
 pecuniary loss. So here, the plain- 
 tiff's income was not from capital 
 invested, but solely from his personal 
 skill and services, and his earnings 
 for six or seven years showed what 
 his services were worth to himself, 
 and what he was capable of earning, 
 and thus gave to the jury a basis from 
 which to estimate his pecuniary loss. 
 It would have aided the jury but very 
 little to place before them the nature 
 of his business and the number of 
 volumes of the cyclopedia sold. The 
 question was how much did he earn, 
 and how much was he capable of earn- 
 ing ; and proof which would furnish 
 answers to those questions would 
 enable the jury to determine how 
 much he had lost from his inability 
 to continue his vocation." 
 
 In Parshall v. Railway Co. , 35 Fedv 
 Rep., 649, it is held, in an action 
 against a railroad company for per- 
 sonal injuries, under a petition alleg- 
 ing that the plaintiff is a minister, 
 engaged in other avocations at differ- 
 ent times, and was prevented by such 
 injury from performing his avoca- 
 tions, evidence of the amount of the 
 salary plaintiff had received thereto- 
 fore is material to the amount of the 
 recovery. 
 
 In Phillips V. Railway Co. , L,. R. 4 Q. B 
 D., 406, 408, on the question of the loss 
 of time. Lord Coleridge charged the 
 jury as follows : " Then there is the 
 loss at any rate for two years of bis 
 business. Now, what is that busi- 
 ness?" He then directed the jury to 
 the evidence as to the plaintiff's (who 
 was a physician) professional income, 
 
 the effect of which was to show that 
 during the three years before the 
 pccident, his net earnings, alter 
 deducting all the expenses incurred 
 in carrying on his profession, had 
 been about five thousand pounds a 
 year. He then proceeded : "But then 
 it is said that is too much, because 
 some of these are large payments, 
 which have come from nine clients, 
 and in the nature of things it is not 
 likely that these things will occur. 
 This 1300/ from one person in three 
 5-ears, that 400/ from another in two 
 years, 360/ from another in two years, 
 and nearly 500/ from another in three, 
 all these and other sums are not 
 likely to recur. Now I do not see at 
 all why the confidence of the gentle- 
 men who make these large payments 
 shall be diminished, or their gener- 
 osity either; and I do not quite see 
 why in the class of patients this 
 gentleman had, people who send a 
 1,000/ and 500/ and so on (5,000/ in 
 one case) to their doctor without in- 
 quiry to pay for the number of visits 
 that had been had, I do not see why 
 the same gentleman should not pay 
 the 5,000/ over again ; it is a lucky 
 thing if Dr. Phillips should recover, 
 that his practice is among patients 
 who do not care about money. * * * 
 I really do not see why these should 
 be the only nine people in the world 
 who do these things, and who will 
 continue to do them, and why. if they 
 cease to do so, they should not be 
 succeeded by others equally as gener- 
 ous; but you must give it such 
 weight as you think fit." See city of 
 Galesburg v. Hall, 45 111. App., 290. 
 
51 
 
 DAMAGES FOR LOSS OF TIME. 
 
 § 36 
 
 a cor- 
 
 with his business, as will enable the jury to form 
 rectestimate and value of his time thereto. 
 
 If there is no proof showing the value of the time lost 
 b3^ such injured person, or the loss of business sustained, 
 only nominal damages can be awarded or allowed there- 
 for, if anything is claimed/ 
 
 The amount of recovery for loss of time is dependent 
 upon how much the injured person was earning, or what 
 he was worth to his trade, business or profession, at the 
 tinie of the injury, including the length of time he was 
 under disability. It means the value of his time lost 
 How this may be shown depends upon the nature of the 
 business and the relation which the injured person sus- 
 tained to it, and the necessity and value of his personal 
 attention to such business, trade, or profession. = 
 
 1 Staal V. Railway Co., 107 N. Y., 625, 
 13 N. E. Rep., 624 ; International & 
 G. N. R. Co. V. Shimrock, 81 Tex., 
 503; Britton v. St. Ry. Co., 90 Mich., 
 153, 51 N. W. Rep., 276 ; Leeds v. Gas 
 Light Co., 90 N. Y., 26. 
 
 In Leeds v. Metropolitan Gas Light 
 Co., the court said: "The rule of 
 recovery is compensation. Where the 
 loss is pecuniary and is present and 
 actual and can be measured, but no 
 evidence is given showing its extent, 
 or from which it can be inferred, the 
 jury can allow nominal damages only. 
 Sedgwick on Damages, Ch. 2, p. 47 ; 
 Brantingham v. Fay, 1 Johns. Cas., 264 ; 
 N. Y. Dry Dock Co. v. Mcintosh, 5 
 Hill, 2^0. In the present case the jury 
 knew simply that time was lost by 
 reason of incapacity to labor. They 
 were bound to consider it of some 
 value, but could not go beyond nom- 
 inal damages, and give compensa- 
 tion for it upon an arbitrary stand- 
 ard of their own. This they were 
 permitted to do without proof of the 
 extent or character of the plaintiff's 
 pecuniary loss, and they were left to 
 fix it as they pleased. Among the 
 elements of damage in cases of injury 
 for negligence, is the cost of the cure, 
 the bills and expenses of medical at- 
 tendance. Suppose that the bare fact 
 was shown that the deceased had a 
 doctor, but the length of his attend- 
 ance was not given, the amount of his 
 charges uot shown, would it do to 
 permit the jury to give compensation 
 
 for the cost of the cure upon their 
 own guess or speculation as to its 
 amount. » »■ ». Where actual pe- 
 cuniary damages are sought, some 
 evidence must be given showing their 
 existence and extent. If that is not 
 done, the jury cannot indulge in an 
 arbitrary estimate of their own." 
 
 2 Corts v. District of Columbia, 7 
 Mackey, 227; Prindle v. Campbell, 7 
 Mackey, 598; Larmon v. District of 
 Columbia, 5 Mackey, 330 ; Wood- 
 bury V. District of Columbia, 5 
 Mackev, 127; Wade v. Leroy, 20 How. 
 (U. S.), 34 ; Davidson v. South Pac. Ry. 
 Co., 44 Fed. Rep., 476 ; Masterton v. 
 Mt. Vernon, 58 N. Y., 391 ; Ehrgott v. 
 Mayor, 96 N. Y., 264; Mclntyre v. 
 Railroad Co., 37 N. Y., 287 ; Staal v. 
 Grand St. & N. Ry. Co., 107 N. Y., 
 625, 13 N. B. Rep., 624 ; Wynne v. 
 Railroad Co., 14 N. Y. Misc., 394; Lin- 
 coln V. Railroad Co., 23 Wend., 425; 
 Nash V. Sharpe, 19 Hun. (N. Y.), 366; 
 Wood V. Watertown, 58 Hun. (N. Y.), 
 298 ; Walker v. Railway Co., 63 Barb. 
 (N. Y.), 260; Klein v. Railroad Co., 
 
 54 N. Y. Super. Ct., 164 ; New Jersey 
 Express Co. v. Nichols, 32 N. J. L., 
 166 ; Hanover, etc. Rd. Co. v. Coyle, 
 
 55 Pa. St.. 396; Leger v. Warren, 62 
 Ohio St., 500 ; Joslin v. Grand Rapids 
 Ice Co., 53 Mich., 322; Silsby v. 
 Michigan Car Co.. 95 Mich., 204 ; Kin- 
 nev v. Crocker. 18 Wis.', 74; Bierbach 
 v. Goodyear Rubber Co., 54 Wis., 208, 
 41 Am. Rep., 19; O'Brien v, Loomis, 
 43 Mo. App., 29 I Klutts v. Railroad 
 
i 36 DAMAGES FOR LOSS OF TIME. 52 
 
 General Rule. The plaintiff has the right to prove 
 the business in which he is engaged, its extent, and the 
 particular part transacted by him, and if he can do so, ■ 
 compensation usually paid to persons doing such business 
 for others. These circumstances the jury have a right 
 to consider in fixing the value of the time of the plaintiff.^ 
 
 Evidence of the nature and extent of the busi- 
 ness is admissible to go to the jury, not to furnish a 
 measure of damages, but to guide them in the exercise of 
 that discretion as to the amount of damages which to a 
 certain degree is vested in a jury in every personal injury 
 case.'' 
 
 An extensive and lucrative professional business is a 
 fact to be considered, and early manhood is of special 
 value in making up the estimate.^ 
 
 Attoi'iiey. It is proper for an attorney to show his 
 annual earnings for five years prior to his injury, to form 
 a basis upon which the jury may determine the value of 
 the time lost by him.* But evidence in general of the 
 value of the time of practicing attorneys is not admissi- 
 ble. The proper measure of damages is to be determined 
 by reference to the earnings of the attorney before and 
 after the injury." 
 
 Mechanic. In an action to recover damages to plain- 
 tiff and to his traction engine which went through a de- 
 fective bridge, on account of the negligence of the defend- 
 ant, it was held proper for the plaintiff to show that he 
 had work for his engine for many days ahead at the time 
 of the injury, as bearing upon the question of damages." 
 
 Trade. The extent of the recovery for loss of time 
 where the plaintiff was obliged to close his shop, would 
 be what his services were worth in the conduct of such 
 
 ^°p' l^,^° ■ ^3}^ ^^ ^ \'^^- Ca^««. ' See Grand Rapids & I. R. Co v 
 
 V. Thornsberry, 17 S. W., 521; Alabama * Nash v. Sliarpe, 19 Hun. (N Y ) 
 
 39l.^iLrsXoSrr 'Said .:^^-^- -^^^-' -°- ^^ ^-^•. 
 
53 DAMAGES FOR LOSS OF TIME. 
 
 3ft 
 
 a business as he was engaged in.' Where the damages 
 are for loss of services, there is no evidence so unobjec- 
 tionable and satisfactory as that which shows how much 
 the party was earning from his business or receiving from 
 fixed wages during a certain period prior to the injury.* 
 
 The plaintiff may testify how much money he made 
 prior to the injury from work at his trade.'* 
 
 The plaintiff may recover the value of his time and 
 services about his business necessarily lost by reason of 
 such injuries.* 
 
 It is proper for the plaintiff to prove the amount of 
 time lost, and what his time was worth to him.'' Evi- 
 dence of the amount the plaintiff was earning at the time 
 of and immediately preceding his injury is admissible 
 upon the question of the value of time lost." 
 
 Teacher. Where the plaintiff was a teacher by pro- 
 fession, it was held admissible on the trial to give in evi- 
 dence, the number of pupils in his school, and his earn- 
 ing-s therefrom for a period of four years preceding the 
 time of injury.' Evidence of the amount of the plain- 
 tiff's salary as a teacher, and the number of weeks that 
 he lost by reason of the necessity of his nursing his wif e- 
 on account of an injury received by her, is proper in an 
 action for damages, where he expressly claims loss of 
 time as an element of damage.' 
 
 A school teacher may testify what wages are gener- 
 ally paid for school teaching, when it appears that the 
 loss of the plaintiff, who had sustained an injury 
 through a defective sidewalk, was not greater than the 
 wages usually paid." 
 
 Carpenter. Where a carpenter was injured and lost 
 time thereby, evidence as to his earnings in his trade is 
 admissible in proof of the damages sustained." 
 
 iSilsby V. Mich. Car Co., 95 Mich., 'Simonin v. Railroad Co., 36 Hun. 
 
 204. (N. Y.), 214. 
 
 ^Grant V.Brooklyn, 41 Barb. (N. Y.), spullman Palace Car Co. v. Smith, 
 
 381 79 Tex., 4fi8, 13 L. R. A., 215. 
 
 ' kessel V. Butler, 53 N. Y., 612. = City of Bloomington v. Chamber- 
 
 *CityofRiponv. Bittel,30Wis.,6l4. lain, 104 111., 268. „„ „ ,„ 
 
 SHuizeea v. Cutler & Savidge L. w Christie v. Railway Co., 39 S. W 
 
 Co., 51 Mich., 272. Rep., 638, 2 Am. Neg. Rep., 260. 
 'Beisiegel v. N. Y. Centr. R. Co., 40 
 
 N. Y., 9. 
 
g 36 DAMAGES FOR LOSS OF TIME. 54 
 
 Farmer. Where a farmer was injured it is permissi- 
 ble for him to show the value of his annual servieesj as a 
 farmer by giving the facts as to his living expenses.^ 
 
 Paper Hanger and Decorator. Where the plaintiff 
 was unlawfully arrested and detained in custody for a 
 period of five days, it was held that he could recover for 
 liis services per day what they were reasonably worth.^ 
 
 Peddler. Where a peddler received an injury, it was 
 lield admissible to give evidence of the annual amount of 
 sales made by him, and what profits he made, as a basis 
 to show the amount of money he might have earned if 
 he had been able to attend to his business.' Where it 
 appears that the plaintiff supported himself and family 
 by earnings as a peddler, the jury may award reasonable 
 damages for the loss of such earnings, though no actual 
 sum was fixed by the plaintiff.* 
 
 Brakesman. Where the plaintiff had been and was a 
 brakesman when he received an injury, he may show 
 what he was making at the time of the injury, and had 
 been earning for a considerable period prior thereto, for 
 the purpose of enabling the jury to determine the value 
 of the time lost by him.^ 
 
 Business. Where the injured person was engaged in 
 business, he may show the kind and nature of his busi- 
 ness and its extent, or where, as such business man, he 
 had received a fixed compensation for his services or his 
 earnings it can be shown with reasonable certainty, the 
 proof is competent." 
 
 The plaintiff has the right to prove the business in 
 which he was engaged, its extent, and the particular part 
 transacted by him, and, if he could, the compensation usu- 
 ally paid to persons doing such business for others.' 
 
 It has been said that where the plaintiff is engaged in 
 such a business that the value of time lost from it cannot 
 be well ascertained by reason of the non-existence of any 
 rules by which to measure it, the jury from all the facts 
 
 ^Ark. Mid. Ry. Co. v. Griffith, 63 ^ Alabama & G. S. Rd. Co. v. Prazier, 
 
 Ark., 491, 89 S, W. Rep., 550. 93 Ala., 45, 30 Am. St. Rep., 28 
 
 2 Leger v. Warren, 62 Ohio St., 500. « Lincoln v. Railroad Co., 23 Wend., 
 
 Hanover Rd. Co. v. Coyle, 55 Pa. 425 ; Mclntyre v. Railroad Co., 37 
 
 •St., 396. N. Y., 287. 
 
 'Femstein v. Jacobs, 37 N. Y. Supp., ' Masterton v. Mt. Vernon, 58 N. Y., 
 
 ■345- 391,396. 
 
55 DAMAGES FOR LOSS OF TIME. ^ 36 
 
 before them, may in their discretion award him an 
 amount sufficient as reasonable compensation for the 
 time lost.^ 
 
 A part of the immediate damage in all cases is that the 
 plamtiflF IS prevented from working. To ascertain the 
 economic value of what he is deprived of, there seems to 
 be no better help than to take his average earnings in the 
 
 Salesman. In a New York ease the plaintiff was a 
 book canvasser, and received a percentage on all sales 
 made in a certain territory for his services. He was 
 permitted to show what his earnings had been for five or 
 six years prior to his injury. The court said : "It is 
 much better to place before the jury the amount earned 
 in his profession, during a ^^eries of years before the 
 injury. That amount may vary in the past and looking 
 to the future must be uncertain, yet the proof will fur- 
 nish to the jurj^ the best possible basi s to estimate the 
 pecuniary loss. So here the plaintiff's income was not 
 from capital invested, but solely from his personal skill 
 and services; and his earnings for six or seven years 
 showed what his services were worth to himself, and 
 what he was capable of earning. The question was how 
 much did he earn, and how much was he capable of earn- 
 ing, and proof which would furnish answer to these ques- 
 tions would enable the jury to determine how much he 
 had lost from his inability to continue his vocation.'" 
 
 Minister. The plaintiff who was a minister engaged 
 in other avocations at different times, was prevented by 
 an injury from performing his avocations, evidence of the 
 amount of salary, he had received is material to the 
 amount of recovery, and the court may refer to it in his 
 charge.* 
 
 Expense of Employes. Where the plaintiff, a butcher, 
 was incapacitated from attending to his business by rea- 
 son of injuries which he had received through the negli- 
 gence of the defendant and was obliged to employ two 
 men to do the work which he had himself done prior to 
 
 iMo. K. & T. Rd. Co. V. Vance, 41 ^ Ehrgott v. Mayor, 96 N. Y., 264. 
 
 S. W. Rep., 167. *Parshall v. Railway Co., 35 Fed. 
 
 ' Murdock v. Express Co., 167 Mass., Rep., 649. 
 549, 1 Am. Neg. Rep., 263. 
 
§ 37 DAMAGES FOR LOSS OF TIME. 56 
 
 the injury. It was held that the amount paid for such 
 purpose was properly admissible in evidence.^ 
 
 Architect. It is proper for an architect to testify 
 what the average annual profits in his business have 
 been, to show his damages for loss of time, occasioned by 
 a personal injury to him.'' 
 
 § 37. Profits of Business. , The profit of a business 
 mean the net income or receipts derived therefrom after 
 payment of the concurrent expenses necessary to carry 
 on the same. The question has often been raised whether 
 an injured person may, in an action of tort, recover for 
 the value of his time, the loss of the profits which was 
 sustained by him in his business, trade or profession, on 
 account of his inability to give as much time to it as he 
 would have given had he not been injured, during the 
 period of his incapacity. The answer to the question 
 depends upon the^m*^ and natv/re of the business or trade 
 in which the injured person was engaged. If the party 
 is engaged in a purely commercial business where capital 
 and services are required to operate it, then he cannot 
 recover for the profits which may have been lost in his 
 business by reason of his incapacity to attend to it,^ But 
 he may prove what the value of his services was worth 
 in the business in which he was engaged.* 
 
 What the profits may have been, can be only by proof of 
 the past profits, but the past profits of a commercial busi- 
 ness furnish no criterion upon which to determine what 
 the future profits may be. The reason of this rule is 
 that these profits depend upon too many conditions and 
 contingencies, and are altogether too uncertain to be any 
 safe guide in fixing the amount of damages. The jury 
 ought not to be permitted to speculate as to the uncer- 
 tain profits of commercial ventures.'^ 
 
 It is too difficult to undertake to say or to ascertain how 
 much of the profits of a business are due to the services 
 and skill of an injured person, when such profits depend 
 
 1 Gumb V. Railroad Co., 58 N. Y. * Silsby v. Michigan Car Co., 95 
 Sup. Ct, 559. Mich., 204; Winter v. Railroad Co., 
 
 2 New Jersey Express Co. v. Nichols, 74 Iowa, 448, 38 N. W., 154. 
 
 32 N. J. L., 166. 5 Masterton v. Mt. Vernon, 58 N. Y., 
 
 'Silsby V. Michigan Car Co., 95 391. 
 Mich., 204; Masterton v. Mt. Vernon, 
 58 N. Y., 391. 
 
57 DAMAGES FOR LOSS OF TIME. ? 37 
 
 upon the contingencies of trade and commerce, pros- 
 perity or adversity of the times, or like circumstances. 
 
 The plaintiff- cannot show that the profits of his busi- 
 ness were greater than ordinary because he did the work 
 of three men in such business/ 
 
 A person may prove that he is engaged in a certain 
 business and its extent, but he cannot prove the past pro- 
 fits of his business in order to show what the future mav 
 be.= 
 
 The profits of a business of which the plaintiff was the 
 manager cannot be shown as a measure of his earning 
 powers, before the injury." An estimate by the plaintiff 
 of the annual value of his labor based on the business of 
 a steam thresher which he had sold before he was injured, 
 with an intention to resume it, the earnings of which 
 were divided with his partners in proportions not stated, 
 is too uncertain and conjectural to prove his damages for 
 a personal injury.* But this doctrine must be restricted 
 to the profits which a person had earned or would earn in 
 a business dependent upon the patronage of the public. 
 
 Speculative Profits. Speculative profits and profits 
 on invested capital are not recoverable as damages result- ' 
 ing from the inability of the injured person to transact 
 his ordinary business, by reason of a personal injury 
 which he had received.' 
 
 An allowance of profits can not be had upon the pur- 
 chase of goods and merchandise.^ Nor upon the manu- 
 facture and sale of patent articles.' 
 
 Prospective Profits which might have resulted from 
 a catch of fish had not the net of the plaintiff been 
 destroyed by the negligence of the defendant, cannot be 
 allowed as damages, for the reason that from the charac- 
 ter and conditions of the business, the jury could have 
 no sufficient basis upon which to ascertain the profits, 
 and any assessment thereof must rest largely upon con- 
 jecture.' 
 
 iPueblov. Griffin, 10 Colo., 366; 15 » Chicago, etc., Railroad Co. v. 
 
 Pac. Rep., 616. Posten, 53 Pac. Rep., 465. 
 
 ^Lincolnv. Railroad Co., 23 Wend.; « Johnson v. Railway Co., 4 N. Y. 
 
 425. Supp., 848. 
 
 'Goodhart v. Railroad Co., 177 Pa. ' Bierbach v. Goodyear Rubber Co., 
 
 St.. 1 ; 35 Atl. Rep., 191. 54 Wis , 208. 
 
 < Boston & Albany Railroad Co. v. » bright v. Mulvaney, 78 Wis., 89, 
 
 O'Reilly, 158 U. S., 334. 23 Am. St. Rep., 393. 
 
I 37 DAMAGES FOR LOSS OF TIME. 58 
 
 Prospective damages which cannot be definitely ascer- 
 tained are not recoverable in actions of tort/ 
 
 Proflts. When Recoverable. The profits of a busi- 
 ness, trade or profession for a series of years are admis- 
 sible to show the value of the time lost by the injured 
 person, when such profits are the result of the personal 
 skill and services of such person, independent of any 
 connection with capital or with the fluctuations and 
 uncertainty of trade and commerce, or manufacture. 
 There is a clear distinction between the class of profits 
 which depends upon future sales in commercial enter- 
 prises, and profits made on sales where the amount on 
 each sale is certain and fixed, or where the amount of 
 profits depend upon the energy, skill, knowledge and 
 experience of a person. In one, the profits depend upon 
 the capital invested. In the other, the profit is a per- 
 centage and depends upon the personal skill and labor, 
 and in the third the profit is what the person's services, 
 depending alike on skill and labor, are worth to himself.* 
 
 The question in the last two classes of cases is, how 
 much does he earn and how much is he able to or capable 
 of earning? What he is earning at the time of the injury 
 and has been earning for several years prior thereto, are 
 the profits of his energy, skill, and labor, and are the 
 best proof of the loss which has been sustained. They 
 do not relate to profits of an uncertain trade or manufac- 
 ture, but show what the person was earning at the time of 
 the injury.'' 
 
 Where a traveling salesman received, as compensation, 
 a certain salary, his railroad expenses, and a certain per- 
 centage of the amount of his sales, such percentage is 
 not profits in the sense of that word, as used in the deci- 
 sions, discussing the right to recover profits as such for 
 breach of contract ; and in an action for damages sus- 
 tained from personal injuiies, the injured person may 
 recover such percentage, and in order to lay the founda- 
 
 ^r'^rZ^il^Z""^ Z- Kitnberly, 26 W. Joslin v. Grand Rapids Ice Co, 53 
 
 Va 787,57 Am. Rep., 121. Mich., 32-;! ; Sias v. Reed City, 103 
 
 3S^^^^" "■ ^^y"''- ^^ ^'^ ^■' 276. Mich , 312, 61 N. W., 502; Grant v. 
 
 T T -.i',,^^,?''"^ ^°-J- Nichols, 32 N. Brooklvn, 41 Barb., 381 ; Murdock v. 
 
 J. L., 166; Hanover R.R. Co. v.Coyle, N. Y. & B. U. Ex. Co 167 Mass 
 
 55 Pa. St. 396 ; Pullman Palace Car 549, 1 Am. Neg. Rep., 263 • Welch v.' 
 
 Co. V. Smith, 79 Tex., 468, 13 L. R. Ware, 32 Mich , 77 
 A., 215; Nash v. Sharpe, 19 Hun., 365; 
 
■59 DAMAGES FOR LOSS OF TIME. 
 
 39 
 
 tion for such recovery, may show the extent and amount 
 of his ordinary business/ 
 
 There is a class of cases where the injured person may 
 recover damages for loss of profits to his business, 
 where the injury complained was the unlawful interfer- 
 ence with, or destruction of the business, by an unlaw- 
 ful trespass upon the lands or premises of the injured 
 person. One of the leading authorities upon this ques- 
 tion is a Michigan ease.^ 
 
 §38. Married Women. A married woman cannot re- 
 cover for the value of the time lost by her on account of a 
 personal injury, when she lives with her husband and is 
 not engaged in any business for herself, for the reason 
 that her time or services belong to her husband.' 
 
 But the husband may recover for the value of the time 
 lost by the wife on account of such injury.' 
 
 If the wife is engaged in a trade or business on her 
 own account, and is receiving or entitled to receive the 
 compensation or income from such business, she is enti- 
 tled to recover damages for loss of time occasioned by an 
 injux'y received through the negligence of another.^ 
 
 There must, however, be some evidence showing that 
 she is engaged in such business upon her own account, or 
 is allowed to apply the earnings to her own use in a sep- 
 arate business." 
 
 § 39. Opinion Evidence of Value of Time Lost 
 Inadmissible. In proving the value of the time lost by 
 the plaintiff on account of injuries caused through the 
 
 iRio Grande Western Ry. Co. v. (N. Y.), 368; London v. Cunning- 
 
 Rubenstein, 5 Colo. App., 131, 35 Pac. ham, 20 N. Y. Supp., 882 ; Readdy v. 
 
 Rep., 76. Borough of Shamokin, 137 Pa. St. , 
 
 2 Allison V. Chandler, 11 Mich., .542; 98, 20 Atl., 396; Lindsay v. Danville, 
 
 See Taylor v. Dustin, 43 N. H., 493 ; 46 Vt , 144; Carr v. Easton, 7 Pa. Co. 
 
 Simmons v. Brown, 5 R. I., 299, 73 Ct. R., 403. 
 
 Am. Dec , 66. ^ Brooks v Schwerin, 54 N. Y., 343 ; 
 
 'Filer v. N. Y. Cen. R. R. Co., 49 N. Birbeck v. Achroyd, 74 N. Y., 356 ; 30 
 
 Y. 47 ■ Thomas v. Town of Brook- Am. Rep., 304 ; Smith v. Railroad Co , 
 
 lyn, 58'lowa, 438; Atchison, etc. ,T.R. 119 Mo., 246; Thomas v. Town of 
 
 Co V McKinnis, 46 Kan., 109, Blae- Brooklyn, 58 Iowa, 438, 10 N. W. Rep., 
 
 chinska v. Howard Mission, 130 N. 849 ; Jordon v. Railroad Co., 138 Mass., 
 
 Y 497 425. 
 
 * Metropolitan St. Ry. Co. v. John- «Uransky v. Dry Dock E. B. & B. 
 
 son 91 Ga., 466 ; Citizens St. Ry. Co. R. Co.. 118 N. Y., 304, 23 N. E. Rep , 
 
 V. Twiname, 121 Ind., 375; 23 N. E. 451, 16 Am. St. Rep., 759; Bloom v 
 
 Reo 159 7 L. R- A., 352; Hopkins v. Railway Co , 17 N. Y. Supp , 812, 63 
 
 Railway Co., 36 N. H, 9 ; 72 Am. Dec, Hun., 630. See post, Ch. 18, Husband 
 
 287; Cregin v. Railroad Co., 18 Hun. and Wife. 
 
g 40 DAMAGES FOR LOSS OF TIME. 60 
 
 negligence of another, the opinions of witnesses as to 
 what the plaintiff was capable of earning at and before 
 the time of his injury, in his business, trade or profes- 
 sion, have been held inadmissible, when it appears that 
 such witnesses have had no experience or have no knowl- 
 edge of the occupation in which the plaintiff was en- 
 gaged / 
 
 The reason for this rule is that the evidence would be 
 purely an opinion based upon contingencies too remote 
 and uncertain to form any basis for the awarding of dam- 
 ages^ 
 
 It is laid down as a general rule that in order to justify 
 a recovery for the value of time lost, some evidence must 
 be given from which its value may at least be inferred.* 
 
 § 40. Mitigation of Damages. There are certain 
 facts and circumstances sometimes connected with an 
 action for damages for a personal injury, which the de- 
 fendant may show in mitigation of damages. There is 
 no good reason why the defendant may not prove that 
 the plaintiff did not earn anything or did earn but very 
 little for his support, or for the support of others, in or- 
 der to show that his time had no value or was of very little 
 importance. The plaintiff is entitled to recover only the 
 actual damages which he has sustained. If it is shown 
 that he has sustained no damage on account of any al- 
 leged injury, he is not entitled to recover anything. An 
 idler has not lost the value of any time, and if he has 
 not lost anything, he is not entitled to recover something 
 for that which he has not lost, or which has been and is 
 of no value to him. Hence, the defendant ma}'' show that 
 the plaintiff has not spent and does not spend his time 
 in any useful business or occupation.* 
 
 Where a physician claims damages for loss of profits 
 in his business, the defendant may show that his practice 
 was unlawful." That the plaintiff was engaged in the 
 liquor traffic without a license." Evidence that the plain - 
 
 1 Atchison, etc , Kd. Co. v. Chance, 58 Hun., 298; O'Brien v. Loom is, 43 
 
 67 Kan., 40 ; Atlantic, etc., R. R. Co. v. Mo. App., 29 ; Galveston, etc., Bd. Co. 
 
 Newton, 85 Ga., 57 ; Nave v. Alabama v. Thornsberry, 17 S. W. Rep., 521. 
 G. S. Ry. Co., 94 Ala., 264, 54 Am. & * Baltimore & O. Rd. Co. v. Botiler, 
 
 Eng. Rd. Cases, 151, 11 South. Rep., 38 Md., 568. 
 391- ^ Jacques v. Railroad Co., 41 Conn., 
 
 2Nave V. Railway Co., 94 Ala., 264. 61. 
 
 'Klein v. Railway Co., 54 N. Y. * Kane v. Johnston, 9 Bosw., (N. Y.) 
 
 Supr. Ct., 164; Wood v. Watertown, 154. 
 
€ ' DAMAGES FOR LOSS OF TIME. ? 40 
 
 tiff was an habitual drunkai-d is admissible in mitigation 
 of damages, for the reason that his habits had incapaci- 
 tated him from performing labor, or from earning any- 
 thing from his labor, and that he was responsible for this 
 condition. If a person has incapacitated himself from 
 doing any work, in whole or in part, he certainly cannot 
 recover damages for so much of his incapacity as was 
 the result of his own act. For this the defendant is in 
 no way responsible or liable for its consequences.^ 
 
 It has been held that it is competent to show that the 
 plaintiff had no means upon which to subsist and that he 
 was dependent entirely upon his own labor for his sup- 
 port.^ The ground upon which this evidence was held 
 admissible was that it tended to show the nature of his 
 business and the value of his services. If he has no 
 business or no means upon which to live, it tended to 
 prove that the value of his time was comparatively small 
 or insignificant. 
 
 But this doctrine may well be doubted and was denied 
 in California.* 
 
 Wages Receives During Disability. The defend- 
 ant may show that the plaintiff has continued to receive 
 his wages from his employer for the time which he lost 
 on account of the injury.* The contra doctrine was 
 announced in Texas. ^ 
 
 ^ Cleveland & Pittsburg R. Co. v. distinction between or a line where 
 
 Sutherland, 19 Ohio St., 151, 156. manual labor ceases to be such, in 
 
 But the contrary doctrine is held in many kinds of employments. Brain 
 
 Baltimore '& O. Rd. Co. v. Botiler, 38 work in some degree is required in 
 
 Md., 568. every kind of employment or busi- 
 
 2 Hunt V. Railway Co., 26 Iowa, 363. ness. To except one class of workers 
 
 ' Shea V. Railroad Co., 44 Cal., 414. (for we all are workers) from the 
 In this case it was held that the jury whole, and deny tothem what is given 
 could not take into consideration the to another, would be unjust in prin- 
 fact that the plaintiff was a person ciple, and wrong in practice, not to 
 ■who had to depend upon his own use any stronger language. See also 
 manual labor for a living. This de- Lord v. Mobile, 21 South. Rep.,36'i. 
 ■cision is based upon sound reason. * Ephland v. Mo. Pac. Ry. Co. 67 
 A little reflection will show that the Mo. App., 147; Drinkwater v. Dins- 
 fact that an injured person was a more, 80 N. Y., 390; Montgomery, etc. 
 manual laborer should not militate Rd. Co. v. Mallette, 92 Ala., 209; Lee 
 against the right to recover for all v. Western Union Tel. Co., 51 Mo. 
 the damages which he has sustained App., 375. 
 
 by an injury caused by the negli- 'Central Mo. Rd. Co. v. Jarrard, 66 
 
 gence of another. Then it would be Tex., 560. 
 difficult if not impossible to draw a 
 
? 41 DAMAGES FOR LOSS OF TIME. . 62 
 
 The plaintiff is not entitled to recover for his own time 
 and the wages paid to another person to work in his 
 place/ 
 
 The fact that the plaintiff received a salary as post- 
 master during the period of his incapacity may be consid- 
 ered by the jury on the question of damages for lost time/ 
 
 Where the action was against a third party for dam- 
 ages for an injury which he had received, the fact that 
 the employer of the plaintiff paid to him his wages or 
 salary which he would have earned during the period of 
 his disability, would not mitigate the damages against 
 such third party, for the time lost, to which he was 
 entitled by reason of such injury/ 
 
 § 44. Double Remedy. The allowance of damages- 
 for loss of time while the plaintiff was incapacitated from 
 an injury, and after that for diminished capacity for labor 
 is not a double remedy.* 
 
 But the recovery for loss of time by an injured person 
 during the period of disability, in addition to the wages- 
 which he might have earned cannot be allowed, for this 
 would be double compensation.^ 
 
 § 42. Pleading. If the plaintiff wishes to recover for 
 any profits which he may have lost, or claims to have lost 
 by reason of the injury, he must plead that fact in his 
 declaration or petition." 
 
 If he wishes to recover damages which do not naturally 
 nor reasonably result from the injury, then he must plead 
 such facts as will allow him to prove such damages. 
 These damages come under the head of special damages 
 and must be pleaded.' 
 
 1 Blackman V. Gardiner Bridge, 75 ^Silsby v. Michigan Car Co. 95 
 
 f'A ir. . X,., Mich., 204; City of Pueblo V. Griffin, 
 
 o. o?°fH"^ ''■ R3i''"°ad Co., 177 Pa. 10 Colo., 366, 15 Pac. Rep., 616. 
 
 St 35 Atl. Rep., 191. 'Gumb v. 23d St. Ry. Co., 114 N. Y., 
 
 .;o T°^'°i,%**'' ^- ^- *^°- ''• Dickerson, 411, 21 N. E. Rep., 993, note : Joslin v. 
 
 &9Ind., 317. Grand Rapids Ice Co., 50 Mich., 516; 
 
 'Houston & E. W. T. Ry. Co. v. Spencer v. Railroad Co,, 21 Minn 
 
 Hartnett, 48 S. W. Rep., 773. 362 ; Laing v. Colder, 8 Pa St 479 ' 
 
 ^ GuH etc., Rd. Co. v. Wilson, 79 Johnson v: Wells, 6 Nev. 224 ' ' 
 
63 
 
 BODILY PAIN AND SUFFERING. 
 
 i 43 
 
 CHAPTER V. 
 
 BODILY PAIN AND SUFFERING. 
 
 Sec 
 43. 
 
 44. 
 45. 
 46. 
 
 47. 
 48. 
 
 Physical Pain and Suffering in 
 
 General. 
 Compensation for Physical Pain. 
 Future Pain and Suffering. 
 Future Pain and Suffering Must 
 
 be Reasonably Certain. 
 Probable Duration of Life. 
 Compensation for Physical Pain 
 
 Sec. 
 
 49. 
 50. 
 
 51. 
 
 52. 
 
 Not Exemplary. 
 Proof of Pain. 
 Recovery for Pain When Death 
 
 Occurs. 
 Expert or Opinion Testimony. 
 Exclamations of Pain by Injured 
 
 Party. 
 
 § 43. Physical Pain and Suffering in General. 
 
 In every personal injury, the physical pain and suffer- 
 ing endured is recognized as an element of damages for 
 which a recovery may be had. This element of damages 
 means the bodily pain and suffering which a person may 
 endure and experience as distinct from mental anguish, 
 which is another element of damages. Mental anguish 
 may arise and result from causes where no physical 
 injury has been received. In many cases, however, men- 
 tal suffering- depends upon and is the consequence of a 
 physical injury. 
 
 In assessing damages which the plaintiff is entitled to 
 recover for personal injuries, the jury may and should 
 consider, as an important element of damages, the phy- 
 sical pain and suffering caused by or resulting from such 
 injuries.^ 
 
 1 In Mobile, etc., R. Co. v. George, 
 94 Ala., 199: City of Birmingham v. 
 Lewis, 92 Ala., 352; 9South. Rep., 243; 
 Southern &N. A. R. Co. v McLendon, 
 63 Ala., 266 ; Louisville, etc., R. Co. v. 
 Binion, 18 South. Rep., 75; 107 Ala., 
 646 ; Alabama & G. S. R. Co. v. Hill, 93 
 Ala., 514, 30 Am. St. Rep., 65; Mem- 
 phis & C. R. Co. V. Whitfield, 7 Am. 
 Rep., 699, 44 Miss., 466; Barbee v. 
 Reese, 60 Miss., 906: Donnelly. Sand- 
 ford, 11 La. Ann., 645; Lapleine v. 
 Morgan's L. & T. R. & S. S. Co. 40 
 La. Ann., 661, 1 L. R. A., 378; Inter- 
 national & G. N. R. Co. V. Bonatz, 
 
 (Tex.) 48S. W. Rep., 767; Mexican 
 Centr. R. Co. v. Mitten, 13 Tex. Civ. 
 App., 653; San Antonio, etc., R. Co. 
 V. Keller, 11 Tex. Civ. App., 569 ; Gulf, 
 etc., R. Co. V. Brovirn, 40 S. W. Rep., 
 608 ; Missouri, etc., R. Co. v. McElree, 
 41 S. W. Rep., 843; Fort Worth v. 
 Johnson, 84 Tex., 137 ; Galveston, etc., 
 R. Co. v. Waldo, 32 S. W. Rep., 783 ; 
 Greenville Oil & Cotton Co. v. Har- 
 ley, 48 S. W. Rep., 1005 ; Missouri, K. 
 &'T. Ry. Co. of Texas v. Parker, 49 
 S. W. Rep., 717 ; Fort Worth & D. C. 
 R. Co. V. Robertson, (Tex.) 14 L. R. A., 
 781 ; Cameron v. Vandergriff, (Ark.) 
 
« 44 
 
 BODILY PAIN AND SUFFERING. 
 
 64 
 
 § 44. Compensation for Physical Pain and Suffer- 
 ing. No Fixed Rule. There is no Procrustean 
 
 or fixed rule by which to assess the amount of damages 
 to be awarded for physical pain and suffering caused by 
 
 St. Louis S. W. R. Co v. Dobbins, 60 
 Ark., 481,13 S. W. Rep., 1092; St. 
 Louis, etc. ,R. Co. v. Blackburn, (Ark.), 
 15 S. W. Rep., 469 ; St. Louis, etc., R. 
 Co. V Cantrell, 37 Ark., 519 ; Ward v. 
 BlacKwood, 48 Ark., 396; Barlow v. 
 Lowder, 35 Ark., 492 ; Cooper v. Mul- 
 lins, 30 Ga., 146, 76 Am. Dec, 638 ; 
 Western, etc., Rd. Co. v. Abbott, 74 
 Ga.,851; Richmond, etc., Rd. Co. v. 
 Williams, 88 Ga., 16 ; Ball v. Mabry, 
 91 Ga., 781 ; Western & Atlantic Rd. 
 Co. V. Drysdale, 61 Ga., 644; Western 
 & Atlantic Rd. Co. v. Young, 81 Ga., 
 397, 12 Am. St. Rep., 320; Atlanta & 
 R. A. L. R. Co. V. Wood, 48 Ga. , 565 ; 
 Wallace V. Railroad Co., 104 N. C.,42, 
 10 S. E. Rep.,552; Standard Oil Co. 
 V. Tierney, 92 Ky., 367, 36 Am. St. 
 Rep., 595; Kentucky Cent. R. Co. \. 
 Ackley, 87 Ky., 278, 12 Am. St. Rep., 
 480 ; Sidekum v. Railroad Co., 93 Mo., 
 400 ; Whalen v Railroad Co., 60 Mo., 
 323; Stephens V. Railroad Co., 96 Mo., 
 207, 9 Am. St. Rep., 336; Blair v. 
 Railroad Co., 89 Mo., 383 ; Winkler v. 
 Railroad Co., 20 Mo. App., 99: Hana- 
 ford V. Kansas City, 103 Mo., 172; 
 Ridenhour v. Cable Co., 102 Mo., 270 ; 
 Bigelow V. Street Ry. Co., 48 Mo. 
 App., 367; Klutts v. Railroad Co., 75 
 Mo., 642; Brown v. Railroad Co., 99 
 Mo., 310; Morris v. Railroad Co., 45 
 Iowa, 29 ; McKinley v. Railroad Co., 
 44 Iowa, 314, 24 Am. Rep., 748 ; Moore 
 V. Railroad Co., 47 Iowa, 688; Mul- 
 downey v. Railroad Co., 36 Iowa, 462 ; 
 Deppe V. Railroad Co., 38 Iowa, 592; 
 Lucas V. Flinn, 35 Iowa, 9 ; Johnson 
 V. Railroad Co., 47 Minn., 430 ; 
 Stutz V. Railroad Co., 73 Wis., 147, 
 9 Am. St. Rep., 769; Spicer v. 
 Railroad Co., 29 Wis., 580; Water- 
 man V. Railroad Co., 82 Wis., 
 613; Ripon v. Bittell, 30 Wis, 614; 
 Brown v. Railroad Co., 54 Wis., 342; 
 Heddles v. Railroad Co., 77 Wis., 228, 
 20 Am. St. Rep., 114; Stewart v. 
 Ripon, 30 Wis., 614; Nichols v. Bra- 
 bazon, 94 Wis., 549; Sheel v. Citv of 
 Appleton, 49 Wis., 125; Reinke v. 
 Bentley, 90 Wis., 457, 63 N. W. Rep., 
 1055; Welch v. Ware, 32 Mich., 77; 
 
 Geveke v. Railroad Co., 57 Mich., 
 589; Sherwood v. Railroad Co., 82 
 Mich., 374; Kinney v. Folkerts, 84 
 Mich., 616; Hurst v. Ra.lway Co., 84 
 Mich., 539 ; Scott v. Hamilton, 71 
 111., 85; Peoria Bridge Ass. v. Loomis, 
 122 111., 461, 13 N. E. Rep., 145; East 
 St. L. & C. Rd. Co. V. Frazier, 26 
 111. App., 427; Central Rd. Co. v. 
 Serfais, 153 111., 379 ; Toledo, etc., Rd. 
 Co. V. Baddeley, 54 111 , 19, 5 Am. 
 Rep., 71 ; Illinois Central Rd. Co. v. 
 Cole, 62 111. App., 480; Chicago v. 
 McLean, 133 111., 148, 24 N. E. Rep., 
 527; Consolidated Coal Co. v. 
 Haenni, 146 111., 614; Chicago v. 
 Langlass, 66 111., 361 ; Lake Shore & 
 M. S. Ry. Co. V. Johnson, 135 111., 
 641 ; Sandwich v. Dolan, 141 111., 430, 
 31 N. E. Rep., 416 ; Chicago & A. R. 
 Co. V. Fisher, 38 111. App., 33; Lin- 
 coln Ice Co. V. Johnson, 37 111. App., 
 453; Chicago, B. & Q. Rd. Co. v. 
 Warner, 108 111., 538; Lasalle v. Por- 
 terfield, 138 111., 114; West Chicago 
 St. Ry. Co. V. Poster, 175 111., 396, 51 
 N. E. Rep., 690; Indiana Car Co. v. 
 Parker, 100 Ind., 181; Pittsburg, C. 
 & St. L. Rd. Co. V. S onier, 85 Ind., 
 165; Louisville, N. A. & C. R. Co. v 
 Falvey, 104 Ind., 409, 3 N. E. Rep., 
 389 ; Ohio, etc.', Rd. Co. v. Dickerson, 
 59 Ind., 317; Terre Haute, etc., Rd. 
 Co. V. Brunker, 128 Iud.,542; Stewart 
 V. Maddox, 63 Ind., 51 ; Wabash, etc., 
 Ry. Co. V. Morgan, Ind., 31 N. E. 
 Rep., 661; C, H. V. & T. Ry. Co. v. 
 Shannon, 2 O. CD., 644, 4 O. CO., 449; 
 Brooklyn St. Ry. Co. v. Kellev, 3 O. C. 
 D., 393, 6 O. C. C, 155 ; Toledo Con. St. 
 Ry. Co. V. Sweeney, 4 O. CD., 11, 8 0. 
 CC, 298; Toledo Cou. St. Ry. Co. v. 
 Rohner,6 O. C. D., 706,9 0. C. C, 702; 
 Pittsburg & L. E. Ry. Co. v. Blair, 5 O. 
 CD., 366, 11 O.C. C.,579; L. S.& M. 
 S. Ry. Co. V. Winslow, 4 O. C. D., 242, 10 
 O. C. C, 193; L. S. & M. S. Rv. Co. v. 
 Gagen, 4 O. C. D , 260, 12 O. C'C, 695 ; 
 Toledo V. Higgins, 7 O. C D., 29, 12 
 O. C. C, 646 ; C H. & D. Rv. Co. v. 
 Boyer, 10 O. C. D., J99 ; Toledo St. 
 Ry. Co v. Tucker, 7 O. C. D , 169 ; 
 13 O. C. C, 411; Bond Hill v. At- 
 
65 
 
 BODILY PAIN AND SUFFERING. 
 
 ? 44 
 
 an injury. There is no standard for the measurement of 
 such damages. The amount should be a fair, just, and 
 reasonable compensation for the physical pain and suffer- 
 ing, consistent with the nature and extent of the injury.^ 
 
 kinson, 9 O. C. D., 185, 16 O. C, 
 C, 470 ; Toledo v. Clopeck, 9 O. C. D., 
 432, 17 O. C. C, 585; Pittsburg, etc., 
 Rd. Co. V. Donahue, 70 Pa. St., 119 ; 
 Baker V. Railroad Co., 142 Pa. St., 
 503, 21 Atl. Rep., 979; Wilson- v. 
 Railroad Co., 132 Pa. St., 27; Penn- 
 sylvania Rd. Co. V. Graham, 63 Pa. 
 St., 290, 3 Am. Rep., 549; Pennsyl- 
 vania Rd. Co. V. Allen, ^S Pa. St., 276 ; 
 Pennsylvania Rd. Co. v. Books, 57 Pa. 
 St., 339, 98 Am. Dec, 229 ; McLaugh- 
 lin v. Corry, 77 Pa. St., 339, 18 Am. 
 Rep., 432 ; L. S. & M. S. Ry. Co. v. 
 Franz, 127 Pa. St., 297, 18 Atl. Rep., 
 22; Dunn v. Railroad Co., 20 Phil. 
 (Pa.), 258 ; Schneider v. Railroad Co., 
 3 Atl. Rep., 26; Richmond & D. R. 
 Co. V. Norment, 84 Va., 167, 10 Am. 
 St. Rep., 827 ; Wallace v. Wilmington 
 & N. R. Co., 8 Houst. (Del.), 529, 18 
 Atl. Rep., 818 ; Ford v. Charles War- 
 ner Co., 37 Atl. Rep., 39; Baltimore 
 & O. Rd. Co. v. Kean, 65 Md., 394; 
 McMahon v. Railroad Co., 39 Md., 
 438; Pittsburg, etc., Rd. Co. v. An- 
 drews, 39 Md., 329 ; Bannon v. Rail- 
 road Co., 24 Md., 108 ; Klein v. Jewett, 
 26 N. J. Eq., 474; Walker v. 
 Railroad Co., 63 Barb. (N. Y.),260; 
 Koetter v. Railroad Co., 13 N. Y. 
 Supp., 458 ; Murray v. Railroad 
 Co., 47 Barb. (N. Y), 196; Ran- 
 som V. Railroad Co. 15 N. Y., 415 ; 
 Murrav v. Railway Co., 15 N. Y. 
 Supp.,' 900; Kane v. Railroad Co., 
 132 N. Y., 160, 30 N. E. Rep., 256; 
 Filer v. Railroad Co., 49 N. Y.. 42, 10 
 Am. Rep., 327 ; Hamilton v. Railroad 
 Co., 53 N. Y., 25; Oneil v. Railroad 
 Co., 59 N. Y., Super. Ct., 123; Morse v. 
 Railroad Co., 10 Barb., 621 ; Swarthout 
 V. Steamboat Co., 46 Barb., 222; 
 Miller v. Railroad Co., 54N. Y. Supp., 
 606; Linsley v. Bushnell, 15 Conn., 
 225; Segur v. Barkhamsted, 22 Conn., 
 290; Ashcroft v. Chapman, 38 Conn., 
 230 ; Johnson v. Holyoke, 105 Mass., 
 80 ; Smith v. Holcomb, 99 Mass., 552 ; 
 Ballou V. Farnum, 11 Allen (Mass.), 
 53; Verrill v. Minot, 31 Me., 299; 
 Blackman v. Gardiner, etc., Bridge, 
 72 Me., 214 ; Campbell v. Sugar Co., 
 
 62 Me., 552, 16 Am. Rep., 503 ; Mason 
 V. Ellsworth, 32 Me., 271; Holyoke v. 
 Railway Co., 48 N. H., 541 ; Nones v. 
 Northouse, 46 Vt., 587; Bovee v. 
 Daniels, 53 Vt., 183; Atchison, etc., 
 Rd. Co. v. Lee, (Kan.) 4 Am. Neg. 
 Rep., 633 ; Railroad Co. v. McGinnis, 
 46 Kan., 109, 26 Pac. Rep., 453; 
 Abilene v. Wright, 4 Kan. App., 708; 
 Railroad Co. v. Lamoreaux, 5 Kan. 
 App., 817, 49 Pac. Rep., 152; Hamil- 
 ton V. Railway Co., 17 Mont., 334; 
 Solen V. Virginia & Truckee Rd. 
 Co., 13Nev., 106; Johufon v. Wells- 
 Fargo Co., 6 Nev., 224, 3 Am. Rep., 
 245; Caples v. Centr. Pac. Rd. 
 Co., 6 Nev., 265; Oliver v. Transler 
 Co., 3 Oregon, 84 ; Giblin v. Mclntvre, 
 2 Utah, 384; Hawkins v. Railr.ad 
 Co., 3 Wash., 592; Cogswell v. Rail- 
 wavCo.,5 Wash. St., 46, 31 Pac. Rep., 
 4lf ; Phillips v. Railway Co., 5 Q. B. 
 Div., 78 ; Theobald v. Railway 
 Pass. Ass. Co., 20 Eng., L. & Eq. 432 ; 
 Blake v. Railroad Co., 10 Eng. L. & 
 Eq., 437; Totten v. Railroad Co., 11 
 Fed. Rep., 564; Harris v. Railroad 
 Co., 13 Fed. Rep.. 591 ; Robertson v. 
 Cornelson,34 Fed. Rep., 716 ; Whelan 
 V. Railroad Co., 38 Fed. Rep., 15; 
 Davidson v. Railroad Co., 44 Fed. 
 Rep., 476; Union Pac. Ry. Co. v. 
 Jones, 49 Fed. Rep., 343; Saldana v. 
 Railroad Co., 43 Fed. Rep., 862; 
 Mackoy v. Railroad Co., 18 Fed. 
 Rep., 236; Lindvall v. Woods, 44 
 Fed. Rep., 855; Illinois Centr. Co. 
 V. Davidson, 76 Fed. Rep., 577; 
 Vicksburg & Meridian Rd. Co. 
 v. Putnam, 118 U. S.,546; Wade v. 
 Leroy, 20HOW. (U. S.), 34. 
 
 iDunn v. Railroad Co., 20 Phila. 
 (Pa.), 258 ; Lindvall v. Woods, 44 Fed. 
 Rep., 855; Fuller v. Citizens' Nat. 
 Bank, 15 Fed. Rep., 875; Harris v. 
 Railway Co., 13 Fed. Rep., 591; 
 Vicksburg & Meridian Rd. Co. v. 
 Putnam, 118 U. S., 545; Brown v. 
 Railroad Co., 51 Mo. App., 192; 
 Fowler v. Railroad Co , 13 N. Y. 
 Supp., 453; Spaulding v. Railroad 
 Co., 142 Pa. St., 503, 12 L. R. A., 698; 
 Western & Atl. R. Co. v. Young, 81 
 
§44 
 
 BODILY PAIN AND SUFFERING. 
 
 66 
 
 This amount is a matter entirely within the province 
 of the jury. No general rule can be given to them by 
 which to determine it. It rests in their common sense, 
 sound discretion, general intelligence, and unbiased 
 judgment. Each case must be determined by its own 
 facts and circumstances, for the reason that an injury 
 which would cause little suffering in one person may be 
 a source of great physical pain to another person. It 
 may be truly stated that there is no measure of pecuni- 
 ary compensation for pain and suffering.' 
 
 The estimate of damages for physical suffering incident 
 to a personal injury must necessarily depend upon the 
 judgment of the jury. There can be no direct proof in 
 regard to the amount of it, and no witness can be allowed 
 
 Ga., 397, 12 Am. St. Rep., 320; Rich- 
 mond & D. R. Co. V. Allison, 86 Ga., 
 145, 11 t,. R. A., 43; Davis v. Rail- 
 road Co., 60 Ga., 329; Springfield 
 Consolidated Ry. Co. v. HoefFner, 175 
 111., 634, 51 N. E. Rep., 884; Standard 
 Oil Co. V. Tierney, 92 Ky.,36, 36 Am. 
 St. Rep.. 595; Ward v. Blackwood, 
 48 Ark., 396; Montgomery, etc., Rd. 
 Co. V. Mallette, 92 Ala., 209, 9 South. 
 Rep., 363; Morris v. Railroad Co., 
 45 Iowa, 29. 
 
 1 Richmond & D. R. Co. v. Allison, 
 86 Ga., 145, 11 L. R. A., 43. In 
 Western & Atlantic R. Co. v. Young, 
 81 Ga., 397; 12 Am. St. Rep., 320, 
 the charge of the trial court was ap- 
 proved by the Supreme Court. The 
 court said: " As to cuts, wounds, and 
 bruises, aud the like, and the pain and 
 suffering resulting therefrom, or 
 impairment of physical proportion 
 and symmetry resulting from the loss 
 of a member, the law has no standard 
 by which the amount of damages of 
 this sort can be ascertained. Dam- 
 ages of this kind are peculiarly in 
 the discretion of the jury. The law 
 refers the matter of amount, if any 
 to be awarded as to this item, to the 
 enlightened conscience of impartial 
 I'urors, whose aim it is to be fair and 
 reasonable, just and not oppressive." 
 
 In Davis v. Central Rd. Co., 60 Ga., 
 329, the court said : " There is n> 
 known rule of law by which witnesses 
 can give you the amount in dollars 
 
 and cents as the amount of injury 
 but this is left to the enlightened con- 
 science of an impartial jury. This 
 does not mean that juries can arbi- 
 trarily enrich one party at the ex- 
 pense of the other, nor that they 
 should act unreasonably through 
 mere caprice. But it authorizes you 
 to give reasonable damages, when the 
 proof shows that the law authorizes 
 it. But the jury should exercise com- 
 mon sense and love of justice, and 
 from a desire to do right, fix an 
 amount that will fairly compensate 
 for the injury received. " 
 
 In Spaulding v. Railroad Co., 142 
 Pa. St., 503. 12 L. R. A., 698, the Su- 
 preme Court said : " The true rule 
 is that in addition to the loss of 
 time and expenses actually inc.irred 
 by the plaintiff by reason of the in- 
 jury, the jury may consider also the 
 nature of the injury, the pain and in- 
 convenience resul'ting from it, and 
 make such an allowance therefor as 
 in view of all the attending circum- 
 stances may seem to be just and rea- 
 sonable. The age, the health, habits, 
 and pursuits of the plaintiff must be 
 taken into consideration in deter- 
 mining what is a reasonable allow- 
 ance for inconvenience and suffering 
 in anv given case. The absence of a 
 cruel or wanton purpose in the defen- 
 dant must not be ovei-looked. From 
 the whole case the question is what i 
 is a reasonable allowance for the suf- 
 fering necessarily endured." 
 
67 BODILY PAIN AND SUFFERING. § 44 
 
 to express his opinion upon the amount to be awarded for 
 such suffering.^ 
 
 There is no market in which the price of a voluntary- 
 submission to pain and suffering can be fixed. There 
 is no market standard of a value to be applied ; and to 
 suggest the idea of price to be paid as an approximation 
 to the money value of suffering, is to give loose rein to 
 sympathy and caprice.^ 
 
 It is not only erroneous, but inexact to so instruct the 
 jury as to lead them to consider compensation for phy- 
 sical pain and suffering as an independent item of dam- 
 age.' But in Kansas the contra doctrine was sustained, 
 where a verdict of S500.00 for physical pain and suffering, 
 and $500.00 for mental suffering and distress, was 
 aflBrmed.* 
 
 This decision, however, may be regarded as against 
 the great weight of authority. It is error for the jury in 
 assessing the plaintiff's damages to make separate assess- 
 ments for "pain and suffering," "mental anguish," 
 and "peril and fright," as the first item is broad enough 
 to cover the last two.^ The measure of damages must, to 
 a great extent, depend upon the pains and suffering of the 
 plaintiff, and these cannot be accurately measured by a 
 penalty^.* 
 
 The word "compensation" in the phrase, "compensa- 
 tion for pain and suffering, "is not to be understood as 
 meaning price or value, but as describing an allowance 
 looking towards recompense for and made on account of 
 the suffering incident to or consequent upon the injury. '^ 
 In actions for personal injuries there is no measure of 
 sums or value fixed by custom, market or law, and so the 
 
 1 Chicago, P. & St. I/. Rd. Co. v. It is not error for the court to in- 
 Lewis, 48 111. App., 274 ; Interna- struct the jury that "money is an in- 
 tional & G. N. Rd. Co. V. Gilbert, 64 adequate recompense for pain." 
 Tex., 536. Morgan v. Railroad Co., supra. 
 
 2 Spaulding v. Railroad Co., 142 Pa. ^ Goodhart v. Railroad Co., 177 Pa. 
 St., 503, 12 L. R. A., 698 ; Davidson v. St., 1 ; Spaulding v. Railroad Co., 142 
 Railroad Co., 44 Fed. Rep., 476, 481 ; Pa St , 503. 
 
 Campbell v. Sugar Co., 62 Me., 552, * Atchison T. & S. F. Rd. Co. v. Lee, 
 
 16 Am. Rep., 503; Bigelow v. Railway (Kan.), 4 Am. Neg. Rep., 633. 
 
 Co., 48 Mo. App., 367 ; Morgan v. * Galveston, H. & S. A. Ry. Co. v. 
 
 Railway Co., 95 Cal., 510; Morris v. Profert, 72 Tex., 344, 10 S. W., 207. 
 
 Railroad Co., 45 Iowa, 29 ; Goodhart « Walker v. Railway Co., 63 Barb. 
 
 V. Railroad Co., 177 Pa. St., 1 ; Allan- (N. Y.), 260. 
 
 tic. etc., Rd. Co. v. Gathright, 92 Va., ' Goodhart v. Railroad Co., 177 Pa. 
 
 627. St.,1. 
 
§ 45 BODILY PAIN AND SUFFERING. 68 
 
 law makes it the exclusive discretion, and peculiar prov- 
 ince of the jury to name the amount.' 
 
 The only thing for the court to say to the jury is th4t 
 the damages for pain and suffering should be estimated in 
 a fair and reasonable manner and not by any sentimental 
 or fanciful standard, nor awarded with any desire to 
 punish the negligent party.^ 
 
 The measure of damages for physical pain and suffer- 
 ing is not the price for which a volunteer would endure 
 the suffering caused by the injuries, or such a sum as 
 would induce a person to undergo the injuries and suffer- 
 ing occasioned thereby.'* 
 
 A person in need of medical aid can recover from a tel- 
 egraph compan}!" for pain and suffering which he sustained 
 by reason of the negligent delay in delivering a message 
 calling for such aid, and which he would not have suffered 
 but for the delay in the arrival of the surgeon, occa- 
 sioned by the delay in delivering the message.* 
 
 § 45. Future Pain and Suffering. Damages For. In 
 
 actions for personal injuries, it may be considered as set- 
 tled that the plaintiff is entitled to recover damages for 
 physical pain and suffering, which the evidence shows 
 that he will be obliged to endure. This is upon the prin- 
 ciple that the plaintiff is entitled to recover full and ade- 
 quate compensation, in a single action, for all the reason- 
 able and natural consequences of the negligent .act. 
 If one of the consequences of such negligent act be 
 that he will be reasonably certain to suffer pain in the 
 future, he should be compensated for such future suffer- 
 ing, as much as for the past. One is as reasonable and 
 just as the other. A compound fracture of a certain part 
 of the body, as the ankle, hip joint, wrist, etc,, can never 
 be restored to its former strength, and such injured part 
 will never perform its work with the ease and freedom 
 which it did before the injury. In a large percentage, if 
 
 ' Brown v. Railway Co., 51 Mo. ' Spaulding v. Rai road Co., 142 
 
 *??^' ^f^- ., . P^- St., 503, 12 h. R. A,. 698; Deep 
 
 Goodhart v. Railroad Co., 177 Pa. Mining, etc. Co. v. Fitzgerald 21 
 
 St., 1; Bigelow v. Railway Co., 48 Colo., 533; Louisville, etc. Railroad 
 
 Mo. App., 367 ; Morris v. Railroad Co., Co. v. Fox, 11 Bush (Ky ), 495 • Tully 
 
 45 Iowa, 29; Haniford v. Kansas v. Steamship Co., 10 N. Y. App. Div., 
 
 City, 103 Mo., 172 ; Spaulding V. Rail- 463. x. pp. .l.v, 
 
 road Co., 142 Pa. St., 503. ■• Western Union Tel. Co. v. McCall, 
 
 (Kan.), 6 Am. Neg. Rep., 520. 
 
69 
 
 .BODILY PAIN AND iiUFFERING, 
 
 45 
 
 not all, of such injuries, the injured person is certain to 
 suffer inconvenience and pain, more or less, during the 
 remainder of life. The pain may be less at one time than 
 at another, but the discomfort and pain will ever be a pres- 
 ent reminder of the injury, aad of the weakness and inca- 
 pacity of the injured part. Tendencies to rheumatism or 
 disease may add to and intensify the pain for all future 
 time. For all such future pain, which the evidence may 
 establish with reasonable certainty, the injured person is 
 entitled to recover reasonable compensation.^ 
 
 It has been held that it was proper for the court to 
 instruct the jury that they might allow damages for 
 
 I Miller v. Steamboat Co., 25 N. Y. 
 Supp., 924; Feeney v. Railroad Co., 
 116 N.Y., 875, 5 h. R. A., 544 ; Filer v. 
 Railroad Co., 49 N. Y., 42; Farmer v 
 Newburgh, 109 N. Y., 301 ; Griswold 
 V. Railroad Co., 115 N. Y., 61 ; Kane 
 V. Railroad Co., 132 N. Y., 160 ; Koet- 
 ter V. Railroad Co., 69 Hun. (N. Y.), 
 623 ; Smith v. East Mauch Chunk, 3 
 Pa. Sup. Ct., 495; Scott v. Mont- 
 gomery, 90 Pa. St., 444; Schneider v. 
 Railroad Co., 3 Atl. Rep., 26 ; Wal- 
 lace V. Railroad Co., 8 Houst. (Del.), 
 529 ; Atlantic & W. P. R. Co. v. John- 
 son, 66 Ga., 269; Ball v. Mabry, 91 
 Ga., 781; South, etc. Alabama R. Co. 
 V. Mclvendon, 63 Ala., 266; St. Louis 
 Southwestern R. Co. v. Dobbins, 60 
 Ark., 481 ; Mexican Central R. Co. v. 
 Mitten, 13 Tex. Civ. App., 653 ; Texas 
 &M. R. Co. V.Douglass, 73 Tex., 325; 
 Bigelow V. Railway Co., 48 Mo. App., 
 367; Chilton v. City of St. Joseph, 
 (Mo.) 3 Am. Neg. Rep., 690; Sidekum 
 V. Street Ry. Co., 93 Mo., 400, 4 S. W. 
 Rep., 701 ; Schmitz v. Railway Co., 119 
 Mo., 256, 23 L. R. A., 250 ; Ross v. City 
 of Kansas City, 48 Mo. App., 440 ; Con- 
 solidated Coal Co. V. Haenni, 146 111., 
 614 ; Illinois Centr. R. Co. v. Cole, 62 
 111. At)p., 480 ; Lake Shore & M. S. Ry. 
 Co. V.' Johnson, 135 111., 641 ; West Chic. 
 St. Ry. Co. V. James, 69 111. App., 609, 
 2 Am. Neg. Rep., 700; Chic, A. & 
 St. L. R. Co. V. Gomes, 46 III. App., 
 255; Cleveland, C. C. & I. R. Co. 
 V. Newell, 104 Ind., 264, 3 N. E. Rep., 
 836; Town of Wappanee v. Ruch- 
 man, 7 Ind. App., 361, 34 N. E. Rep., 
 609 ; standard Oil Co. v. Tierney, 92 
 Ky., 367, 36 Am. St. Rep., 595; Sher- 
 wood V, Railroad Co., 82 Mich., 374 ; 
 Spicer v. Railroad Co., 29 Wis., 580; 
 
 Stutz V. Railway Co., 73 Wis., 147, 9 
 Am. St. Rep., 769 ; Heddles v. Rail- 
 way Co., 77 Wis., 228, 20 Am. St. Rep., 
 106 ; Nichols v. Brabazon, 94 Wis., 945 ; 
 Kleigel v. Aitken,94 Wis., 432, 35 L. R. 
 A., 249 ; Waterman v. Chic. & A. Ry. 
 Co., 82 Wis., 613; 52 N. W. Rep., 247 ; 
 Propson v. Leatham, 80 Wis., 608; 
 Johnson v. Railway Co., 47 Minn., 
 430, 50 N. W. Rep., 473; Collins v. 
 Council BluflFs, 32 Iowa, 324; 7 Am. 
 Rep., 200; Raben v. Railway Co., 74 
 Iowa, 732, 34 N. W. Rep., 621; Miller 
 v. Boone Co., 95 Iowa, 5, 63 N. W. 
 Rep., 352; Hamilton v. Railway Co., 
 17 Mont., 334, 42 Pac, 860; Town- 
 send V. City of Paola, 41 Kan., 591, 
 21 Pac. Rep., 596; Cohen v. Railroad 
 Co., 14 Nev., 376; Whalen v. Rail- 
 road Co., 38 Fed. Rep., 15; Union 
 Pac. Ry. Co. v. Jones, 49 Fed. Rep., 
 343; Illinois Central Rd. Co. v. Da- 
 vidson, 76 Fed. Rep., 517; Eddy v. 
 Wallace, 49 Fed. Rep., 343; Wash- 
 ington, etc., R. R. Co. V. Harmon, 
 147 U. S., 571. In the last case 
 cited the court instructed the jury in 
 the following language, which the 
 Supreme Court approved, viz : "You 
 will in assessing damages take into 
 consideration the physical condition 
 he was in before the injuries in ques- 
 tion, the physical pain and mental 
 anguish if any you believe from the 
 evidence he is likely to suffer in the 
 future because of said injuries; to 
 what extent if any plaintiff's capacity 
 for earning a livelihood after his ma- 
 jority will be impaired by said inju- 
 ries, and you will return a verdict in 
 such sura as you believe to be just 
 and reasonable." 
 
i 46 BODILY PAIN AND SUFFERING. 70 
 
 future pain on account of a personal injury, where the 
 testimony showed that plaintiff had suffered continu- 
 ously since the accident from pains in her side and from 
 rheumatism, which she never had previous to the injury, 
 and which were attributed to the accident by her 
 physician. ' 
 
 § 46. Future Pain and Suffering Must be Reason- 
 ably Certain. The burden is upon the plaintiff to offer 
 such proof as will lay the foundation for a recovery. 
 There must be material or substantial evidence to sup- 
 port every allegation of damage. The jury are not per- 
 mitted to speculate or conjecture upon the evidence as to 
 the amount which should be awarded for the injury sus- 
 tained. For each element of damages there must be evi- 
 dence to authorize a jury to consider it, and to warrant a 
 finding for such a sum as is reasonable. As to the dam- 
 ages which have been sustained at the time of trial, satis- 
 factory proof can be obtained if there is any ground for 
 a recovery. The degree of proof as to future damages 
 should be of such a character and nature as to make it 
 reasonably certain that in the future there will be 
 expenses to be incurred, suffering and pain to be 
 endured, or loss of earnings to be sustained. The 
 injured person sliould not be required to furnish evi- 
 dence that will practically remove all doubt that there 
 will be pain and suffering in the future, or that its 
 effects are so apparent or so manifest at the time of trial 
 as to be absolutely certain of future pain and suffering. 
 The nature and extent of the injury may in many 
 instances determine this question without much evidence 
 or with very little diflBculty. If a person sustains a per- 
 manent injury to his ankle, hip joint, or back and spine, 
 there will be very little dispute but that he will suffer 
 pain in the future. If some disease or chronic ailment 
 be developed by the injury, the pain caused or to be 
 caused may or may not be apparent, and still there will 
 be more or less pain and suffering so long as the person 
 may live. 
 
 General Rule. Before the injured person is entitled 
 to recover anything for future physical pain and suffer- 
 ing it is necessary for him to establish by the evidence 
 
 1 Miller v. Steamboat Co., 25 N. Y. Supp., 924. 
 
71 
 
 . BODILY PAIN AND SUFFERING. 
 
 §46 
 
 that he is reasonably certain to suffer pain in the future 
 from the same injury, or the consequences thereof. 
 When he furnishes such evidence, the jury may assess 
 such reasonable compensation for such future pain and 
 suffering, as the evidence will justify/ 
 
 Different Ways of Stating the Rule. If the evidence 
 renders it reasonably certain that pain and suffering will 
 necessarily result from the injury, they may form an 
 element in estimating damages.' Pain and suffering 
 that may reasonably be expected in the future may be 
 considered in giving damages for personal injuries, if 
 the evidence shows that they will be experienced as a 
 result of the injury." 
 
 While future physical suffering is a proper element of 
 damages, yet the damages should be limited to such as 
 would result with reasonable certainty from the injury 
 complained of, and should not be left to mere conjec- 
 ture.* 
 
 ' Union Pac. Ry. Co. v. Jones, 49 
 Fed. Rep., 343; Kansas City, F. S. & 
 M. R. Co. V. Stoner, 49 Fed. Rep., 209, 
 1 C. C. A., 231; Illinois Cent. R. 
 Co. V. Davidson, 76 Fed. Rep., 517; 
 Holyoke v. Railway Co., 48 N. H., 541 ; 
 Aaron v. Railway Co., 2 Daley (N. 
 Y.), 127; Strohn v. Railroad Co., 96 
 N. Y., 305; Filer v. Railroad Co., 49 
 N. Y., 42; Koetter V. Street Railway 
 Co., 13 N. Y. Supp., 458 ; Cummings 
 V. Railway Co., 104 N. Y., 699; Feeny 
 V. Railroad Co , 116 N. Y., 375,32 N. 
 E. Rep., 402; O'Neil v. Kinken, 8 N. 
 Y. Supp., 554; Curtis v. Rochester 
 & S. R. Co., 20 Barb., 282 ; Bateman 
 V. Railroad Co., 47 Hun., 299; West- 
 ern & Atlantic R. R. Co. v. Young, 
 81 Ga., 379, 12 Am. St. Rep., 320 ; 
 Memphis v. Whitfield, 44 Miss., 466; 
 Cleveland, C. C. & I. R. Co. v. Newell, 
 104 Ind., 264, 3 N. E. Rep.. 836 ; Ohio 
 & M. Rd. Co. V. Cosby, 107 Ind., 32, 7 
 N. E. Rep., 373; Kerr v. Forgue, 54 
 111., 482, 5 Am. Rep., 146; Waterman 
 V. Railway Co , 82 Wis., 613, 52 N W. 
 Rep,, 247; Heddlesv. Railway Co., 77 
 Wis., 228,20 Am. St. Rep., 106; Block 
 V. Street Ry. Co.,89 Wis ,3 71, 46 Am. 
 St. Rep., 849 ; Raymond v. Keseberg, 
 91 Wis., 195; Stutz v. Railway Co., 73 
 Wis., 147, 9 Am. St. Rep,, 769; Smith 
 V. Exchange, 91 Wis., 360, 30 L. R-. A., 
 504; Ross v. Kinsas City, 48 Mo. 
 App., 440; Kendall v. Albia, 73 Iowa, 
 
 241 ; Fry v. Railway Co., 45 Iowa, 416 ; 
 Ivouisville & N. R. Co. v. Abell, 14 
 Ky. Law Rep., 339 ; Raben v. Rail- 
 way Co., 74 Iowa, 732, 34 N. W. Rep., 
 621 ; Hamilton v. Street Ry. Co., 17 
 Mont , 334, 42 Pac. Rep., 860 ; Hamil- 
 ton V. Street Ry. Co., 17 Mont,, 713, 
 43 Pac. Rep., 713. 
 
 2 Atlantic & W. P. R. Co. v. John- 
 son, 66 Ga., 259; Curtis v. Roches- 
 ter & S. R. Co., 18 N. Y., 534, 75 Am. 
 Dec, 258 ; Munaugh v. New York C. 
 & H. R. Co. 23 N. Y., S. R., 636 ; 
 Schuler v. Third Ave. R. Co., 17 N. 
 Y. Supp., 834; Raben v. Central Iowa 
 Ry. Co., 74 Iowa, 732, 34 N. W. Rep., 
 621. 
 
 'Feeney v. Railroad Co., 116 N. Y., 
 375,22 N. E, 402; Filer v. Railroad 
 Co., 49 N. Y., 42. 
 
 In Cleveland, C. C. & L R. Co. v. 
 Newell, 104 Ind., 264, it was held that 
 the jury might "take into considera- 
 tion all the consequences of the in- 
 jury, future as well as past, when the 
 proof before them renders it reason- 
 ably certain that future loss a"d suf- 
 fering are inevitable." This Wh.. ap- 
 proved in Ohio & M. Ry. Co., 107 
 Ind.. 32. 
 
 *Pry v. Railroad Co., 45 Iowa, 416 
 Curtis V. Railroad Co.,' 20 Barb. (N. 
 Y.), 282. 
 
 In Heddles v. Railway Co , 77 Wis., 
 228, the court approved the following 
 
§ 46 
 
 BODILY PAIN AND SUFFERING. 
 
 72 
 
 Improper Instructions. The charge which allows 
 the jury to assess damages for the pain and suffering 
 which the plaintiff "may endure hereafter, " and for the 
 loss of such time, "as the evidence convinces you she 
 will be likely to suffer hereafter " is too broad in its 
 terms, because it allows the jury to go into the field of 
 
 instruction : '• Adequate compensa- 
 tion for all of the physical and men- 
 tal pain and suffering which the 
 plaintiff suffered at the time of the 
 accident, which he has suffered since 
 that time, and which he is reasonably 
 certain to suffer in the future by rea- 
 son of his injuries." 
 
 In Kleigel v. Aitken, 94 Wis., 432, 
 it was held : " Then .she is entitled to 
 the damages for the pain and suffer- 
 ing which she has endured in the 
 past and which she may have to en- 
 dure in the future. But in order to 
 assess damages for the future, you 
 must be satisfied to a reasonable ex- 
 tent from the evidence that she will 
 continue to suffer." 
 
 In Scott V. Montgomery, 95 Ea. St., 
 444, the rule was stated in the follow- 
 ing language : " To include damages 
 not only for direct expenses incurred 
 by the plaintiff lor the injury, but al- 
 so for privation and inconvenience 
 that he will be subjected to, and for 
 the bodily pain and suffering he has 
 endured, and which he is likely to 
 experience, as well as the pecuniary 
 loss he has sustained and is likely to 
 sustain." 
 
 In Standard Oil Co. v. Tieruey, 92 
 Ky., 367, 36 Am. St. Rep., 595, it was 
 held that a plaintiff prevailing in an 
 action to recover damages for per- 
 sonal injuries is entitled to be 
 awarded such an amount as in the 
 opinion of the jury will fairly com- 
 pensate him for any suffering, mental 
 or physical, theretofore experienced 
 by him, directly resulting from the 
 injury, and for any suffering or dis- 
 ability that may be believed from the 
 testimony to be reasonably certain to 
 be experienced in the future. 
 
 In Illinois Central Railroad Co. v. 
 Davidson, 76 Fed Rep,, 517, the jury 
 were told that if they found that the 
 plaintiff's injuries were permanent, 
 they might in determining the 
 
 amount of damages consider " the 
 physical pain and suffering which the 
 plaintiff may have endured in the 
 past and is likely under the evidence, 
 if you so find, to endure in the 
 future." And also, " the time lost by 
 him in the past, or that may be lost 
 in the future, if any, and under all 
 the evidence determine," etc. The 
 court said: " The objections to these 
 propositions is that by the use_ of the 
 words 'likely' and 'may' the jury 
 were not restricted to the considera- 
 tion of such pain and loss of time as 
 were reasonably certain to occur. * 
 •» * We are not able to believe that 
 the jury were led to think that they 
 could go outside of the evidence to 
 infer consequences that were conjec- 
 tural or unwarranted. Things which 
 under the evidence are likely to hap- 
 pen are reasonably certain to happen 
 (Scott Tp. V. Montgomery, 99 Patt , 
 444) ; and the word ' may' used, as it 
 was, in the .same connection, was 
 probably understood in the same 
 way. Greater accuracy of expression 
 is of course always desirable." 
 
 In Hamilton v. Street Railway Co., 
 17 Mont., 713, 48 Pac, 713, an action 
 was brought for personal injuries, 
 and all the testimony as to future 
 disability consisted of the opinions 
 of medical experts. The court held 
 that it was proper to charge that dam- 
 ages could be awarded for such con- 
 sequences as are " reasonably likely " 
 to ensue in the future, and that plain- 
 tiffs may recover for all pain and 
 suffering which she has sustained, 
 or " in reasonable probability will 
 hereafter sustain." In Cameron v. 
 Union Trunk Line, 10 Wash., 507, 39 
 Pac, 128, a charge permitting a recov- 
 ery for such pain as plaintiff "will be 
 Ijkely to endure " is cured by a charge 
 limiting a recovery to such impair- 
 ment of health as has resulted and 
 will naturally result from the injuries 
 sustained.- 
 
73 
 
 BODILY PAIN AND SUFFERING. 
 
 46 
 
 probability instead of being confined to the field of rea- 
 sonable certainty.' A further reason might be added 
 that it allowed the jury to go into the field of speculation 
 or conjecture. There is no limitation placed upon the 
 jury in the consideration bo be given by them to the evi- 
 dence, upon the pain and suffering to be endured here- 
 after. 
 
 In the absence of evidence that the injury will cause 
 future pain, it is error to charge the jury that if they 
 believe that the plaintiff will suffer recurring pain they 
 should award damages therefor.'' 
 
 Proper Instructious. Where, in an action for an 
 injury to a child, the only evidence as to the nature of 
 the injury showed that hip disease had been occasioned 
 by it, and that the disease would be permanent, was held 
 to be proper to charge that "it is a fair inference from 
 the testimony that from the contusion resulted a. very 
 severe and probably incurable hip disease from which 
 the child may and probably will suffer to the day of his 
 death."' 
 
 1 Hardy v. Milwaukee Street Rail- 
 way Co., 59 Wis., 183, 61 N. W. Rep., 
 771. 
 
 In Block V. Street Railway Co., 89 
 Wis., 371, 61 N. W. Rep., 1101, the 
 following charge was held erroneous : 
 " I instruct you, gentlemen, that you 
 cannot take into consideration, as an 
 element of damages, any testimony 
 on the subject of the permanency of 
 the injuries, unless you find from the 
 testimony that there is reasonable 
 probability that the injury that he has 
 sustained, and the suffering and disa- 
 bility he is now under will be perma- 
 nent and lasting." The court said : 
 " The criticism is on the phrase ' rea- 
 sonable probability.' Because the 
 phrase is equivocal, it is liable to 
 communicate to the jury an erro- 
 neous impression that some degree 
 of proof less than of reasonable cer- 
 tainty may be sufficient. It is settled 
 in this court that the degree of proof 
 must amount to reasonable cer- 
 tainty." 
 
 In Raymond v. Keseberg, 91 Wis., 
 161, 64 N. W. Rep., 861, an instruc- 
 tion was given to the jury that the 
 plaintiff could recover for future dis- 
 ability, ana for bodily pain and suf- 
 
 fering which " he may have to endure 
 hereafter." This was held erroneous, 
 for the reason that the true rule was 
 that the recovery for future disability 
 must be limited to such as is "rea- 
 sonably certain to result from the in- 
 jury." 
 
 In Smith v. Milwaukee Builders' 
 and Traders' Exchange, 91 Wis., 360, 
 64 N. W., 1041, 30 Iv. R. A., 504, an 
 action was brought to recover dam- 
 ages for injuries sustained from a 
 brick falling on the head of the plain- 
 tiff from a building in process of con- 
 struction. The jury were instructed 
 on the subject of damages that the 
 plaintiff would be entitled to com- 
 pensation " for the pain and suffering 
 which she had endured and also for 
 the pain and suffering which it may 
 be likely or that there is a reasonable 
 probability that she will endure in 
 the future." The court held that 
 this was error for she is only entitled 
 to recover for such future pain as the 
 evidence shows that she is reasonably 
 certain to endure. 
 
 2 Bloom V. Manhattan El. R. Co., 17 
 N. Y. Supp., 812. 
 
 'O'Neill v.Kinken, 8 N. Y. Supp., 
 554, 55 Hun., 608. 
 
i 46 BODILY PAIN AND SUFFERING. 74 
 
 Where, in an action for personal injuries brought 
 twenty-one months after the accident, it appeared that 
 the plaintiff had suffered pains in her arm and side, and 
 had been under medical treatment ever since the acci- 
 dent, and that she had suffered from rheumatism which 
 she had never had before the accident, her physician hav- 
 ing testified as to her injuries and continual pain, and 
 attributed them and her rheumatism to the accident, it 
 was proper for the court to instruct the jury that they 
 might allow for future pain/ 
 
 A charge that plaintiff is entitled to damages for future 
 pain and suffering which flow clearly and logically from 
 the injury is proper where there is any evidence from 
 which the jury may fairly infer that the plaintiff will 
 endure pain and suffering to some extent after the trial/ 
 
 When it appeared that the plaintiff fell through a hole 
 in the dock and broke his leg, and at the trial two years 
 afterwards he still suffered pain and was unable to walk 
 without a cane, that his leg had become crooked at the 
 ankle, which was sore and swollen, that his leg was two 
 inches shorter than the other, and that he could not do a 
 day's workor earn his former wages, and a physician at the 
 trial testified that he examined the leg and found a sore- 
 ness in the foot and a tenderness in the ankle joint, the 
 court held that the evidence justified the court in charg- 
 ing that the jury might assess damages for future pain.' 
 
 Evidence Sufficient for Damages for Future Pain. 
 
 Damages for future pain and suffering are properly 
 allowable when based upon evidence showing that the 
 injury complained of caused an incurable spine disease, 
 and that from the time of the accident, the suffering of 
 the plaintiff had been continuous*; or, when the injured 
 person has suffered from the time of the injury up to the 
 time of the trial, and was then suffering to some extent, 
 even though there was no proof as to the length of time 
 during which such suffering would continue ' ; or, when 
 it appeared from the evidence of the attending surgeon, 
 one year after the accident, that the plaintiff would never 
 
 1 Miller V. Ft. Lee Park & Steam- ^ Propsom v. Leatham, 80 Wis., 608, 
 boat Co., i3 Hun., 150, 25 N. Y. Supp., 60 N. W. Rep., 586. - 
 ^^?' *Weiler v. Railway Co 6 N Y 
 
 2 Clarke v. Wescott, 37 N. Y. Supp., Supp., 320. ^ ' ' 
 
 ^^^^- * Union Pac. Rv. Co. v. Jones, 49 
 
 Fed. Rep., 343, 1 'c. C. A., 282. 
 
75 BODILY PAIN AND SUFFERING. 
 
 ? 46 
 
 recover the use of his arm, such evidence was sufficient 
 to justify the instruction that the jury might, in assess- 
 ing damages, compensate the plaintiflE for any permanent 
 injuries they might find that had been sustained; and for 
 the pain and anguish they may believe from the e adence 
 she would suffer in the future by reason of such injury. 
 But such instruction does not permit compensation for 
 suffering that might by some possibility or probability 
 attend the plaintiff in the future ;' where it appears from 
 expert testimony that the injuries are incurable and 
 might cause future suffering, damages may be allowed if 
 the jury find that there is a reasonable certainty that she 
 might suffer in the future from the injuries." 
 
 Where the injury was such that one foot had been 
 amputated, and that the wounds on the other were liable to 
 break out afresh at any time, and the foot could not be 
 used, the jury in assessing damages may take into con- 
 sideration the prospective suffering and loss of health of 
 the plaintiff.^ Where the injury is such that a second 
 amputation of the leg must follow, the jury may consider 
 and estimate the damages for the bodily pain and suffer- 
 ing of such an operation.* 
 
 It will be seen that the authorities are not harmonious 
 as to the language that maj^ be used in instructions to 
 the jury upon the question as to what evidence is required 
 entitling plaintiff to recover damages for future pain and 
 suffering, but they do not disagree very materially as to 
 the meaning of the language to be used. The weight of 
 the authority is that the evidence should show that it is 
 reasonably certain that the injured person will suffer 
 pain from the injury in the future ; or that future pain 
 and suffering are reasonably certain to result therefrom. 
 This may be shown by the testimony of the injured per- 
 son and from physicians, or from such facts and circum- 
 stances surrounding and connected with the injury that 
 it must be reasonably certain that future pain will neces- 
 sarily follow. A mere probability of its occurrence is 
 not enough.' 
 
 iBigelow V. street Ry. Co., 48 Mo. 135 111., 641 ; Chicago, A. & St. L. R. 
 
 App., 367. Co. V. Gomes, 46 111. App., 255. 
 
 "Koetter v. Railway Co. 13 N. Y., * Cummings v. Railway Co., 104 N. 
 
 Supp., 458. Y, 699. 
 
 ' L. S. & M. S. Ry. Co. V. Johnson, ' Strohn v. Railway Co., 96 N. Y., 305. 
 
?? 47-49 
 
 BODILY PAIN AND SUFFERING. 76 
 
 § 47. Probable Duration of Life. In actions for 
 damages for personal injuries it is proper, when the 
 physical and mental condition of the plaintiff have been 
 shown, for the jury, in estimating compensation for 
 future pain and suffering, to take into consideration the 
 probable duration of the life of the plaintiff.' 
 
 § 48. Compensation for Pliysical Pain, not Exem- 
 plary. Compensation which may be awarded for dam- 
 ages for bodily pain and suffering is not considered nor 
 given in the nature of exemplary or punitive damages, 
 but is awarded only as a reasonable recompense for one 
 of the natural and necessary results of the injury, and 
 for which the injured person is in no way responsible.^ 
 
 While exemplary damages are often awarded in actions 
 for personal injuries, the compensation for bodily pain 
 and suffering is distinct and separate. If the injured 
 person has suffered any bodily pain, compensation there- 
 for is independent of exemplary damages and is deter- 
 mined by itself, and when found is to be included in the 
 award for punitive damages. 
 
 § 49. Proof of Pain. While the burden of proof is 
 upon the plaintiff to sustain the allegations alleged in his 
 declaration, yet there are certain facts which when 
 shown, prove themselves, or are sufficient proof in them- 
 selves to establish certain conclusions or results which 
 naturally follow from such facts. If a person sustains 
 from an injury a broken leg or crushed arm, or loses an 
 eye, or receives a severe injury to his spine, it is a matter 
 of common knowledge that he will suffer pain therefrom. 
 Therefore it follows that it is unnecessary to prove in 
 some kinds of injuries, anything more than the kind and 
 extent of the injury received, in order to show that there 
 was bodily pain and suffering. Proof of the crushing and 
 mangling of the arm from the fingers up to within a few 
 inches of the shoulder, and of its subsequent amputation 
 at the shoulder, is sufficient evidence that the plaintiff 
 suffered pain, and he is not required to give further evi- 
 
 1 Waterman v. Railroad Co., 82 Rajlway Co., 48 N. H., 541 ; Brignoli 
 Wis., 613, 52 N. W. Rep., 247. v. Railroad Co., 4 Daly (N. Y.), 182; 
 
 2 Pennsylvania R. Co. v. Allen, 53 Morse v. Railroad Co., 10 Barb. (N. 
 Pa. St., 276; Pennsylvania R. Co. v. Y.), 621. 
 
 Books, 57 Pa. St., 339; Holyoke v. 
 
77 BODILY PAIN AND SUFFERING. § 50 
 
 dence that he suffered from such injury.'^ It is not nec- 
 essary to make specific proof of pain and mental anguish. 
 These elements of damages are suflQciently shown by the 
 evidence which discloses the nature, character' and 
 extent cf the injuries. From such evidence the jury may 
 infer bodily pain f and are authorized to assess damages 
 therefor/ In the Texas case cited, the court said: 
 "When a serious injury which threatens permanent dis- 
 ability and continues for a long time is proved, the jury 
 are authorized to consider the pain of body and mind in 
 assessing the amount of damages, without direct proof 
 of suffering."* 
 
 § 50. Recovering for Pain When Deatli Occurs. 
 
 When a person receives an injury and lives for a time, 
 the question arises, has his legal representative a right 
 to maintain an action for damages, and if so, what ele- 
 ments of damages ma}- be considered in assessing dam- 
 ages ? It sometimes occurs that an injured person dies 
 after he has instituted an action, before a trial thereof. 
 In that event the same questions arise. Whether the 
 legal representative of his estate can maintain an action, 
 already begun, depends upon the statute of the state 
 where the injury occurred. If by the statute such a 
 right of action survives, the same may be commenced by 
 or revived in the name of the legal representative, and 
 may be prosecuted to a final determination for the bene- 
 fit of the estate of such deceased person and the damages 
 when recovered will be distributed according to law. 
 When such action does survive, whether compensation 
 for bodily pain and suffering can be recovered, will 
 depend upon the statute of the state, for at the common 
 law such right of action did not survive, but abated with 
 the death of the injured person. There are, however, a 
 few states where such right of action survives. Where 
 
 1 Chic B & Q. R. Co. v. Warner * See Pennsylvania R. Co. v. Wil- 
 
 108 111.,' 538; 18 Am. & Eng. R. son, Fa. Sup. Ct., January 20, 1890, 
 
 cases 100 where it is held that when the evi- 
 
 ' „ ., J ^ nn ^T dence shows that the leg of the 
 
 2Brown v. Railroad Co., 99 Mo., plaintiff was broken and that he suf- 
 
 310, 48 Am. & Eng. R. cases, 87; fers pains in his head, it is proper to 
 
 Bvansville & T. H. R. Co. v. Guyton, instruct the jury that he is entitled 
 
 115 Ind., 450, 17 N. E. Rep., 101; to compensation for the pain he has 
 
 Texas & Pac. R. Co. v. Curry, 64 gufj-gred and the injury sustained— 
 
 Tex., 85, 21 Am. & Eng. R. cases, ^^^ jf the jury find the injuries to 
 
 448. be permanent, that fact must be con- 
 
 ' Brown v. Sullivan, 71 Tex., 470. sidered in estimating the damages. 
 
§ 51 BODILY PAIN AND SUFFERING. 78 
 
 it does survive, one of the elements of damages to be con- 
 sidered, is that of bodily pain and suffering which the 
 injured person endured from the time of the accident up 
 to the date of his death/ 
 
 In Kentucky the personal representative having the 
 right to sue for the deceased's pain and suffering, or to 
 sue for the death, must elect between the two causes of 
 action.' 
 
 In Corliss v. Railroad Co., 63 N. H., 404, it was held 
 that the ordinary grounds of damage are the expense of 
 board, nursing, medical aid, compensation for loss of 
 time, physical and mental pain including such sum as the 
 jury think ought to be given for the distress and anxiety 
 of mind in view of approaching death, while in imminent 
 danger from the injury received, and to the close of life. 
 In the states of California, Connecticut, Delaware, Kan- 
 sas, Kentucky, Louisiana, Massachusetts, Mississippi, 
 New Hampshire, Oregon, South Dakota, Tennessee and 
 Wisconsin, it is held that damages for pain and suffering 
 endured by the injured person before his death and after 
 the accident, may be recovered. But this action must be 
 brought in the name of the legal representative of the 
 estate of the deceased, and is distinct and independent 
 of the right of action given by statute for pecuniary loss 
 to the next of kin or to those dependent upon him for 
 support. In the former case, the damages belong to the 
 estate.' 
 
 § 51. Expert or Opinion Testimony as to Dam- 
 ages. The testimony or opinion of witnesses as to the 
 amount of damages is inadmissible. This principle may 
 be regarded as the settled rule of law. There is a marked 
 distinction between the value of property which has some 
 fixed or marketable value, and the amount of damages 
 which an injured person is entitled to recover on account 
 of some negligent act. In the former case, expert testi- 
 mony or opinion of witnesses may be received, but in the 
 
 1 Corliss V. Railroad Co., 63 N. H., Co. v. Collins, 6 Heisk. (Teiiu)174- 
 
 404; Atchmson, etc.R.Co. v. Rowe, See Philo v. Railroad Co., S3 Iowa. 
 
 56 Kan., 411; Murphy v. Railroad 47 
 
 Co., 29 Conn., 496 ; Maher v. Trac- ,^ „ , ,„ 
 
 tion Co., 181 Pa. St., 391; Nashville, Conner v. Paul, 12 Bush., (Ky.) 144. 
 
 ^!^' ^; ^k '^°- "'■ ^■■i°<=e, 2 Heisk. ' See post, Ch. 20, where this ques- 
 
 (Tenn.), 580; Nashville, etc., R. R. tion is further discussed. 
 
79 BODILY PAIN AND SUFFERING. ? 52 
 
 latter such evidence is clearly incompetent for the rea- 
 son that the witness is invading, the province of the 
 jury/ 
 
 Witnesses, whether experts or not, cannot express an 
 opinion as to the amount of damages resulting from an 
 injurj^, but are confined to a description of the injury. It 
 is the duty of the jury to estimate the damages from the 
 facts proven, as to the extent, charactei' and nature of 
 the injury. Hence it follows that there can be no direct 
 proof in regard to the estimate of damages for physical 
 suffei'ing and pain, and no witness should be allowed to 
 express his opinion on the question." In Hart v. Rail- 
 way Co., 9i Mo., 252, 34 Am. & Eng. Railroad Cases, 422, 
 an action by a parent to recover damages for injuries 
 whichdisabledhis minor cliild, it was held that tlie plaintiff 
 could not give his opinion of the amount he was damaged 
 by reason of the injuries, taking into consideration the 
 loss of his child's work until he is twenty-one, and the 
 trouble and expense to which he had been, and would be 
 in the future, in caring for the child. Also the case of 
 Blair v. Railroad Co., 20 Wis., 262, illustrates this propo- 
 sition. A member of a mercantite firm had been injured 
 by the negligence of a railroad company, the injur v caus- 
 ing his enforced absence from the firm. It was held that 
 his partner, testifying as a witness, could not be allowed 
 to state his opinion as to the amount of damages the firm 
 had sustained by reason of that absence.' 
 
 § 52. Exclamations of Pain and Suffering by In- 
 
 iured Party. Sometimes it may be difficult to prove 
 the extent of pain and suffering which ;in injured person 
 may endure, except by tbe statements of such person to 
 other parties during the time of such suffering. As has 
 been stated, there are certain injuries which show for 
 themselves that the injured person must have suffered 
 pain. In such cases the jury are to apply a httle ordi- 
 nary common sense in estimating and awarding damages 
 for physical pain and suffering. In other cases, the sut- 
 
 /Watters v. Railway Co., 44 Mo. 4pS-3o'f ^^„-,f ^ E.Je^t ^Te^tt 
 
 App., ^45. n,!;^ Sec. 154, 2nd ed; Cleveland and 
 
 2 Anderson v. Railway & Depot pjjt/uVir? Railroad Co. v. Ball, 5 O. 
 
 Co., Utah, 30 Pac. Rep., 305; Chicago ^^ ^es- A &G. Railroad Co. v. 
 
 P. & St. L. Railway Co. v. Lewis, 4» Campbell, 4 O. St., f'83 ; Shepard v. 
 
 111. App., 274. Willis, 19 Ohio, 142. 
 
^ 52 BODILY PAIN AND SUFFERING. 80 
 
 fering must be shown by the testimony of the injured 
 person, and exclamations of pain and suffering made in 
 the presence of or to other persons. These exclamations 
 may be divided into three classes, to-wit : 
 
 Fi/rst. Exclamations made to others at the time or 
 subsequent to the injury, but relating to pain and suffer- 
 ing endured at that time, and which, in point of time, are 
 * exclamations of past pain and suffering. 
 
 Second. Exclamations made to the physician who 
 examined and prescribed for the injured person while 
 suffering from such injury, and relating to pain and suf- 
 fering endured in the past and in the present. 
 
 Third. Exclamations of the injured party with regard 
 to present or existing pain and suffering, and witii regard 
 to the present condition of body and mind. 
 
 It must be bo7'ne in mind that there is a distinction 
 between declarations made by the party at or about the 
 time of the accident, as to how it may have occurred, and 
 exclamations made by the injured person as to the pain 
 and suffering caused and endured on account of the injury. 
 The former are known as i'es gestae, and must be made 
 almost instantaneously, or contemporaneous with the 
 accident, in order to be received.^ They are received in 
 evidence because they form part of the res gestae ; but 
 declarations made after a lapse of time, either by the 
 injured person or by those responsible for the same, being 
 descriptive of the accident or its cause, are not admissi- 
 ble because they are mere hearsay or a narration of some 
 past act or event. Exclamations of pain are received in 
 evidence, not as hearsay, but for the reason that they are 
 the natural and ordinary accompaniments and expres- 
 sions of suffering. And without them it would be diffi- 
 cult to prove the character and extent of the pain and 
 suffering endured by the injured person. 
 
 First. Exclamations of pain and suffering made to 
 others by the injured person at the time or subsequent to the 
 injury, but which are exclamations of past pain and suf- 
 fering. 
 
 The authorities differ as to whether exclamations of 
 pain and suffering made in the past are admissible. The 
 weight of authority seems to be that they are admissible, 
 
 1 Pierce, Receiver, v. Van Dusen, 24 C. C. A., 280, 7» Fed. Rep., 693. 
 
81 
 
 BODILY PAIN AND SUFFERING. 
 
 52 
 
 if they relate simply to the pain and suffering then endured. 
 If they relate to the facts or surroundings of the 
 injury, or to the cause of the suffering, they are not 
 admissible/ 
 
 Evidence of the exclamations of a party with regard to 
 past suffering or pain, or past condition of body and mind 
 is not admissible by the following courts : ^ 
 
 The following authorities, however, hold that exclama- 
 tions made at the time of the accident, or subsequent to 
 it, in relation to pain and suffering are admissible as 
 showing the existence of such suffering and the char- 
 acter and extent of the injury." 
 
 ' Rossa V. Boston Loan Co. 132 
 Mass., 439 ; Morrisey v. Ingham, 111 
 Mass., 63; Illinois Central R. Co. v. 
 Sutton, 42 111., 438 ; Collins v. Waters, 
 54 111., 485. 
 
 2 Grand Rapid & I. R. Co. v. 
 Huntley, 38 Mich., 537 ; Reed v. Rail- 
 way Co., 45 N. Y.,574 ; Inhabitants of 
 Ashland v. Inhabitants of Marl., 99 
 Mass , 48 ; Insurance Co. v. Mosely, 8 
 Wall., 397, 405; Laughlin v. Street Ry. 
 Co., 80 Mich., 154, 44 N. W. Rep., 
 1049, where the exclamations were 
 made more than iour years after re- 
 ceiving the iniuries. Roche v. Rail- 
 way Co., 105 N. Y., 2H4; IIN.E.,630; 
 Ferguson v. Davis County, 57 Iowa, 
 601; Winter v. Railway Co., 74 Iowa, 
 448, 38 N. W. Rep., 154. 
 
 = St. Louis & S. F. Ry. Co. v. Mur- 
 ray, 55 Ark., 248, 18 S. W. Rep., 50, 29 
 Am. St. Rep., 32, 16 L. R. A., 787 ; 
 Saunders v. Reister, 1 Dak., 151, 46 
 N. W. Rep., 680 ; Town of Elkhart v. 
 Ritter, 66 Ind., 136; Sturgeon v. 
 Sturgeon, 4 Ind. App., 232, 30 N. E. 
 Rep., 805 ; Chic, St. L. & P. R. Co. v. 
 Spilker, 184 Ind., 380, 33 N. E. Rep., 
 280; Cleveland, C , C. & I. R. Co. v. 
 Prewitt, 134 Ind., 557, 33 N. E. Rep., 
 367 ; Cleveland, C, C. & I. R. Co. v. 
 Newell, 104 Ind., 264, 3 N. E. Rep., 
 8.36 ; fackson Co. Comrs. v. Nichols, 
 139 Ind., 611, 38 N. E. Rep., 526; 
 Bennett v. Railroad Co., 2 N. Dak., 
 112, 49 N. W. Rep., 408, 13 L. R. A., 
 465 ; Brooklyn St. R. Co. v. Kelley, 3 O. 
 C. D., 393, 6 0.C. C.,155; Kennardv. 
 Burton, 25 Me., 39, 43 Am. Dec, 249 ; 
 Houston & T. C. R. Co. v. Shafer, 54 
 Tex., 641 ; Bridge v. City of Oshkosh, 
 
 67 Wis., 195, 29 N. W. Rep., 910. In 
 Harris v. Railway Co., 76 Mich., 227, 
 42 N. W. Rep., 1111, it was held that 
 evidence of exclamations of pain 
 made by plaintiff shortly after she re- 
 ceived injuries complained of is ad- 
 missible as a part of the res gestae. 
 And in Strudgeon v. Sand Beach, 107 
 Mich., 496, 65 N. W. Rep., 616, ex- 
 clamations of pain made by the child, 
 who had received the injury, during 
 the pendency of the action, while at 
 home, was admissible. The case of 
 Grand Rapids &I.R. Co. v. Huntley, 
 38 Mich., 537, holds, however, that 
 exclamations of pain and suffering 
 may be admissible when it appears 
 that they are the natural and ordi- 
 nary expressions called out without 
 any purpose, or in the course of medi- 
 cal treatment ; but exclamations of 
 past pain and suffering are inadmis- 
 sible, especially when made for the 
 very purpose of creating proof, and 
 not under ordinary circumstances. 
 In Caldwell v. Murphy, 8 Super. Ct. 
 (N. Y.), 233, it was held that exclama- 
 tions of pain and suffering at differ- 
 ent times subsequent to the injury 
 is competent to show the extent of 
 the damage done. Affirmed 11 N. Y. 
 (1 Kern), 416. The same rule was 
 laid down in Murphy v. Railroad Co., 
 66 Barb., 125, and the length of time 
 that had elapsed between the acci- 
 dent and the exclamation was a proper 
 subject for consideration by the jury. 
 But these decisions were overruled in 
 Roche V. Railway Co., 105 N. Y., 294, 
 for the reason that under the code 
 the plaintiff could now testify to the 
 
?52 
 
 BODILY PAIN AND SUFFERING. 
 
 82 
 
 Second. Exclamations of -pain and suffering made to 
 the surgeon or 'physician while suffering from the injury 
 both past and present. The authorities are nearly uniform, 
 if not entirely so, in holding that the physician who 
 examines an injured person at the time of the injury, and 
 at subsequent times, up to the trial, may testify as to 
 exclamations of pain and suffering made by such injured 
 person when undergoing any physical examination for 
 treatment of the injury received or for the purpose of 
 determining whether such injury be permanent or not/ 
 
 pain and suffering caused by the in- 
 jury, while he could not previous 
 thereto, and hence the rule that these 
 exclamations could be shown by the 
 testimony of third persons, became 
 obsolete or unnecessary. The deci- 
 sion, however, only goes to the ex- 
 tent of holding mere declarations of 
 pain and suffering inadmissible, and 
 affirms the rule laid down in Hagen- 
 locher v. Railroad Co., 99 N. Y., 136, 
 1 N. E;. Rep., 536, that evidence that 
 after the receipt of the injury the 
 plaintiff manifested pain and suffer- 
 ing by shrieks, groans and screams, 
 is admissible in corroboration of the 
 testimony of the plaintiff as to her 
 injuries and sufferings, the court 
 using this language : ' Screaming 
 or some similar exclamation is the 
 natural language of pain in all men, 
 and in all animals as well. It usu- 
 ally and almost invariably accom- 
 panies intense pain, and hence such 
 exclamations have always been re- 
 ceived as competent evidence tending 
 to show suffering." Citing Caldwell 
 V. Murphv, 11 N. Y., 416 ; Werely v. 
 Persons, 28 N. Y., 344 andMatteson v. 
 Railroad Co., 35 N.Y., 487. In Roche 
 V. Railroad Co , supra, when mere 
 declarations of pain are held inad- 
 missible. The court, in relation to 
 groans and screams, says : " Evidence 
 of exclamations, groans and screams is 
 now permitted, more upon the ground 
 that it is a better, clearer and more 
 vigorous description of the existing 
 physical condition of the party by an 
 eye witness than could be given in 
 any other way. It characterizes and 
 explains such condition. Thus it was 
 shown, in that case that the foot 
 was very much swollen, and so 
 sore that the sheet could not touch 
 
 it. How was the condition of sore- 
 ness to be shown better than by the 
 statement, that when so light an ar- 
 ticle as a sheet touched the foot, the 
 patient screamed with pain ? It was 
 an involuntary and natural exhibition 
 and proof of the existence of intense 
 soreness and pain therefrom. True, 
 it might be simulated, but this possi- 
 bility is not strong enough to out- 
 weigh the propriety of permitting 
 sucli evidence as fair, natural and 
 original corroborative evidence of the 
 plaintiff as to his then physical con- 
 dition." 
 
 ' Northern Pac. R. Co. v. TJrlin, 158 
 U. 3. , 271 ; Union Pac. R. Co. v. 
 Novak, 61 Fed. Rep., 573; 9 C. C. A., 
 629, Birmingham Union Ry. Co. v. 
 Hale, 90 Ala., 8, 24 Am. St. Rep., 748; 
 Wilson v. Town of Granby, 47 Conn., 
 59, 36 Am. Rep., 51 ; Illinois Centr. 
 R. Co. V. Sutton, 42 111., 438, 92 Am. 
 Dec, 81 ; Cleveland, C. C. & I. R. Co. 
 V. Newel), 104 lud., 264, 3 N. E. Rep., 
 836. 54 Am. Rep., 312 ; Louisville, N. 
 A & C. R. Co. V. Wood, 113 Ind., 544, 
 14 N. E. Rep., 572 ; Wabash Co. v. 
 Pearson, 120 Ind., 426, 16 Am. St. Rep., 
 325, 22 N. E. Rep., 134, Aryman v.' 
 Marshalltown, 90 Iowa, 350, 57 N. W. 
 Rep., 867; Fay v. Harlan, 128 Mass., 
 244, 35 Am. Rep., 372 ; Ashton v. City 
 Ry. Co., 78 Mich., 687 ; Brusch v. Rail- 
 way Co., 52 Minn., 512. 55 N. W. Rep., 
 57 ; Matteson v. Railroad Co., 62 
 Barb., 364 ; Pullman Palace Car, Co. v. 
 Smith, 79 Tex , 468, 14 S. W. Rep., 
 993, 23 Am. St. Rep.. 356, 13 L. R. 215 ; 
 Bridge v. Oshkosh, 67 Wis., 195,29 N. 
 W. Rep., 910; Bridge v. Oshkosh, 71 
 Wis., 363, 37 N. W. Rep., 409; King v. 
 Oshkosh, 75 Wis., 517, 44 N. W. Rep., 
 745. 
 
83 
 
 BODILY PAIN AND SUFFERING. 
 
 ? 52 
 
 Exception to the rule. But a physician cannot testi fy 
 as to exclamations and declarations of pain and suffering 
 made by an injured person on an examination had before 
 or after the commencement of an action and made with 
 the view and for the purpose of giving the same in evi- 
 dence on the trial. ^ 
 
 If such statements are not free from suspicion that 
 they were made under circumstances and in view of liti- 
 gation, they are not admissible.' 
 
 A physician may testify as to statements made by the 
 plaintiff as to his symptoms while he was being physically 
 examined, where the examination was not made for the 
 purpose of enabling the physician to testify on the trial.' 
 
 Third. Exclainations of an injured person with regard 
 to present and existing pain and sufferhig may he shown by 
 the persons who heard them.'' 
 
 'Grand Rapids & I. R. Co. v. Hunt- 
 ley, 38 Mich., 537, 31 Am. Rep., 321 ; 
 Jones V. Portland, 88 Mich., 598, 50 
 N. W. Rep., 731, 16 L. R. A., 437; 
 Stewart v. Everts, 76 Wis., 3.5, 44 N. 
 W. Rep., 1092, 20 Am. St. Rep., 17 ; 
 Abbot V. Heath, 84 Wis., 314, 54 N. W. 
 Rep., 574. 
 
 2 Illinois Centr. R. Co. v. Sutton, 
 24 111., 438,92 Am. Dec, 81. 
 
 'Block V. Railway Co., 89 Wis., 
 371, 61 N. W. Rep., 1101, 46 Am. St. 
 Rep., 849, 27 L. R. A., 365. 
 
 * City of Bloomington v. Osterle, 
 139 III., 120, 28 N. E. Rep., 1068; Car- 
 thage Turnpike Co. v. Andrews, 102 
 Ind., 138, 1 N. E. Rep., 364, 52 Am. 
 Rep., 653 ; Louisville, N. A. & C. R. 
 Co. V. Falvey, 104 Ind., 109, 3 N. E. 
 Rep., 389; Louisville, N. A. & C.R. 
 Co. V. Miller, 141 Ind., 533. 37 N. E. 
 Rep., 343 ; Anderson v. Street Ry. Co., 
 12 Ind. App., 194, 38 N. E. Rep., 1109 ; 
 Island Coal Co. v. Risher, 13 Ind. 
 App., 98, 40 N. E. Rep., 906 ; Lacas v. 
 Railroad Co., 92 Mich., 412, 52 N. W. 
 92 Rep., 745 ; Girard v. Kalamazoo, 
 Mich., 610, 52 N. W. Rep., 1021; 
 Firkins v. Railway Co., 61 Minn., 61, 
 63 N. W. Rep., 172; Bennett v. Rail- 
 road Co., 2 N. D., 112, 49 N. W. Rep., 
 408, 13 L. R. A., 465; Houston & T. 
 C. R. Co, v. Shafer, 54 Tex., 641, 6 Am. 
 & Eng. Rd. Cases, 421 ; Atchison, T. 
 & S. F. R. Co. V. Johns, 36 Kan., 769 ; 
 Insurance Co. v. Mosely, 8 Wall. (U. 
 
 S.), 897; Hatch V. Fuller, 131 Mass., 
 574; Illinois Central R. Co. v. Sut- 
 ton, 42 111., 438; Collins v. Waters, 54 
 111., 585. 
 
 In Atchison, T. & S. F. R. Co. v. 
 Johns, 36 Kan., 769, the court says : 
 " We think, however, wherever evi- 
 dence is introduced to show a real 
 injury or a real cause for suflFering or 
 pain, as in this case, the declaration 
 of the parties concerning such suffer- 
 ing or pain, while it exists, and as sim- 
 ply making known an existent fact, 
 should be allowed to go to the jury 
 for what they are worth, and the jury 
 in fuch a case should be allowed to 
 weigh them and to determine their 
 value. If they are made to a physi- 
 cian or surgeon while he was exam- 
 ining the party as a patient for the 
 purpose of medical or professional 
 treatment, and for that purpose only, 
 the declaration would be of great 
 value. If, however, they were made 
 at any other time or under any other 
 circumstances, they might not be of 
 such great value. If made casually 
 to some perfon not a physician, and 
 with whom the party had no particu- 
 lar relations, they might possibly in 
 some cases be of little or no value, 
 vet generally they should be permit- 
 ted to go to the jury," citing author- 
 ities. 
 
 In Cleveland, C. C. & I. R. Co. v. 
 Newell, 104 Ind., 264, the court says: 
 
52 
 
 BODILY PAIN AND SUFFERING. 
 
 84 
 
 " Counsel for appellant insists that 
 exclamations of pain, in order to be 
 admissible in evidence, must be con- 
 temporaneous with the alleged in- 
 jury, and the then existing facts, and 
 that they must not have been made 
 before sufficient time elapsed to en- 
 able the person making them to 
 form plans for future lavysuits. They 
 insist further that they must have 
 been made ante liiam motam, not 
 only before suit brought, but before 
 the controversy existed in form. 
 In a general sense and as applicable 
 to a diflFerent class of cases, the rule 
 as stated by counsel is approximately 
 correct. When it becomes important 
 to illustrate the mental or physical 
 condition of an individual, either at 
 the time the injury is received, or 
 from thence to the time of in- 
 quiry, as to its effect, severity and 
 nature, we think expressions or dec- 
 larations of present existing pain or 
 malady, whether made at the time 
 the injury is received or subsequent 
 to it are admissible in evidence," cit- 
 ing authorities. 
 
 " Expressions of present existing 
 pain, and of its locality are excep- 
 tions to the general rule which 
 excludes hearsay evidence. They 
 are admitted upon the ground 
 of necessity, as being the only 
 means of determining whether pain 
 or suffering is endured by an- 
 other. Whether feigned or not is a 
 question for the jury. Such declara- 
 tions and expressions are competent, 
 aegardless of the person to whom 
 they are made. They are especially 
 
 competent and of more weight when 
 made to a physician for the purpose 
 of receiving treatment, or to a medi- 
 cal expert who makes an examination 
 at the request of the opposite party 
 or by direction of the court, for the 
 purpose of basing an opinion upon 
 as to the physical situation of a per- 
 son whose condition is the subject of 
 inquiry. Quaife v. Railway Co., 48 
 Wis., 513,4 N. W. Rep.,658; Railway 
 Co. V. Frazier, 27 Kan., 463. It is 
 only when such declarations assume 
 the form of a narrative of past exper- 
 ience of suffering, or of a relation of 
 the cause and manner of the injury, 
 or when they are made ante litam 
 motam to one not an attending phy- 
 sician or a medical expert under the 
 conditions above mentioned, that 
 their admissibility becomes the sub- 
 ject of serious discussion. Statements 
 of past sufferings and pains, when 
 not made to a medical expert for the 
 purpose of enabling him "to form an 
 opinion upon, with view to a treat- 
 ment or other legitimate purpose, are 
 clearly inadmissible. Roosa v. Bos 
 ton Loan Co., 132 Mass., 439 ; Bacon 
 V. Charlton, 7 Cush., 581. * * » 
 A physician may, however, testify to 
 a statement or narrative given by a 
 patient in relation to his condition, 
 symptoms, sensations and feelings, 
 both past and present, when such 
 statements were received during and 
 were necessary to an examination, 
 with a view to a treatment, or where 
 they were necessary to enable him to 
 give his opinion as an expert wit- 
 
85 
 
 diminishe;d earning capacity. 
 
 53 
 
 CHAPTER VI. 
 
 DIMINISHED EARNING CAPACITY. 
 
 Sec. 
 53. 
 54. 
 55. 
 
 56. 
 
 57. 
 58. 
 59. 
 
 Ivoss of Earning Power. 
 
 Proof of Loss of Earning Power. 
 
 Evidence of Loss of Earning 
 Power. 
 
 Evidence of Diminished Capa- 
 city to Follow Ordinary Oc- 
 cupation. 
 
 Earnings since Injury. 
 
 Line of Promotion. 
 
 Diminished Earning Capacity, 
 How Computed. 
 
 Sec. 
 
 60. 
 
 61. 
 
 62. 
 
 63. 
 
 64. 
 
 65. 
 66. 
 
 Mortality Tables. 
 
 Expert Testimony. 
 
 Profits. 
 
 Actions for Two Personal Inju- 
 ries—Permanent Disability 
 in Each Case. 
 
 Impairment or Destruction of 
 Prospects of Marriage. 
 
 Damages for Injury to Health. 
 
 Damages Where no Intent to 
 Harm. 
 
 § 53. Loss of Earning Power. A person who 
 recei-ves an injury for which some other person is liable 
 is entitled to recover the damages which he has sustained. 
 The character and extent of the injury are important 
 factors in the consideration of a personal injury and the 
 damages to be awarded. As it has been settled that an 
 injured person can not split up a cause of action for dam- 
 ages, and bring separate suits for different elements of 
 damages, but must recover his damages in a single action, 
 it becomes important to know and to show on the trial 
 the full extent and effect of the injury, and the entire 
 amount of damages which have been sustained. To do 
 this it is necessary to prove in what way the injury has 
 affected the injured person. It is the effect of an injury 
 which measures and determines the amount of damages, 
 for the wrongdoer is liable for the consequences of his 
 negligent or wrongful act, whether compensated or not, 
 which are the natural results thereof.' 
 
 'Louisville Southern R. Co. v. Min- 
 ogue, 90 Ky., 369, 29 Am. St. Rep., 
 378; Schumaker v. Railroad Co., 46 
 Minn. 39, 12 L. R. A., 257 ; CHflFotd v. 
 Railroad Co., 9 Colo., 333; Hill v. 
 Winsor, 118 Mass., 251 ; Vosburg v. 
 Putney, 80 Wis., 523, 27 Am. St. Rep., 
 47, 14L.R.A.,226; McNamara v. Clin- 
 
 tonville, 62 Wis., 507, 51 Am. Rep., 
 722; Brown v. Railway Co., 54 Wis., 
 342; Rutherford v. Railway Co., 41 
 La. Ann. 793 ; Ehrgott v. Mayor, 96 N. 
 Y., 280 ; Smefhurst v. Proprietors of 
 Independent Cong. Church, 148 
 Mass., 261, 2 L. R. A., 695; Fell v. 
 Railway Co., 44 Fed. Rep., 248. 
 
i 53 DIMINISHED EARNING CAPACITY. 86 
 
 The effects of an injury cannot always be determined 
 at the time when it was received. It may be slow in its 
 development or difiBcult to determine at first how serious 
 the consequences of the injury may be. A speedy and 
 complete recovery may be had from a severe injury, 
 while an apparently slight injury may produce serious 
 results. The injury may disable the person so that it may 
 prevent him from doing more than a part of that which he 
 was able to do before the injury; or it may prevent him 
 from ever being able to do any work or to earn any 
 money. It may cause partial disability at first, and at 
 some subsequent period total disability to work or earn 
 remuneration. Total diasabilty may occur in a short 
 time or it may be several years before it manifests itself. 
 In either event it generally remains or continues to abide 
 with the injured person throughout the balance of his life. 
 
 It is the effect of the injury upon the person to work or 
 to earn money that becomes often a disputed question on 
 the trial of a case. How seriously and how permanently 
 has the injury affected the capacity or abilit}^ of the per- 
 son to work or follow his occupation? However slight or 
 however serious, whatever depreciation thei-e may be in 
 the earning capacity of the person the law recog-nizes as 
 a basis for a claim for damages. If the injury has disa- 
 bled or will disable, whoU)- or partially, the plaintiff from 
 working or from earning money in his occupation, trade, 
 business, or profession, he is entitled to recover such an 
 amount as will be a fair and reasonable compensation for 
 such loss of power to labor and work or incapacity to earn 
 money. Such dimiaished earning capacity constitutes 
 and is a recognized element of damages.' 
 
 1 District of Columbia v. Woodbury, 236 ; Saldana v. Railway Co. 43 Fed. 
 136 U. S., 450 ; Vicksburg & M. R. Co., Rep.. 862 ; Baltimore & O. R. Co. v. 
 V. Putnam, 118 U. S., 546; Nebraska Henthorne, 73 Fed. Rep., 634; La- 
 City V. Campbell, 67 V. S., 590; Rob- lourche Packet Co. v. Henderson, 94 
 erts V. Graham, 6 Wall, 578; Wash- Fed. Rep., 871, 36 C. C. R., -519; South 
 ington & G. R. Co. v. Harmon, Admr., & N, A. R. Co. v. Mc Lenden, 63 Ala., 
 147 U. S., 571 ; Totten V. Railway Co., 266; Alabama, G. S. R. Co. v. Yar- 
 11 Fed, Rep., 564; Fuller v. Citizens brough, 83 Ala., 238, 3 Am. St. Rep., 
 National Bank, 15 Fed. Rep., 880; 715. Alabama G. S. R. Co. v Frazier, 
 Anthony v. Railway Co , 27 Fed Rep., 93 Ala., 45, 30 Am. St. Rep., 28 ; Sea- 
 724; Davidson v. Railroad Co., 44 hoard Mfg. Co. v. Woodson, 98 Ala., 
 Fed. Rep., 476; Whelan v. Railway 378, 11 South Rep., 733, St. Louis, I. 
 Co., 38 Fed. Rep., 15; Hamilton v. M. & S. R. Co. v. Cantrell, 37 Ark., 
 Brantfoot, 48 Fed. Rep., 914; Harris 519, 40 Am. Rep., 105- TreadweU v. 
 V. Railway Co., 13 Fed, Rep., 591; Whittier. 80 Cal.,574, 13 Am. St. Rep., 
 Secord v. Railway Co., 18 Fed. Rep., 175; McKeever v. Railway Co.,59 Cal. 
 
87 
 
 DIMINISHED EARNING CAPACITY. 
 
 ? 53 
 
 Diminished Earning Capacity, means the loss of 
 strength or loss of power which the physical or mental 
 infirmity takes from the injured person, wholly or par- 
 tially preventing him from doing and accomplishing what 
 he would have been able to have done and accomplished 
 had he not been injured to the extent and in the manner 
 in which he was. If the injury is permanent, it means 
 the difference in the earning capacity, or in a person's 
 
 294; Clare v. Sacramento, E.P.& L.Co., 
 122 Cal., 504, 55 Pac.Rep., 326; Roche v. 
 Reddington, 125 Cal., 174, 57 Pac. Rep., 
 890; Wall v. Livezay, 6 Colorado, 465 ; 
 Segur V. Town of Barkhamsted, 20 
 Conn., 290; Mills v. Railway Co., 1 
 Marv. (Del.), 269 40 Atl. Rep., 1114; 
 Robinson v. Simpson, 8 Houst. ( Del.), 
 398, 32 Atl . Rep., 287; Warner v. Cham- 
 berlain, 7 Houst. (Del.), 18, 30 Atl. 
 Rep, 638; Wallace v. Railway Co., 
 8 Houst. (Del.), 529; IS Atl. Rep., 818, 
 Western & A. R. Co. v. Young, 81 Ga.; 
 397, 12 Am. St. Rep.. 320; Georgia 
 Southern R. Co. v. Neel, 68 Ga., 609 ; 
 Central Rd. & Banking Co. v. Pass- 
 more, 90 Ga., 203 ; 15 S. E. Rep., 760 ; 
 City of Columbus v. Sims, 94 Ga., 483, 
 20 S. E. Rep., 332; Central Rd. Co. v. 
 Dottenheim, 92 Ga., 425; Western, 
 Etc.. Rd. Co. V. Moore, 94, 457; Rich- 
 mond & D. R. Co. V. Allison, 86 Ga., 
 145, 11 L. R. A., 43; Toledo, Wabash 
 & W. R. Co. V. Baddeley, 54 111., 19, 5 
 Am. Rep., 71; Fisher v. Jansen, 128 
 111., 549, 21 N. E. Rep., 598; Illinois 
 Centr. Rd. Co. v. Cole, 62 111. App., 
 4S0 ; Consolidated Coal Co. v. Haenni, 
 146 111., 614; Peoria Bridge Ass. Co. 
 V. Loomis, 20 111., 235, 71 Am. Dec, 
 263; Chicago, R. I. & P. Co. v. Pay- 
 zant, 87 111., 125 ; Central Ry. Co. v. 
 Serfass, 153, 111., 379, 39 N. E. Rep., 
 119; Pennsylvania R. Co. v. Versten, 
 140 111., 637, 15 L. R. A., 798; Chicago 
 & A. R. Co. V. Blaul, 175 111., 183, 51 
 N. E. Rep., 895; Chicago City Ry 
 Co. V. Leach, 80 111. App,, 354; West 
 Chic. St. Ry. Co. v. Musa, 80 III. App., 
 223; Illinois Centr, R. Co. v. Treat, 
 7a 111. App., 327; North Chic. St. Ry. 
 Co, V. Brown, 76 111. App., 654 ; City 
 of Indianapolis v. Gaston, 58 Ind,, 
 224; Stewart v. Maddox, 63 Ind,, 61 ; 
 Indiana Car Co. v. Parker, 100 Ind., 
 181 ; Wabash W. Ry. Co,, v. Morgan, 
 132 Ind., 4.30, 31 N. E. Rep, 661 ; Chi- 
 cago & E. R. Co. V. Meech, 59 111. 
 
 App., 69; Louisville N. A.& C. R. Co. 
 V. Falvey, 104 Ind., 409, 3. N. B. Rep,, 
 389 ; Louisville, N. a! & C. R. Co. v. 
 Wood, 113 Ind., 544. 14 N. E. Rep., 
 572; Indianapolis, B. & W. R. Co. v. 
 Barnhart, 115 Ind., 399, 16 N. E. 121 ; 
 Carthage Turnpike Co. v. Andrews, 
 102 Ind., 138, 1 N. E. Rep , 364, 62 
 Am. Rep., 653; Evansville & T. H. 
 R. Co. V. Crist, 116 Ind., 446, 9 Am. 
 St. Rep., 865 ; Richmond Gas Co. v. 
 Baker, 146 Ind., 600; City of Decatur 
 V. Stoops, Ind. App., 52 N. E., 623 ; 
 Russ V. War Eagle, 14 Iowa, 363; 
 Rice V. Des Moines, 40 Iowa, 638 ; 
 Collins V. Council Bluffs, 35 Iowa, 
 432; Belair v. Railway Co., 43 Iowa, 
 662; Kiiapp v. Railway Co., 71 Iowa, 
 41. 32 N. W. Rep., 18; Haden v. 
 RailwayCo.,92 Iowa, 226, eON.W.Rep., 
 537 i Weber v. Creston, 75 Iowa, 16, 39 
 N,W, Rep,,126; Pence v. Railway Co., 
 79,Iowa, 389, 44 N.W. Rep.,686; Wesley 
 V. Railway Co., 84 Iowa, 441, 51 N. W. 
 Rep., 163 ; Harker v. Railway Co., 
 88 Iowa, 409, 55 N. W. Rep., 316, 45 
 Am. St. Rep., 242 ; Raben v. Railway 
 Co., 74 Iowa, 733; Baxter v. Rail- 
 way Co., 87 Iowa, 488 ; 54 N. W. Rep., 
 350 ; McKinley v. Chicago, R. I. & P. 
 Ry. Co., 44 Iowa, 314, 24 Am. Rep., 
 748 ; Marion v. Railway Co. ,64 Iowa, 
 568 ; Keyes v. Cedar Falls, 107 Iowa, 
 509, 78 N. W., 227 ; Kansas City, F. S. 
 & G. R. Co. V, Kier, 41 Kan., 661, 13 
 Am. St. Rep., 311 ; Abilene v. Wright, 
 4Kan. App., 708; Townsend v. Paola, 
 41 Kan., 591, 21 Pac. Rep., 596 ; City of 
 Wichita v. Stallings, (Kan.) 54 Pac. 
 Rep., 689;; Atchison, T. & S. F. R.Co. 
 v. Lee, 54 Pac. Rep., 4; Southern 
 Kansas R. Co. v. Walsh, 45 Kan., 653, 
 26 Pac. Rep., 45 ; Standard Oil Co. v. 
 Tierney, 92 Ky., 367, 14 L. R. A., 677, 
 36 Am, St. Rep., 595; Alexander v. 
 Humber, 84 Ky., 565 ; Louisville & 
 N. R. Co, v. Constantine, 14 Ky,, L, 
 Rep , 4.32 ; Kentucky Central Ry. Co. 
 
i 53 
 
 DIMINISHED EARNING CAPACITY. 
 
 88 
 
 worth to his business prior to and for all the time subse- 
 quent to the injury. The loss of capacity may be total 
 or it may be a fractional part. It may increase or it may 
 decrease as the person advances in years ; and in some 
 injuries it may remain the same. The rule applies to 
 every trade, occupation, business, or profession. When- 
 ever the injury is permanent, diminished earning capacity 
 is one of the natural results. In the majority of injuries 
 
 V, Ryle, 18 Ky., L. Rep., 862 18 S. W. 
 Rep., 938; Louisville & N. R. Co. 
 V. Chism (Ky.), 47 S. W. Rep., 251; 
 Louisville & N. R. Co. v. McEwan, 
 21 Ky. L. Rep., 487, 51 S. W. Rep., 
 619; Louisville & N. R. Co. v. Mit- 
 chell, 83 Ky., 329, 8 S. W. Rep., 706; 
 Wardle v. Railway Co., 35 La. Ann., 
 202; Pittsburg & C. R. Co. v. An- 
 drews, 39 Md., 329, 17 Am. Rep., 568; 
 Stockton V. Frey, 4 Gill (Md.) 406, 45 
 Am. Dec, 138; Sandford v. Augusta, 
 32 Maine, 536 ; Blackman v. Gardiner 
 & P. Bridge, 75 Maine, 214; Colby v. 
 Wiscasset, 61 Maine, 304; Bradbury 
 V. Benton, 69 Maine, 199 ; Howes v. 
 Ashfield, 99 Mass., 540; Tyson v. 
 Booth, 100 Mass., ^66; Warren v. 
 Railway Co., 163 Mass., 484, 40 N. E. 
 Rep., 895; Sherwood v. Railway Co., 
 82 Mich., 374; Kinney v. Folkerts, 84 
 Mich., 616; Welch v. Ware, 32 Mich., 
 77 ; Huizega v. Cutler & S. L. Co., 51 
 Mich., 272, 16 N. W. Rep., 643; Det- 
 zer V. Brewing Co., 119 Mich., 482, 77 
 N. W. Rep., 948; Hall v. Railway Co., 
 46 Minn, 439, 49 N. W. Rep., 239; 
 Howe V. Railway Co., 62 Minn., 71, 30 
 L. Rep., 684 ; Slbniker v. Railway Co., 
 
 76 Minn., 306, 79 N. W. Rep., 168; 
 Fonda V. Railway Co., 77 Minn., 336, 
 79 N. W. Rep., 1043 ; Johnson v. Rail- 
 way Co., 47 Minn., 430, 50 N. W. Rep , 
 473; Cooper v. Railway Co., 54 Minn., 
 379, 56 N. W, Rep., 42 ; Drain v. Rail- 
 way Co., 86 Mo., 574 ; Whalen v. Rail- 
 way Co., 60 Mo., 323; Stephens v. Rail- 
 way Co., 96 Mo., 207, 9 Am. St. Rep., 
 336; Cobb v. Railway Co., 149 Mo., 609, 
 60 S. W. Rep., 894; Gorham v. Railway 
 Co., 113 Mo., 408, 20 S. W. Rep., 1060 • 
 Louisville, N. O. & T. Rd. Co. v. 
 Thompson, 64 Miss., 584, 57 Am. Rep., 
 20; Sweeney V. Butte, 15 Mont., 274 
 39 Pac. Rep., 286; Chicago, etc., Rd 
 Co. V. Starmer, 26 Neb.,~630; Omaha 
 St. Ry. Co. V. Emminger, 67 Neb. 240 
 
 77 N. W. Rep., 675 ; Klein v. Jewett, 26 
 
 N.J. Eq., 474; Holvoke v. Railway Co., 
 48 N. H., 541 ; Hopkins v. Railway Co., 
 36 N. H., 9, 72 Am. Dec, 287 ; Feeney 
 V. Railway Co., 116 N. Y., 376 ; Fein- 
 stein V. Jacobs, 37 N. Y. Supp., 345 ; 
 Dollard v. Roberts, 130 N. Y., 269, 14 
 L. R. A., 238; Alberti v. Railway Co., 
 118 N. Y., 77; Rockwell v. Railway 
 Co., 64 Barb., 438; Walker v. Railway 
 Co., 63 Barb., 260; German v. Suburban 
 Rap. Tr. Co., 13 N. Y., Supp., 897 ; 
 Dalzell V. Railway Co., 119 N. Y., 626 ; 
 Fitton V. Railway Co., 5 N. Y. Supp., 
 641 ; Baker V. Railroad Co., 54 N. Y. 
 Super. Ct., 394; Wynne v. Railroad 
 Co., 156 N. Y., 702; 51 N. E. Rep., 
 1094; O'Keefe v. Railroad Co., 
 53 N. Y. Supp., 940; O'Donnell v. 
 Refining Co., 48 N. Y. Supp., 640 ; 
 Strohm v. Railroad Co. 96 N. Y., 305; 
 Morrison v. Railroad Co , 38 N. Y., 
 Supp., 393 ; Curtiss v. Railroad Co., 
 20 Barb., 282; Hughes v. Orange 
 County Milk Ass., 10 N. Y. Supp., 
 252 ; Schneider v. Railroad Co., 15 N. 
 Y. Supp., 556 ; Solen v. Railroad Co., 
 13 Nev., 106 ; City of Oklahoma City 
 v. Walsh, 3 Okl., 288, 41 Pac Rep., 
 598 ; C. H. V. & Ry. Co. v. Shannon, 
 2 O. C. D., 644, 4 O. C. C, 449; 
 Brooklyn St. Ry. Co. v. Kelley, 3 O. C. 
 D. 393, 6 O. C. C, 155; Toledo Con. 
 St. Ry. Co. v. Sweeney, 4 O. C. D., 
 11, 8 O. C. C, 298 ; Toledo Con. St. Ry. 
 Co. v. Rohner, 6 O. C. D., 706, 9 O. C. 
 C, 702 ; Pittsburg & L. E. Ry. Co. v. 
 Blair, 5 O. C. D., 36fi, 11 O. C. C, 579 ; 
 L. S. & M. S. Ry. Co. V. Winslow, 4 
 O. C. D., 242, 10 O. C. C, 193; L. S. 
 
 6 M. S. Ry. Co. V. Gagen, 4 O. C. D., 
 260, 12 O. C. C, 695 ; Toledo v. Hig- 
 gins, 7 O. C, D., 29, 12 O. C. C, 646; 
 C. H. & D. Ry. Co. V. Boyer, 10 O. C 
 D., 199 : Toledo St. Ry. Co. v. Tucker 
 
 7 O. C. D., 169, 13 O. C. C, 411 ; Bond 
 Hill V. Atkinson, 9 O. C. D., 185, 16 O 
 C. C, 470 ; Toledo v. Clopeck, 9 O. C 
 D., 432; 17 O. C. C, 585; Mt. 
 
89 
 
 DIMINISHED EARNING CAPACITY. 
 
 53 
 
 it means more than loss of time or expenses, for the 
 reason that it remains with or follows the person during 
 the balance of his life. The injury may require the 
 injured person to engage in some other trade, business 
 or occupation. 
 
 If the injured person is an adult, the loss of earning 
 power means the damage which he sustains for the time 
 he is incapacitated to work or .earn money at his occupa- 
 tion ; or the difference between what he earned before the 
 injury and what he is afterward able to earn in the same 
 or some other occupation or business. 
 
 If the injured person is an infant, the loss of earning 
 capacity means that loss which he will sustain in being 
 unable to learn or acquire a profession, trade or busi- 
 ness, to that extent to which he would have been able to 
 have learned or acquired had he not received an injury.' 
 What the loss may be to an infant depends upon the facts 
 
 Adams & E. P. Inclined Plane 
 R. Co. V. Isaacs, 10 O. C. D., 49, 
 18 O. C. C, 177 ; Wallace v. Rail- 
 road Co., 104 N. C, 442, 2 Am. St., 
 Rep., 346 ; Willis v. Traction Co., 189 
 Pa. St., 430, 42 Atl. Rep. 1 ; Malone v. 
 Railway Co., 152 Pa. St., 390; Good- 
 hart V. Railway Co., 177 Pa. St., 1, 35 
 Atl. Rep., 191 ; Pennsylvania Rd. Co. 
 V. Books, 57 Pa. St., 33'.' ; 98 Am. Dec, 
 229 ; Pennsylvania Rd. Co. v. Dale, 76 
 Pa. St., 47; McLaughlin v. Corry, 77 
 Pa. St., 109, 18 Am. Rep., 432; Scott 
 V. Montgomery, 95 Pa. St., 444; Stone 
 V. Pendleton, 21 R. I., 332, 43 Atl. Rep., 
 643 ; Elliott v. Newport Si. Ry. Co., 18 
 R. I, 707, 23 L. R. A., 208, 31 Atl. Rep., 
 694; West Memphis Packet Co. v. 
 White, 99 Tenn., 256, 38 L. R. A., 427 ; 
 Texas & P. Ry. Co. v. Johnston, 76 
 Tex., 421, 18 Am. St. Rep, 60; Mis- 
 souri K. & T. Ry. Co. v. Huff, (Tex. 
 Civ. App ) 32 S. W. Rep., 551 ; Galves- 
 ton, H. & S. A. Ry. Co. v. Scott (Tex.), 
 50 S. W. Rep., 477 ; Houston, etc., R. 
 Co. v. Boehn, 57 Tex., 152; Fort 
 Worth & D. C. R. Co. v. Robertson, 
 (Tex.), 14 L. R. A. 781 ; Houston, etc., 
 R. Co. v. Willie, 53 Tex., 318, 37, Am. 
 Rep., 756 ; International R. Co. v. 
 Irvine, 64 Tex., 529 ; Gulf, etc., R. R. 
 Co. v. Silliphant, 70 Tex. , 623 ; Texas & 
 M. Rd. Co. V. Douglass, (Tex.), 11 
 S. W. Rep., 333; Houston, E. & W. 
 T. Ry. Co. V. Hartnett, (Tex.) 48 S. W. 
 
 Rep., 773 ; Galveston H. & H. R. Co. 
 V. Bohan, (Tex.), 47 S.W. Rep., 1050; 
 International & G. N. R. Co. v. 
 Bonantz, (Tex.), 48 S. W. Rep., 767 ; 
 Missouri K. & T. Ry. Co. v. Parker, 
 (Tex.), 49 S. W. Rep., 717; Bowers v. 
 Railway Co., 4 Utah, 215 ; Bitner v. 
 Railroad Co., 4 Utah, 502; Stoll v. Min- 
 ing Co., 19 Utah, 271, 57 Pac. Rep., 295; 
 Richmond & D. Ry. Co. v. Norment, 
 84 Va., 167, 10 Am. St. Rep., 827; 
 Baltimore & O. R. Co. v. Wightman, 
 29 Gratt. (Va.) 431, 26 Am. Rep., 384; 
 Cogswell V. Railway Co., 5 Wash. St., 
 46, 31 Pac. Rep., 411 ; Roth v. Union 
 Depot Co., 13 Wash., 525, 31 L,. R. A., 
 855 ; Columbia & P. S. R. Co. v. Haw- 
 thorn, 3 Wash. T., 353, 19 Pac. Rep., 
 25; Seats v Railway Co., 6 Wash,, 
 227,33 Pac. Rep., 389, 1081 ; Heddles v. 
 Railway Co., 77 Wis,, 228, 20 Am, St., 
 106; Propsom v. Leathan, 80 Wis., 
 608, 50 N. W. Rep., 586: Schultz v. 
 Railway Co., 48 Wis., 375; Berg v. 
 Railroad Co., 50 Wis., 419, 7 N. W. 
 Rep., 347 ; Baltzer v. Railroad Co., 89 
 Wis., 257, 60 N. W. Rep., 716. 
 
 'Rosenkranz v. Railwav Co., 108 
 Mo., 9, 32 Am. St. Rep., 588; Rum- 
 mele v. Heating Co., 18 Atl. Rep., 78; 
 Western & Atl. R. Co. v. Young, 81 
 Ga, 397, 12 Am. St. Rep., 320; Fort 
 Worth & D. C. R. Co. v. Robertson, 
 14 L. R. A., 781 ; Walker v, Erie Rd. 
 Co., 63 Barb., 260. 
 
i 54 DIMINISHED EARNING CAPACITY. 90 
 
 of each case or extent of the injury. The damages for 
 diminished earning capacity to an infant must be limited 
 to the period after majority/ The damages maybe more 
 or may be less according to the permanancy of the injury. 
 This rule or principle is general in its application, and 
 exceptions do not disprove it. 
 
 It will not be supposed that the same compensation 
 should be given to each person for the same infirmity. 
 The amount depends upon a gr eat many conditions, viz : 
 occupation, age, experience, habits, intelligence, hered- 
 ity, ability to earn money and other circumstances. Some 
 ot these will appear in one and will not appear in another 
 case. The amount should be larger for a young than for 
 an old person ; for an educated than for an ignorant man ; 
 for one whose earnings are large than for one who is a 
 day laborer. The amount should be commensurate with 
 the injury and its effect upon the injured person to earn 
 money. It means a reasonable compensation for all the 
 damages sustained. The facts of each particular case 
 must be given to the jury, and the amount to be awarded 
 must be left to their consensus of opinion, good sense and 
 judgment.^ 
 
 There is no fixed rule by which to estimate damages 
 for diminished earning capacity resulting from a perma- 
 nent injury.' 
 
 § 54. Proof of Loss of Earning Power. The bur- 
 den of proof is upon the plaintiff to show that the injury 
 has diminished his capacity to earn a living.* How this 
 may be done depends upon the nature of the injury, its 
 effect upon the earning capacitj-, and the loss which is sus- 
 tained thereby. It is proper to show the injured person's 
 previous physical condition and ability to labor and fol- 
 low his usual occupation, as well as his condition since 
 the injury, to enable the jury to properly find the pecu- 
 niary compensation to be awarded for loss of earning 
 power." 
 
 •Western & Atl. R. Co. v. Young, this case it was held that the plain- 
 
 81 Ga., 397 ; Houston, etc., Ry, Co. tiff could recover more tha nnomtnal 
 
 V. Boozer, 70 Tex., 530, 8 Am. St. damages when it appears that he had 
 
 ^%^' ^^^" « « . ^°^^ ^" ^i"™ tiy tlie injury, even if 
 
 -,,;^^K"''.I- ^-^ ^''■°'^ Brewing Co., there is no further proof that his 
 
 119 Mich., 482. 44 L. R. A., 500. capacity to earn money had been di- 
 
 "GeorgiaPac. Ry. Co. v. Freeman, minished. 
 83 Ga., 583, 10 S. E. Rep., 277. » Greer v. Railroad Co., 94 Ky , 169 
 
 ♦Louisville, etc., Rd. Co. v. Binion, 42 Am. St. Rep., 845- Citv of Toliet 
 
 107 Ala., 645, 18 South Rep., 75. In v. Conway, 119 111 489 ^ ■* ' 
 
S • DIMINISHED EARNING CAPACITY. § 54 
 
 The evidence should show the age and situation of the 
 injured party, his earning- capacity, and its probable du- 
 ration, the loss sustained by the injury to his earning 
 power, and the extent to which he is disabled from earn- 
 ing a support for himself, on account of such injury.' 
 
 The law fixes the burden upon him who claims damages 
 from another as a compensation for a pecuniary loss to 
 furnish facts necessary to ascertain the extent of his loss 
 with reasonable certainty, and failing in this, he is 
 entitled to no more than nominal damages.^ In the 
 absence of proof of the value of plaintiff's time while laid 
 up from the injury, and how much he was capable of 
 earning before the injury, there is no basis upon which 
 tbe jury can estimate his future damages, on account of 
 impairment of his power to earn money by reason of his 
 iniur3\' 
 
 Whether an employee's wages will be. increased or 
 diminished in the future or whether he will certainly die 
 sooner or later is not a fact of positive proof; but' no 
 sound rule of right and justice will permit a jury in 
 assessing damages to be paid by one person to another as 
 a compensation for a pecuniary loss, to reach a conclu- 
 sion of amount to be paid from mere conjectures or with- 
 out regard to proper data furnished as evidence.* 
 
 Conclusive Proof. It is not possible to show by direct 
 and conclusive evidence the exact loss sustained by per- 
 manent injury or piospective loss of earnings, for the 
 reason that what may or may not be done by any person 
 depends upon many conditions and contingencies. Yet 
 damages for impairment of the earning capacity are uni- 
 formly allowed, it is not always necessary to show the 
 exact sum received by the plaintiff for his services or 
 that he was receiving anytliing before the injury, if it 
 appears that he did earn money from his labor or busi- 
 
 1 Greer V. Railroad Co., 94 Ky., 169; without fault on his part, may re- 
 Whalen v. Railway Co , HO Mo., 324. cover general damages on account of 
 
 2 Seaboard Mfg. Co. v. Woodson, 98 pain, physical injury and general de- 
 Ala., 378; Central Rd. & Banking Co. preciation of power to labor, though 
 V. Passmore, 90 Ga., 203. no proof of value of his services 
 
 'Britten v. Railway Co., 90 Mich., as such employee, or in other 
 
 159; O'Brien v. Loomis, 43 Mo. App., business, be introduced. 
 
 29. But in Georgia Southern R. Co. * Seaboard Mfg. Co. v. Woodson, 98 
 
 V. Neel, (68 Ga., 609), it is held that an Ala., 378; Jewell v. Union Passenger 
 
 employee of a railroad company who R. R. Co. Penn. Sup. Ct., 1883. 
 has been injured by its negligence 
 
^ 55 DIMINISHED EARNING CAPACITY. 92.- 
 
 ness, provided there is evidence of his inability, or that 
 he is not now able to labor or transact business. The, 
 jury may consider the amount from this evidence/ 
 There must be some data and evidence of the previous 
 physical condition and of his ability to work or to follow a 
 trade, occupation, or business — and also what his 'con- 
 dition has been since the injury, and that he will be in 
 some way permanently affected thereby.^ 
 
 Where the injury is of such a character that it tends of 
 itself to establish the incapacity of the plaintiff to labor, 
 or where there has been a loss of an arm, or a leg, or 
 some other permanent physical disability, no evidence 
 of the effect of the injury upon the earning capacity of 
 the plaintiff is necessary to be given.^ 
 
 The opinion of a plaintiff as to the value of his services 
 as a farmer, is admissible, based on his knowledge of 
 what it costs him yearly for his living expenses, which 
 he makes from his business.* 
 
 Where the injuries for which damages are claimed 
 resulted in the loss of an arm, the plaintiff should be 
 allowed to show that he had not sufficient education to 
 earn a livelihood in a clerical position/ 
 
 § 55. Evidence of Loss of Earning Power. In 
 
 actions to recover damages for loss of earning capacity, 
 evidence showing the earnings of the injured party before 
 and after the injury is admissible by way of comparison.' 
 But this is not a perfect test of the loss of earn- 
 ing capacity for the reason that an injured person 
 may not have earned anything after an injury or may not 
 have attempted to earn anything, when he was capable 
 
 ipeinslein V. Jacobs, 37 N. Y. Sup., 'Arkansas Midland Ry. Co. v. 
 
 845 ; Fisher v. Jansen, 128 111., 549; Griffith, 63 Ark. 491 ; 39 S. W. Rep., 
 
 Rosenkranz v. Railway Co , 108 Mo., 550. 
 
 9; 32 Am. St. Rep., 588. ^ Helton v. Railway Co., 97 Ala. 
 
 2Block V. Railway Co., 89 Wis. 371, 275. 
 
 46 Am. St. Rep,, 849. « Chicago & "E. Rd. Co. v. Meech, 
 
 3 Texas & Pac. Rd. Co. v. O'Don- 163 111., 305, 59 111. App., 69; Illinois 
 
 nell, 58 Tex. 27, 10 Am, and Neg. Central Rd. Co, v. Davidson, 76 Fed. 
 
 Rd. Cases, 712. In this last case. Rep., 517; Knapp v. Railway Co., 71 
 
 The court .said : "That the perma- Iowa, 41; Linton Coal, etc. Co. v. 
 
 nent loss of her arm, amputated as it Persons, 15 Ind, App., 69 ; Bagley v. 
 
 was at the shoulder joint, would re- Mason, 69 Vt., 175; Galveston, etc., 
 
 duce her capacity to earn money,^ Rd. Co. v. Cooper, 2 Tex. Cir, App., 
 
 would seem to be an inference which 42; Pittsburg C. C. & St. L. R. Co. 
 
 the jury could draw for themselves, v. Story, 63 111. App., 2.39. 
 without the aid of witnesses." 
 
93 DIMINISHED EARNING CAPACITY. 55 
 
 ■of earning something. The comparison is proper when 
 it appears that the injured person has done and is doing 
 all that he is able to do or capable of doing. 1 1 is not 
 then a final test, but only evidence of loss of earning 
 capacity, to be considered with the other evidence by the 
 jury. The loss of earning power is not a matter of easy 
 computation. It involves an inquiry into the value of the 
 labor, physical or intellectual of the person injured, be- 
 fore the accident happened to him, and the ability of 
 the same person to earn money by labor, physical or 
 intellectual, after the injury was received.* 
 
 It may be laid down as a general rule that evidence 
 which shows the difference between the earning capacity 
 of the injured party before and after the injury, as indi- 
 cated by what he might have earned or is capable of 
 earning, and not by what he actually has earned, is 
 proper and admissible to show the extent of the injury 
 and to fix and establish the measure of damages.^ 
 
 The measure of damages for an injury to an employee 
 is the diminution in his capacity to earn money; but the 
 amount of his wages at the time of his injury, although 
 evidence of his capacity, is not the absolute test of it for 
 
 iGoodhart v. Railroad Co., 177 Pa. 169 ; Dougherty v. Railway Co., 97 
 
 St., 1. Mo., 647; Johnson v. Railway Co., 96 
 
 ^Connor V. Pioneer, F. P. C. C, 29 Mo., 340; Lincoln v. Bechman, 23 
 Fed. Rep., 29; Whelan v. Railway Neb., 677; Miller v. Railroad Co., 26 
 Co., 38 Fed. Rep., 15; Parshall v. N. Y. Supp,162; Wedekind v. P>.ail- 
 RaiiwayCo.,35Fed. Rep., 649;Vicks- way Co., 20 Nev., 292,21 Pac. Rep., 
 burg and Midland R. Co., V. Putnam, 389; Mt. Adatns, E. P. Ry. Co. v. 
 118 U. S., 545; Halleck v. Johnson, Isaacs, 10 O. C. D., 49; Louisville & 
 ^Colo ) 20 Pac. Rep., 700 ; Toledo, N. R. R. Co. v. Stacker, 86 Tenn. 343, 
 Wabash & W. R. Co. v. Baddeley, 54 6 Am. St. Rep., 840; Youngstown 
 111., 711 ; Chicago & E Rd. Co. v. Bridge Co. v. Barnes, 98 Tenn,, 401, 2 
 Meech, 59 111., App., 69; Carthage Am. Neg. Rep., 237; Texas, etc. Rd. 
 Turnpike Co. v. Andrews, 102 Ind., Co. v. Douglas, 69 Tex. 694; Dallas 
 138,1 N. E. Rep.. 364; Louisville, N. & Gr. N. Rd. Co. v. Able, 72 Tex. 
 A., etc.. R. Co. V. Falvey, 104 Ind., 150; Houston & Tex. Centr. R. Co., 
 409, 3 N. E. Rep., 389; Louisville, N. v. Lowe, 11 S. W. Rep., 1065; How- 
 A., etc., R. Co. V, Frawley, 110 Ind. ard Oil Co. v. Davis, 76, Tex., 630; 
 18, 9N. E. Rep., 594; Cleveland, etc., Tex. Pac. Rd. Co. v. Overheiser, 76 
 R. Co. V. Gray, 148 Ind., 266 ; Knapp Tex., 437 ; Gulf, W. T. & P. R. Co. v. 
 V. Railway Co., 71 Iowa, 41 ; Reed v. Abbott, (Tex. Civ. App ) 24 S, W. 
 Railway Co., 74 Iowa, 188 ; Whalen v. Rep., 299 ; Campbell v. Fisher, (Tex. 
 Railway Co., 75 Iowa, 563; Winter v-. Civ. App.) 24 8. W. Rep., 661 ; Red- 
 Railway Co. , 80 Iowa, 443 ; Sherwood don v. Railroad Co., 5 Utah, 344 15 
 V. Railway Co., 82 Mich., 374 ; Goveke Pac. Rep., 262 ; Schultz v. Railway Co. 
 v Grand R. & N. I., 57 Mich. 589 ; 48 Wis., 375 ; Stutz v. Railway Co., 
 «obieski v. Railway Co., 41 Minn., 73 Wis., 147, 9 Am. St. Rep., 776. 
 
J S5 DIMINISHED EARNING CAPACITY. 9+ 
 
 all time. What his capacity would have been if uninjured 
 and what it was after the injury should have been left to 
 the jury/ 
 
 Where the occupation of the injured person is a pro- 
 fession, such as a physician, attorney or musician, and an 
 action is brought by him to recover damages for personal 
 injuries, and where it appears that one of the damages 
 sustained is the loss of earning capacity, or loss of 
 ability to earn money in the practice of his profession, it 
 is proper to show the average yearly earnings of such 
 injured person for several years prior to the time of such 
 injury, to enable the jury to arrive at what would be a 
 fair compensation for such loss of earning power/ 
 
 In Phillips V. Railroad Co., 5Q. B. Div. 78, the plaintiff 
 was a physician and brought his action for a personal 
 injury by which he was incapacitated from attending to- 
 his business. On the trial he proved that before the 
 injury he had been receiving large special fees in the 
 nature of gratuities from wealthy patients, which with 
 his regular income from his general practice gave him 
 an income of about five thousand pounds per year. The 
 jury rendered a verdict for the plaintiff for sixteen 
 thousand pounds. The case was taken to a higher court, 
 and one of the questions was whether the jury was prop- 
 erly permitted to consider the special fees, or gratuities, 
 in estimating the value of the plaintiff's business ; and 
 the court held that it was a proper matter for their con- 
 sideration. 
 
 ' Gulf, W. T. & p. R, Co. V. Abbott, and tbe use of his injured hand, and" 
 
 (Tex. Circ. App.) 24 S. W. Rep., 299. his ability to labor and attend to his- 
 
 ^ Phillips V. Railway Co.,5 Q. B. Div., affairs and generallj' any reduction of 
 
 78 : Parshall v. Railroad Co., 35 Fed. his power and capacity to labor and 
 
 649 ; District of Columbia v. Wood- earn mouey, and pursue the course of 
 
 bury, 136 U. S., 450; Cleveland, etc. life which he might otherwise have 
 
 Ry. Co. V. Gray 148 Ind. 266; Mur- done. 
 
 dock V. Express Co., 167, Mass., 549 ; In Geveke v. Railroad Co., 57 Mich. 
 
 1 Am. Neg. Rep., 263, Joslin v. 589, the court approved the following 
 
 Ice Co., 53 Mich., 322 ; Nash v. Sharpe instruction to the jury : " In fixings 
 
 19 Hun. (N. Y), 365; Simonsrn v. the measure of damages for a phvsi- 
 
 Railway Co., 36 Hun. (N. Y.), 214; calinjury, the jury may consider what 
 
 Kissel v. Butler, 53 N. Y., 612 ; Ehrgot the victim would have been able ta 
 
 V. Mayor, 96 N. Y., 264 ; Pennsylvania earn if he had not been hurt, and 
 
 Rd. Co. v. Dale, 76 Pa. St., 47. should award the difference between 
 
 In Southern Pac. Co. v. Davidson, that sum and what he has actually 
 
 44 Fed. Rep., 476, the court charged been able to earn, together with the 
 
 thejurythat in making your estimate resultant sickness, and actual dam- 
 
 of damages you are authorized to ages for any pain, suffering, shock 
 
 consider : " The probable effect of and fright incident to the injury." 
 the injury in future upon his health, 
 
95 DIMINISHED EARNING CAPACITY. 
 
 55 
 
 Where the injury' was to a physician which impaired his 
 faculties from doing the same kind of work after, 
 which he had done before the injury, evidence of his con- 
 tribution to medical journals on medical subjects is admis- 
 sible. District of Columbia v. Woodbury, 136 U. S. 450, 
 where the court said: "This evidence was competentupon 
 the issue as to damages. It indicated the nature of the 
 plaintiff's pursuits, and in connection with other evidence 
 showing the serious and permanent character of the 
 injuries received by him that his capacity to prosecute his 
 studies, and to follow his ordinarv pursuits was impaired. 
 The defendant insists that the evidence should have been 
 rejected because it did not appear that the plaintiff had 
 derived anj' income from his contributions to medical 
 journals. This is not a sound view of the question. Even 
 if those contributions were made without compensation, 
 his inability to continue them by reason of the injuries, 
 in question was a proper element in the inquiry as to 
 damages. That fact tended to show the extent of both 
 his mental and physical suffering resulting from the 
 injuries received, all evidence tending to show the char- 
 acter of his ordinary pursuits and the extent to which the 
 injury complained of from following those pursuits was 
 pertinent to the issues," citing authorities. 
 
 In Conner v. Pioneer Fire Proof Constr. Co., 29 Fed., 
 629, the plaintiff was an ordinary mechanic and it was 
 held competent to show the difference between the wages 
 earned by him before the injury and those he was able to 
 earn afterwards, as tending to establish the extent of his 
 injuries. 
 
 In Consolidated Kan. City & S. R. Co. v.- Tinchert, 5 
 Kan. App., 130, the plaintiff was allowed to show that he 
 was a musician, and that by reason of the injuries com- 
 plained of had sustained a loss, in not being able after the 
 injury to blow a wind instrument which he had been in 
 the habit theretofore of using. 
 
 The plaintiff may show his ability and capacity for 
 labor, as well as skill or learning in any particular art 
 or profession, in order to show what he was capable of 
 earning; but it is not error to reject a question which 
 simply calls for the amount of money that the plaintiff 
 made the year previous.^ 
 
 "East Tenn., V. & G. R. Co. v. Eng. Rd. Cases, 65; approved in 12 
 W hite, 5 Lea (Tenn.), 540, 8 Am. & Lea (Tenn.), 46. 
 
56 
 
 DIMINISHED EARNING CAPACITY. 96 
 
 Where the evidence shows that a person has been 
 engaged for two years in studying for a profession, and 
 that he has been employed at labor, taken in connection 
 with his appearance and with testimony that he is per- 
 manently disabled by disease of- the heart, it is enough 
 to justify the finding that his capacity to earn money has 
 been diminished.^ 
 
 It is proper to show the former skill of the plaintiff in 
 needlework by introducing a sample of her work, and 
 then to prove that her capacity to do such work was 
 destroyed by the injuries.^ 
 
 That the plaintiff was engaged in a particular business, 
 such as a distiller or manufacturer of turpentine is, 
 admissible.^ 
 
 § 56. Evidence of Diminished 'Capacity to Follow 
 Ordinary Occupation or Business. In estimating the 
 amount of damages to be given for a permanent injury, 
 evidence is competent which tends to show the previous 
 occupation of the plaintiff, the amount of money which he 
 received from it, and the extent to which the act of the 
 defendant has impaired his capacity to perform the duties 
 of such occupation or business.* 
 
 It is not only proper, but important for the plaintiff to 
 show his previous physical condition and ability to labor 
 or follow his usual or ordinary avocation, as well as his 
 condition since the injury, to enable the jury to properly 
 find the pecuniary damages.^ 
 
 The extent and nature of the business of the plaintiff 
 and his physical eapucity to perform work at the time he 
 was injured may be shown, and where one of the injuries 
 sustained was the breaking of an arm, it is competent 
 for him to prove that his other arm had been previously 
 
 1 McGarrahaii v. Railway Co., 151 435 ; Morris v. Railroad Co. 45 Iowa, 
 Mass., 211, 50 N. E. Rep., 610, 4 Am. 29 ; District of Columbia v. Wood- 
 Neg. Rep., 284. bury, 136 U. S., 450 ; Wallace v. Rail- 
 
 2 Youngstown Bridge Co. V. Barnes, way Co., 104 N. Car., 442. 2 Am. St. 
 98 Tenn., 401, 39 S. W. Rep., 714. Rep ; Southern Pac. R. Co. v. David- 
 
 ' Wade V. Leroy, 20 How. (U. S.), 34. son, 44 Fed. Rep. 470 ; Chicago, St. 
 
 *Alliance v.Campbell, 6 O.Circ.Dec, L. & P. R. Co. v. Butler, 10 Ind. App. 
 
 762, 17 O. C. C. 595 ; Mt. Adams & E. P. 244 ; 38 N. E. Rep., 1. 
 
 Inclined P. R. Co. v. Isaacs, 10 O. Circ. ' Greer v. Railroad Co. 94 Ky. 169, 
 
 Dec, 49, 18 O. C. C, 177 ; George v. 42 Am. St. Rep 845 ; City of Joliet v. 
 
 Haverhill, 110 Mass., 506 ; New Jersey Conway, 119 111. 489 ; Bloomington v. 
 
 Express Co. v. Nichols, 33 N. J. L.; Chamberlain, 104 111. 268. 
 
97 DIMINISHED EARNING CAPACITY. § 56 
 
 disabled. Not as an element of recovering damages, but 
 as showing the decreased capacity to earn money, as pro- 
 duced by the injury.^ 
 
 Evidence is competent to show the condition of plain- 
 tiff's health, his aptitude and qualification for business 
 and his habits of industry ; and anything else affecting 
 his prospective earnings or savings ; also that he was de- 
 pendent upon his earnings for support, as tending to 
 show or indicate the probable continuance of his in- 
 dustry.^ 
 
 Growing years. Infirmities of age. In assessing 
 damages for a personal injury, the jury may take into 
 consideration : Firsts the diminished capacity of the plain- 
 tiff to work, which is likely to occur by growing years, 
 and infirmities of age.' Second, the mental injuries as 
 well as the physical injuries of the plaintiff, so far as they 
 affect his capacity to labor or carry on a business.* 
 Third, the incapacity of the plaintiff to increase his 
 wages or to improve his income in the future. '^ 
 
 Occupation and Rank. The occupation and rank of the 
 plaintiff in life are often to be considered in estimating 
 damages, where the injuries are permanent, in order to 
 determine the actual damages which he has sustained." 
 
 Household and Hotel Work. Earnings not Shown. 
 
 A diminished capacity to earn money was held to be a 
 proper element of damages although the amount the 
 injured person could earn before the injury, and the 
 amount she could earn afterward, was not shown; but 
 her diminished capacity to do the work she was accus- 
 tomed to do about the hotel was shown; and the court 
 should have submitted that question to the jury or rather 
 her diminished capacity to earn money.' It was proper 
 for the plaintiff to show the work she could do about the 
 
 1 Alabama, etc. Railway Co. v. Yar- Houston, etc. Railroad Co. v. Boehn, 
 
 brough, 83 Ala., 3, 238 Am. St. Rep., 57 Tex., 152. 
 
 715_ ^ Winters v. Hannibal, etc. Railroad 
 
 'Simonsou V. Railway Co., 49 Iowa, Co., 39 Mo. 468; But this case was 
 
 87. overruled in Dayharsh v. Railway Co. 
 
 ^Central Rd. & Banking Co. v. 103, Mo. 570; Pennsylvania Railway 
 
 Passmore, 90 Ga., 203, 15 S. E. Rep. Co. v. Books, 57 Pa. St., 339; Moore 
 
 760. V. Railroad Co., 47 Iowa, 688. 
 
 *Tottei V. Railroad Co., 11 Fed. ' Fordyce, Receiver, v. Withers, 1 
 
 Rep., 564. Tex. Civ. App. 540, 20 S. W. Rep., 
 
 5 Fair v. Railroad Co., 21 L. T. 326; 766. 
 
56 DIMINISHED EARNING CAPACITY. 98 
 
 household and was accustomed to do before the injury, 
 but could not do since. Such evidence is not too remote 
 nor is it a matter for experts.^ 
 
 Total or Partial Disability. The measure of damages 
 for a bodily injury wholly incapacitating the person in- 
 jured from work for a time, and partially incapacitating 
 for a further time, is the amount he could have earned 
 during that incapacity, and the amount of the decrease 
 during partial incapacity, with a reasonable sum for pain 
 and suffering.^ 
 
 Increasing Disability. Where it appears that the re- 
 sulting disability will not probably become less, consid- 
 ering the lapse of time since the injury, and that if the 
 plaintiff has any rheumatic trouble it will probably center 
 in his injured leg. Such evidence was admissible to show 
 the probable effect of the injury.' 
 
 Disability must be reasonably certain. In Stafford 
 V. Oskaloosa, 64 Iowa, 251, it was said: "The plaintiff 
 may receive all the damages proceeding continuously from 
 the injury up to the present time and also such as it is 
 reasonably certain he will continue to suffer in the future," 
 and the jury "should consider his occupation, business 
 or profession, and the extent and value of the business 
 at the time of the injury, if any is shown, upon his ability 
 to pursue his calling and business. " Damages for per- 
 manent injuries cannot be allowed unless it is reasonably 
 certain from the evidence that the injury will be perma- 
 nent. It is not sufficent that there be a reasonable proba- 
 bility that the injury will be permanent and lasting.* 
 
 The jury should not allow damages for future effects of 
 an injury where the testimony simply shows that the 
 injuries were likely to be permanent, and not a reason- 
 able certainty that they would be.^ 
 
 'Young V. Detroit^ p h. & M. (N. Y.) 18 N. Y. Supp., 561; In Mo. 
 Railroad Co., 56 Mich. , 430. Pac. Rd. Co. r. Mitchell, 75 Tex., 78, 
 
 99fi fin M w ^^"^^It ^°- ^^ ^°^^' *^^ Supreme Court approved the lol- 
 
 226 60 N. W Rep., 537. lowing charge: "To entitle the 
 
 s« ^f°,f ^^007^ ""■ ^'■*''° Township, plaintifiF to recover for future dam- 
 
 ° ri^m:.' d -1 r^ on ,.r. ^^^8 there must be a reasonable cer- 
 
 S71 \fi aJ:' ^""i""^^ B^o- *^ ^"•' ^^'""^y ^^ t° ^"""^ ^"f^'-e damages; a 
 
 5 kilter p ,^^P-^ ^n- «o „ "^^'^ probabilitv of its occurrence is 
 
 "Meetery. Railroad Co., 63 Hun. not enough." 
 
99 DIMINISHED EARNING CAPACITY. 
 
 56 
 
 Absolute Certainty not Required. While absolute 
 certainty as to the result of an injury should not be 
 required, yet a mere conjecture or even a probability does 
 not warrant the giving of damages for future disability, 
 which may never be realized. The future efiPect of the 
 injury should be shown with reasonable certainty, to 
 authorize damages upon the score of a permanent in- 
 jury-' 
 
 Future Damages not Discretionary. The amount of 
 compensation for loss of future earnings due to personal 
 injuries cannot be assessed by a jury at discretion, irre- 
 spective of any facts and evidence of the injured party's 
 age, expectancy of life, business habits, earning capacity 
 and the like.' 
 
 Resultant Disability. In assessing damages for per- 
 manent injuries the jury may consider the resultant dis- 
 ability for future work and consequent pecuniary loss.* 
 
 Dissolution of Partnership. Where the plaintiff has 
 by the personal injuries received been compelled to dis- 
 solve a partnership, it has been held that evidence of 
 such circumstances is admissible.* But it was held 
 admissible for the reason that it tended to show the extent 
 of the injury and its eifect upon his ability to follow his 
 ordinary business. 
 
 Loss of Power to Read. Evidence that the plaintiff 
 could read and was studying medicine and going to school 
 before the injury, but could not read after the occurrence, 
 is admissible.^ 
 
 1 Louisville Southern Rd. Co. v. formity, which the doctor has said 
 
 Minogue, 90 Ky., 396, 29 Am. St. Rep., resulted from this accident. This is 
 
 378 ; Gregory v. Railway Co., 8 N. Y., a fnatter, gentlemen, left entirely to 
 
 Supp., 525; Bateman V. Railroad Co., your own discretion and judgment. 
 
 47 Hun. (N. Y.I, 429; Mo Pac. Ry. If there is a permanent injury and 
 
 Co. V. Mitchell, 75 Tex,, 78. deformity arising from the accident, 
 
 "Seaboard Mfg. Co. v. Woodson, 98 then the principal question for you 
 
 Ala., 378; Collins v. Leafey, 124 Pa. to determine is how far it has injured 
 
 St., 203, 16 Atl. Rep., 765, where the his earning capacitj." The Supreme 
 
 court instructed the jury :" Now in Court held this instruction to be 
 
 estimating damages, you are to con- wrong because it did not state the 
 
 sider in a case of this kind only the proper rule for estimating damages, 
 
 pain and suiFering of the child in con- 'Peoria Bridge Association v. 
 
 sequence of the injury. There is no Looniis, 20 111,, 235. 
 
 rule of law to assist you in arriving at * International & G. N. R. Cp. v. 
 
 a conclusion. This is a matter entire- Irvine, 64 Tex. 529, 23 Am. & Eng. Rd. 
 
 ly for yourselves. He is entitled to Cases, 518. 
 
 compensation for, first of all, the de- ^ Bruce v. Beall, 99 Tenn,, 303. 
 
2 57 DIMINISHED EARNING CAPACITY. 100 
 
 § 57. Earnings Since Injury. It is proper for the 
 jury to consider the amount which the injured person 
 has been able to earn since the injury/ in the same or 
 some occupation other than that in which he was engaged 
 before the injury f or what he would have been able to 
 earn in any other employment for which he was prepared 
 had he not been injured." 
 
 Otlier Occupations. In Seaboard Mfg. Co. v. Wood- 
 son, 98 Ala., 378, it was held proper for the plaintiff to 
 show his impaired capacity in the employment in which 
 he was engaged at the time of the injury, or in any other 
 occupation for which he was fitted. In Grimmelman v. 
 Railway Co., iOl Iowa, 74, in an action for damages for 
 causing the death of plaintiff's intestate who was em- 
 ployed at the time of his injury as a wiper of an engine, it 
 was held admissible to show the wages which the dece- 
 dent had been able to earn in other occupations. In Lin- 
 'ton Coal Co. v. Persons, 15 Ind. App.,69, it appeared that 
 the plaintiff was a coal miner, and in an action for dam- 
 ages for personal injuries, it was held proper for the jury 
 to consider the ability of the plaintiff to earn money, not 
 only in the occupation of a coal miner, but in any occu- 
 pation or business. 
 
 Temporary Employment. If it appears that the 
 plaintiff when he was injured was engaged temporarily in 
 work other than his regular employment, it is proper to 
 give evidence of the average earnings of the plaintiff in 
 his regular occupation.* 
 
 Same Earnings. Ylf it should appear that the plaintiff 
 has been able to earn as much money since the injury as 
 he did before, it is improper for the jury to consider the 
 element of the loss of earning capacity in determining 
 the amount of damages.^ 
 
 iKnapp V. Railway Co. ,71 Iowa, 41; 177; Chicago v. Edson, 43 III., App.' 
 
 Moore v. Kalamazoo, 109 Mich., 176 417 ; Helton v. Railroad Co , 97 Ala. 
 
 66 N. W. Rep., 1089 ; Texas, etc., Rd. 275; Seaboard Mfg. Co. v. Woodson 
 
 Co. V. Davidson, 3 Tex. Civ. App., 98 Ala., 378 ; Grimmelman v. Railroad 
 
 542; Linton Coal etc., Co. v. Persons, Co., 101 Iowa-, 74. 
 
 15 Ind. App., 69. * Galesburg v. Hall, 45 111. App., 290. 
 
 ^Goodhart v. Railroad Co., 177, * Mexican Centr. Rd. Co. v Mitten, 
 
 P*- St- 1- „ ^ 13 Tex. Civ. App., 653 ; Kane v Rail- 
 
 « Mt. Adams & E. P. In. P. Ry. Co. v. way Co., 85 Ga., 858 
 Isaacs, 10 O. Circ. Dec, 49, 18 O. C. C, 
 
I I DIMINISHED EARNING CAPACITY. § 58 
 
 § 58. Line of Promotion. It is inadmissible to 
 show, in an action for a personal injury, the chances of 
 the pi-omotion of the plaintiff to a higher position in the 
 business, occupation or line of work in which he was 
 engaged at the time of the injury, and of obtaining higher 
 wages in case he was promoted.' 
 
 The rule and reasons for it are well stated in the cas6 
 of Richmond & D. R. Co. v. Elliott, 149 U. S., 266. The 
 .court says : "It appears that the plaintiff was working in 
 the capacity of coupler and switchman for the Central 
 Company, and had been so. working for between four 
 and five years ; that he was twenty-seven years of age 
 and in good health and receiving $1.50 per day. He was 
 asked this question: 'What were your prospects of ad- 
 vancement, if any, in your employment on the railroad 
 and of obtaining higher wages. ' In response to that and 
 subsequent questions he stated that he thought that by 
 stayinff with the company he would be promoted ; that in 
 the absence of the yardmaster, he had sometimes dis- 
 charged his duties, and also in like manner temporarily 
 filled the place of other employees of the company of a 
 higher grade of service than his own ; that there was a 
 system bj" which you could go in there as a coupler or 
 trainband or in the yard, and if a man falls out you stand 
 a chance of taking his place ; and that the average yard 
 conductor obtained a salary from sixty to seventy-five 
 dollars per month. 
 
 "We think there was error in the admission of this 
 testimony. It did not appear that there was any rule on 
 the part of the Central Company for an increase of salary 
 
 'Hesse, Admx., v. Railway Co., 58 In Boyce v. Bayliffe, 1 Camp,68, it is 
 Ohio St., 167; Richmond & Danville said to have been held that, in an ac- 
 R. Co. V. Elliott, 149 U. S., 266 ; Rich- tion for false imprisonment, with an 
 mond & Danville R. Co. v. Allison, 86 allegation that the plaintiff thereby 
 Ga., 145, 11. L. R. A., 43; Brown v. lost a lieutenancy, he could not re- 
 Railway Co., 64 Iowa, 652; Chase v. cover for the loss because it was too 
 Railway Co., 76 Iowa, 675; Brown v. remote. For the same reason, in 
 Cummings, 7 Allen, 507. In Hesse, Moore v. Adams, 2 Chit. R., 198, whicb 
 Admx., v. Columbus S &H.Rd.Co.,58 was an action for assault with an alle- 
 Ohio St., 167, it was held that on the gation of special damage, an offer of 
 trial of an action by an administrator the plaintiff to prove that, in conse- 
 to recover damages when such inju- quence of the blows given to him by 
 ries have proved fatal, it is not com- the defendant, he had been driven 
 patent to call witnesses that the from Alicant, where he had before 
 deceased fireman was in the line of carried on trade as a merchant, was 
 promotion when the injuries were refused, 
 received. 
 
? 58 DIMINISHED EARNING CAPACITY. 102 
 
 after a certain length of time, or that promotion should 
 follow whenever a vacancy occurred in a higher grade of 
 service. The most that was claimed was that when a 
 vacancy took place a subordinate who had been faithful in 
 his employment, and had served a long while, had a chance 
 ■of receiving preferment. But that is altogether too prob- 
 lematical and uncertain to be presented to a jury in con- 
 nection with the proof of wages paid to those in a superior 
 employment. Promotion was purely a matter of specula- 
 tion, depending not simply upon the occurrence of a va- 
 cancy but upon the judgment, or even whim of those in 
 •control. Of course there are possibilities and probabili- 
 ties before every young person, particularly a young 
 man, and the jury in estimating the damages sustained 
 will doubtless always give weight to those general proba- 
 bilities, as well as those springing from any peculiar 
 capacities or faculties. But that is a different matter 
 from proving to the jury the Wages which some superior 
 officer receives, and then exaggerating in the minds of the 
 jury the amount of damage which has been sustained, by 
 evidence tending to show that there is a chance of plain- 
 tiff being promoted at some time to such higher office. It 
 is enough to prove what the plaintiff has in fact been de- 
 prived of; to show his physical health and strength before 
 the injury, his condition since, the business he was doing, 
 (Wade V. Leroy, 61 U. S., 20 How., 34; Nebraska City v. 
 Campbell, 67 U. S., 2 Black, 590; Vicksburg & M. R.' Co. 
 y. Putnam, 118 U. S., 545, 554), the wages he was receiv- 
 ing, and perhaps the increase which he' would receive by 
 any fixed rule of promotion. Beyond that it is not right 
 to go and introduce testimony which simply opens the 
 door to a speculation of possibilities." 
 
 In Richmond & D. R. Co. v. Allison, 86 Ga., 145 ; 11 L. 
 R. A. , 43, the plaintijEf was a postal clerk in the railway 
 service of the United States, and on the trial tke assist- 
 ant superintendent of the railway mail service under 
 whom the plaintiff was employed was permitted to give 
 testimony as to the chances of promotion. This was held 
 to be error. The court said : "We think that this evi- 
 dence shows that Allison's promotion was too uncertain 
 and the possibility of an increase of salary from $1,150 to 
 $1,300 was too remote to ffo to the jury and for them to 
 base a verdict thereon. While it is proper in cases of 
 
103 DIMINISHED EARNING CAPACITY. 
 
 58 
 
 this kind to prove the age, habits, health, occupation, ex- 
 pectation of life, ability to labor, and probable increase or 
 diminution of that ability with lapse of time, the rate of 
 wages, etc., and then leave it to the jury to assess the 
 damages, we think it improper to allow proof of a partic- 
 ular possibility, oi- even probability of an increase of 
 wages by appointment to a higher office especially where, 
 as in this case, the appointment is somewhat controlled 
 by political 'reasons." 
 
 In Chase v. Burlington, C. R. & N. Ry. Co., 76 Iowa, 
 675; 39 N. W. Rep., 196, it was held to be error to admit 
 evidence showing that there was a line of promotion in the 
 business in which the plaintiff was engaged, together 
 with the salaries of the different grades though plaintiff 
 was shown to have been so injured as to be unfit for serv- 
 ice, there being no evidence to show that plaintiff had 
 anv reason to expect promotion. Citing Brown v. Rail- 
 way Co., 64 Iowa, 656; 21 N. W. Rep., 193. 
 
 In Brown v. Cummings, 7 Allen, 507, an action was 
 brought to recover damages for assault and battery. 
 The court held that the plaintiff could not be allowed for 
 the purpose of showing special damages, to prove that by 
 reason thereof he lost a position as surgeon's mate, to 
 which he was about to be appointed, although the declara- 
 tion contained averments to that effect, because it was not 
 the proximate result of the assault and battery. The court 
 said: "It is somewhat like the ease of a merchant who 
 should offer to prove that, in consequence of an assault 
 and battery, he was unable to go to his store, and thereby 
 lost the opportunity to close a particular bargain which 
 would have been jirofitable ; or of a farmer who should 
 offer to prove that in consequence of such an act he 
 was unable to gather in his crops of grain and thereby 
 lost it." 
 
 Acquiring Capacity and Experience in Same or 
 Other Employment. Still it is admissible to show and for 
 the jury to consider the power of the plaintiff to acquire 
 a capacity for a more profitable employment in the 
 future if it had not been for the injury.^ 
 
 It is also proper for the plaintiff who at the time 
 of the injury was an acting though not skilful engineer 
 
 1 Houston & T. R. Co. v. Boehn, 57 Tex., 152, 9 Am. & Eng. Rd. Cases, 366. 
 
§ 58 DIMINISHED EARNING CAPACITY. 1 04 
 
 to testify on the question of loss of earning capacity 
 that he intended to become a competent engineer and to 
 continue such occupation permanently/ 
 
 But in International & G. N. Rd. Co. v. Armond, 64 
 Tex., 485, it was held that no standard by which to esti- 
 mate the damages for negligently killing a man can be 
 fixed, by reference to what he was earning when he died, 
 because the additional experience and skill which he 
 might acquire in some of the years of life of which he 
 was deprived, would increase his wages and create an ele- 
 ment of uncertainty in fixing any arithmetical standard. 
 Where it appears that plaintiff at the time of the injury 
 was working on a salary, it is competent to give evidence 
 of his capacity to earn more money in other employ- 
 ment.^ 
 
 Evidence of Promotion Admissible. Where the 
 injury prevented the plaintiff from performing her work 
 as stenographer, it was proper to show, as bearing on the 
 question of damages, that under her contract of employ- 
 ment, she was to receive an increase of salary in a short 
 time if her work proved satisfactory.^ 
 
 Where plaintiff had shown his earning capacity in the 
 town in which he resided, it was error to admit evidence 
 of a greater earning capacity in larger towns at that 
 time.* 
 
 A verdict for $14,000 damages for the loss of plaintiff 's 
 arm is not excessive when he was 35 years old, earning 
 $115 per month, and was in a fair way of promotion, and 
 has since been unable to do anything, and is not quali- 
 fied for any employment which does not require the use 
 of both arms.** 
 
 Where a young man 30 years of age, engaged in an 
 employment having a regular system of promotions, and 
 earning five hundred and forty dollars ($540) per year, 
 was permanently disabled, a verdict of $11,000 in an ac- 
 tion for damages therefor is not excessive." 
 
 a^\^^Vi''L^^ Co V Davis, 76 Tex., •Omaha & R. V. Railway Co. v. 
 
 630, 13 S. W Rep., 665. Ryburn, 40 Neb. , 87, 58 N. W., 541. 
 
 City of Chicago v. Edson, 43 111. "Galveston, H. & H. R Co. v. Bo- 
 
 ?%■' ; ^ I. o ,, X. .. ^^°' ''''^^- Civ. App.) 47 S. W. Rep., 
 
 ' Bryant v. Omaha & C. B. Railway 1050. 
 
 ^ ^"^^^Sf ^°' ^^ ^°^^' ^^3> 67 N. W. 8 Belair v. Chicago & N. W R Co 
 
 Rep., 392. 43 Iowa, 662. 
 
105 DIMINISHED EARNING CAPACITY. 
 
 59 
 
 .§ 59. Diminished Earning Capacity— How Com- 
 puted. There has been apparently some difficulty in 
 defining a rule by which to determine the amount which 
 should be awarded for a permanent injury. Whether an 
 injury which is permanent will increase or decrease, or 
 whether the ability to labor will become less, with 
 advancing years, is a question for the jury to consider 
 in estimating damages for a permanent injury. The rule 
 which has been laid down by the courts is not an abso- 
 lute rule for the solution of this question, for the reason 
 that each case must be determined by itself, but it will 
 serve as a guide in fixing the total amount when the 
 jury have found the loss of the earning capacity for 
 each year, and the number of years which the injured 
 person is expected to live. When these two facts are 
 ascertained, and the sum, obtained by a multiplication of 
 the loss for one year by the number of years which the 
 jury may find that such injured person may live, the 
 actual amount to be awarded for the loss of a permanent 
 injury, or diminished capacity to work and earn money, 
 is the present worth of sueli sum of money, whatever 
 the jury may find it to be. The amount to be awarded is 
 in the nature of an annuity and must not be confused or 
 misapprehended with a perpetuity. An annuity is the 
 payment of a certain sum per year, which will in a term 
 of years exhaust both principal and interest. A perpe- 
 tuity is the payment of the interest on a certain sum of 
 money each year, for a term of years, or a specified time, 
 the principal being kept intact. Keeping in mind clearly 
 the distinction between these terms, it will be easy to 
 estimate the amount of damages for a permanent injury, 
 for the reason that the damages mean the loss which the 
 injured person sustains to his earning capacity for each 
 year, and the amount ceasing to exist at the end of the 
 expectancy. The law does not contemplate that this sum 
 shall be a certain sum of money, the interest of which 
 shall be paid and the principal kept alive and intact for 
 the period of expectancy, to be paid to the next of kin. 
 The law does not seek to create a fund for any such pur- 
 pose. It seeks only to make compensation in some 
 degree for the loss of earning capacity and ability to earn 
 money, in proportion to the disaljility, which the injured 
 person has sustained. If it be a total disability, it should 
 
i 59 DIMINISHED EARNING CAPACITY. I 06 
 
 be the present worth of the total earnings of the expec- 
 tancy of the injured person. If it be a partial disability, 
 it should be the present worth of the proportionate earn- 
 ings of the expectancy, which such injured person has 
 sustained, by the decrease of his earning capacity. 
 
 General Rule. The following instruction to the jury 
 was held to prescribe a measure of damages which was 
 ' ' teGhnically accurate, ' ' to-wit : "The charge of the court, 
 as we interpret it, directed the jury to consider as one 
 element of damage the loss of the plaintiff in his earning 
 capacity hj reason of the bodily injuries, and to reach the 
 loss of his earning capacity by estimating as near as they 
 could his probable yearly earnings during his entire life, 
 and to give to him such a sTim which would purchase him 
 a life annuity equal to the difference between the amount 
 which he would have earned each year if he had not been 
 injured and that which he could earn in his injured con- 
 dition."' 
 
 In the case of John Hamilton v. The William Branfoot, 
 48 Fed. Rep., 914, a libel was filed for personal injuries 
 received on ship board. The libellant su-itained an injury 
 which required the amputation of the leg below the knee. 
 The ship was held liable for the damages. The court in 
 awarding damages for permanent injuries, said: "His 
 disability is for life, but for life only. Assuming that he 
 can get for every working day SI. 25, his income would be 
 $375.00 per annum. This would be an income of seven 
 per cent, on a capital of S5,357. But as he would be enti- 
 tled to such income only for his life, a decree giving him 
 the sum in fee would be clearly improper. In South 
 
 1 C. H. V. & T. Ry. V. Shannon, 2 O. tion for lessened ability to labor be 
 
 Circ. Dec, 644, 4 O. C. C, 449; Toledo assumed as the true measure of actual 
 
 Consolidated St.Ry. Co. v. Sweeney, 4 damages, then it would seem that it 
 
 O.Circ Dec, 11, 8 O. C. C.,298; Balti- should not be such a sura as would 
 
 more & O. Rd. Co. v. Henthorne, 19 bring an annual interest correspond- 
 
 C. C. A, 623, 73 Fed. Rep., 634. ing with the annual value of this 
 
 =„^'L^°"^*°"„^ ^- ^- ^- ^°- ^- '^i"'e. lessened ability, leaving the princi- 
 
 53 Tex. 318 37 Am. Rep., 756, the pal sum still belonging to the estate 
 
 trial court charged the jury. "If you of the plaintifF after his death, al- 
 
 find for the plaintiff, find no greater though he had become wholly inca- 
 
 sum than put at interest at the agreed pacitated for labor, but would be an 
 
 rate, will produce annually a sum amount which would purchase an 
 
 equal to the difference between what annuity equal to this interest during 
 
 plaintiff could earn before and what the probable life of the plaintiff cal- 
 
 he could now earn in consequence of culated upon a reliable basis of the 
 
 the injury. In reference to this average duration of human life." 
 charge the court said : "If compensa- 
 
107 DIMINISHED EARNING CAPACITY. § 59 
 
 Carolina (Wright v. Jennings, 1 Bailey, 277) the value of 
 the life estate as compared with the fee, is as one to two; 
 that is, one-half. The one-half of S5,357 is $2,678. 
 This would be the award were the libellant rendered 
 absolutely helpless and incapable of work. But his capa- 
 city to labor is diminished, not destroyed. Assume that 
 it is two-thirds. Allot him two-thirds of $2,678; that is, 
 $1,786; and $500.00 for pain and suffering. Let a decree 
 be entered for $2,286." The case was appealed to bhe 
 circuit court of appeals, fourth circuit, and an opinion 
 rendered by Chief Justice Fuller of the Supreme Court 
 of the United States. With reference to the damages 
 awarded, he said; "The learned district judge awarded 
 a total amount of $2,286 for the pain and suffering under- 
 gone by libellant, and the permanent diminution in his 
 capacit}' for labor. Without discussing the reasoning of 
 the court in fixing the amount, we are of the opinion 
 that the award was just, under the circumstances, and 
 should not be disturbed."' 
 
 It has been held in some courts that it is proper for the 
 jury to consider that with advancing years the capacity 
 of the plaintiff to earn money would probably diminish.^ 
 
 The plaintiff is entitled to their present worth of the 
 total loss of earnings for the period of expectancy when 
 damages are given and capitalized in a verdict for loss of 
 future diminished earning capacity." 
 
 The Sum is not a Perpetuity. The measure of dam- 
 ages for a permanent disability is not such an amount, 
 the income from which would be equal to the difference 
 between the amounts the plaintiff could have earned after 
 and before the injury, for the reason that such a sum 
 would be a perpetuity.' To do this would be requiring 
 the defendant in effect to pay to the plaintiff an annual 
 loss for the period of expectancy and in addition a gross 
 
 1 Hamilton V. The William Bran- < Kinney v. Folkerts, 78 Mich., 687 
 
 foot 3 C. C. A., 155. Chicago & N. W. Ry. Co. v. Bayfield. 
 
 "Central Railroad Co. v. Dotten- 37 Mich., 215; Houston & T. C. R. 
 
 heim 92Ga.,425; Western, etc., Rd. Co. v. Willie, 53 Tex., 318 ; Houston 
 
 Co V Moore, 94 Ga., 457 ; City of & T. C. R. Co. v. Geo. P. Barke, 55 
 
 Columbus V. Sims, 94 Ga., 483 ; Savan- Tex., 323 ; Gregory v. Railway Co., o5 
 
 nah etc., Rd. Co. v. McLeod, 94 Ga,, Hun. (N. Y.),303; Rooneyv. Railway 
 
 530 ' Co., 173 Mass , 222, 53 N. E. Rep., 435 ; 
 
 'Fulsome v. Concord, 46 Vt. 135; Morrison v. Railway Co., 38 N. Y. 
 
 Kinney v. Folkerts, 84 Mich. 616; Supp., 393. 
 Goodhartv. RailwayCo., 177 Pa. St,, 1. 
 
i 59 DIMINISHED EARNING CAPACITY. 108 
 
 sum sufficient to produce that amount at legal interest. 
 Damages cannot be ascertained or determined by the 
 number of years that the disability will continue, multi- 
 plied by the annual wages earned by the 'plaintiff in the 
 past.^ 
 
 Where the trial judge instructed the jury that "you 
 may ascertain the value of the plaintiff's services to him- 
 self before the injury and the value of his services since, 
 and ascertain the difference, and then the jury would be 
 authorized to give such a sum as would at legal rate of 
 interest, produce a sum equal, per annum, to that differ- 
 ence," the court held it to be not maintainable upon prin- 
 ciple, as thereunder ])laintiff would not only receive full 
 compensation, but in addition would receive a donation.^ 
 
 In Kinney v. Folkerts, 84 Mich., 616, the following 
 charge was sustained: "You should also consider the 
 disability entailed by the accident, actual loss of his 
 services, his inability to work, to attend to his ordinary 
 business or trade, and you should consider the extent of 
 his injury. To what extent does this injury deprive him 
 from pursuing his avocation and earning the usual com- 
 pensation or wages therefor. * * * It is difficult, if 
 not impossible, to give any definite or well defined stand- 
 ard from which to measure the loss or injury he may 
 have sustained. The question as to what amount the 
 plaintiff should be awarded rests largely in your sound 
 discretion. You should consider, however, on this 
 branch of loss and injury, the occupation of the plaintiff, 
 his ability to earn wages before the accident or injury, 
 and the extent to which such ability to earn wages has 
 been diminished or lost to the plaintiff. You may eon- 
 
 iCity of Denver v. Sherret, 88 the life of that individual, in pro- 
 Fed. Rep., 226, 236. viding that annuity or in purchasing 
 
 2 Houston & T. C. R. Co. v. Burke, that annuity ; and it is such a sum as 
 
 oL ??■ ' ^ *™- ^ -^"S- -^^ ^"^^^ "^*" probably expire with the life of 
 
 369. To same effect, Mornson v. Rail- the individual— that is, a certain sum, 
 
 wayCo., 38 N, Y. Supp.,393. In Roo- which perhaps taking the interest 
 
 ney v. Railway Co. 1 73 Mass. ,222, 53 N. and a portion of the principal each 
 
 E. Rep., 435, the court, among other year, will provide a certain sum 
 
 things, said to thejury : " As some of annually." And it was left to the jury 
 
 you know, as business men, there is to determine from this suggestion 
 
 such a thing as an annuity ; that is a how they should figure out and find 
 
 person may purchase an annuity. the amount for a permanent injury. 
 
 That annuity expires with the life of an-^l this instruction was approved by 
 
 the individual, and you have to con- the Supreme Court of Massachusetts, 
 sider the reasonable probabilities of 
 
■109 DIMINISHED EARNING CAPACITY. § 59 
 
 sider the age of the plaintiff and his reasonable expecta- 
 tion of life, which is shown by the evidence to be 36 
 yeai-s; also his habits of industry and temperance. You 
 should also consider the contingencies of a much shorter 
 life. The plaintiff may not live to the full period of ex- 
 pectancy. Also you should consider the contingencies 
 of sickness and inability to secure emploj^ment at all 
 times, as well as the fluctuations in value and demand of 
 his services, and you should make a reasonable deduction 
 for these contingencies. Whatever you may determine 
 to be his actual injury or loss of services, or inability to 
 «arn wages, you can in no event award him a greater sum 
 for this element of injury or loss than the present worth 
 of such loss. * * * I suppose that you understand 
 what the present worth of a given sum means. It is 
 arrived at by dividing a given sum by one dollar plus the 
 legal rate of interest for the given time." 
 
 In regard to the near eat measure of damages for a per- 
 manent injury ajyproximating a reasonable certainty, it 
 would he such a sum as would purchase an annuity for 
 the expectancy of the injured person, calculated upon his 
 loss of earnings as shown by all the facts and circumstances 
 of each particular case. 
 
 But the Supreme Court of Texas with reference to 
 such a rule says : " This rule for measuring damages 
 would doubtless, if it could be practically applied, more 
 nearly approach actual and just compensation than any 
 other yet devised. But we are not aware of any such 
 thing as life annuities in the market of this country. 
 * * * 
 
 " Practically no specific or definite rule of universal or 
 even general application has yet been formulated. 
 
 "That, however, which is the least liable to result in 
 complication, after all, is this : that from the facts and 
 circu7nstance.-> of each particular case, the jury should 
 award to the party injured such sum, as in their judgment, 
 would covipensate him for the injuries sustained:' ' 
 
 In Phillips V. Railway Co., 5 Q. B. D., 280; 49 Law J., 
 Q. B., 239, it was said on appeal by Lord Justice Cotton : 
 *'In my view a fair compensation for the pecuniary loss 
 
 1 Houston & T. C. R. Co. v.- Burke, 55 Tex. 323. 
 
« 
 160 DIMINISHED EARNING CAPACITY. 110 
 
 is not to be arrived at by any arithmetical process. It 
 cannot be said that the amount of the income being 
 known, the loss is reduced to a mere matter of calcula- 
 tion. Lord Coleridge (on the trial of the case) has not 
 taken this course, but he has directed the jury to look to 
 the nature of the income, the probability of its continu- 
 ance, and the circumstances upon which it depended. 
 The plaintiff is not to receive an annuity for the rest of 
 his life, calculated upon the amount of his income. It is 
 possible that he might have been disabled by illness or 
 other causes from continuing to earn it. After taking in 
 account the chances affecting the income, the jury were 
 to say what, in their opinion, was a fair compensation for 
 the disability, whether permanent or temporary, under 
 which the plaintiff came of practicing his profession, and 
 earning the income which he previously enjoyed. "j 
 
 Shortening of Expectancy. The shortening of the 
 expectancy of life by personal injuries does not consti- 
 tute an element of damages recoverable by the injured 
 person.' 
 
 § 60. Mortality Tables. When a person has become 
 permanently injured in order to show the present worth 
 of the damages sustained on account of the loss of earn- 
 ing capacity, it is necessary to determine the number of 
 years which such person is likely to live. As no one can 
 foretell the number of years allotted to any human being, 
 his expectancy can only be determined by a resort to 
 life or annuity tables. These tables are framed upon the 
 basis of the average duration of the lives of a great 
 number of persons, as compiled by physicians, actuaries 
 or other specialists. They are not considered nor held to 
 be absolutely correct, but they are substantially accurate, 
 and are practically a safe guide to determine the expec- 
 tancy of life of an individual at any given age. Of course 
 the jury should also consider the health, habits and con- 
 dition of the injured person at the time of the trial, and 
 determine from them whether he is likely to live the 
 expectancy as designated by these tables. It is for the 
 jury to find the expectancy from all the evidence, and 
 they are not bound to accept the expectancy of the tables 
 alone. They are the best evidence, however, that can be 
 
 Richmond Gas Co. v. Baker, 146 Ind. 600, 36 L. R. A. 683. 
 
II 
 
 DIMINISHED EARNING CAPACITY. 
 
 60 
 
 offered on this question, and hence life or mortality tables 
 are admissible to show the probable duration of life 
 where the plaintiff claims damages which permanently 
 diminish his capacity to earn money.' 
 
 Standard life and annuitj- tables are admissible for the 
 purpose of assisting the jury in making an estimate, but 
 the jury are not to be absolutelj' controlled by them.^ 
 Mortality tables are not conclusive evidence of the 
 
 ^ Seaboard Mfg. Co. v. Woodson, 98 
 Ala., 378 ; Mary Lee Coal & Railway 
 Co. V. Chambliss, 97 Ala. 171, U 
 South. Rep., 897 ; Richmond & D. R. 
 Co. V. Hessong, 97 Ala., 187, 13 South. 
 Rep., 209 : Louisville & N. R. Co. v. 
 Mothershed, 97 Ala. 261, 12 South. 
 Rep., 714; Louisville & N. R. Co. v. 
 Hurt, 101 Ala. 34, 13 South. Rep. 130 ; 
 Towusend v. Briggs, 99 Cal., 481, 34 
 Pac. Rep. 116, KausHS Pac. R. Co. v. 
 Lundin, 3 Colo., 94 ; City of Columbus 
 V. Sims, 94 Ga. 483, 20 S. E. Rep., 332 ; 
 Central Rd. Co. v. Richards, 62 Ga., 
 306 ; Macon, etc. Rd. Co. v. Moore, 99 
 Ga., 229; Northeastern Rd. Co. v. 
 Chandler, 84 Ga., 37 ; Richmond & 
 
 D. R. Co. V. Garner, 91 Ga. 27; City 
 of Joliet V. Blower, 155 111., 414, 40 N. 
 
 E. Rep., 619; Louisville, N. A. & C. 
 Ry. Co. V. Miller, 141 Ind. 533, 37 
 N. E. Rep., 343 ; City of Huntington 
 V. Burke, 21 Ind. App. 655, 52 N. E. 
 Rep., 415; Donaldson v. Railway Co., 
 18 Iowa, 280, 87 Am. Dec. . 391 ; Allen 
 v. Railway Co., 106 Iowa, 602, 76 N. W. 
 Rep., 848; Stomne v. Hanford Pro- 
 duce Co., 108 Iowa, 137, 78 N. 
 W. Rep., 841 ; Blair v. Madison 
 County, 81 Iowa, 313, 46 N. W. Rep., 
 1093 ; Chase v. Railway Co., 76 Iowa, 
 675; Knapp v. Railway Co., 71 Iowa, 
 41 ; Walters v. Railway Co., 41 Iowa, 
 71 ; Keyes v. Cedar Falls, 107 Iowa, 
 509, 78 N. W. Rep., 227 ; Greer v. Rail- 
 way Co., 94 Ky. 169, 42 Am. St., Rep., 
 345; 21 S. W. Rep., 649; Louisville, 
 C. & N. R. Co. v. Mahoney, 7 Bush 
 (Ky.), 235 ; Louisville & N. R. Co. v. 
 Kelley, Adm'x (Ky.), 38 S. W. Rep., 
 852 Hunn v. Railway Co., 78 Mich., 
 513 ; 7 L. R. A., 600 ; Sherwood v. Rail- 
 way Co., 88 Mich., 108; Scheffler v. 
 Railway Co., 32 Minn., 518, 21 N. W. 
 Rep., 711 ; Deisen v. Railway Co., 43 
 
 Minn., 454; O'Mellia v. Railway Co., 
 1 15 Mo., 205 ; Boettger v. Architect- 
 ural Iron Co., 136 Mo., 53 1 ; 38 S. W. 
 Rep., 298; Sellars v. Foster, 27 Neb., 
 118, 42 N. W. Rep., 907 ; City of Lin- 
 coln V. Smith, 28 Neb., 762, 45 N. W. 
 Rep., 41 ; City of Friend v. Ingersoll, 
 39 Neb , 717, 58 N. W. Rep., 281 ; 
 Sauter v. Railway Co., 66 N. Y., 50, 6 
 Hun. 446, 23 Am. Rep., 18; Davis v. 
 Standish, 26 Hun. (N. Y.), 608 ; Kraut 
 V. Railway Co., 160, Pa. St., 327; 
 Rummele v. Heating Co., (Pa. St.) 
 16 Atl. Rep., 78; Campbell v. York, 
 172 Pa. St., 205, 33 Atl. Rep., 879; 
 Steinbrunner v. Railway Co., 146 Pa. 
 St., 504, 23 Atl. Rep., 239 ; Mississippi 
 & T. R. Co. V. Ayres, 84 Tenn., 725 ; 
 Galveston, H. & S. A. R. Co. v. 
 Leonard (Tex. Civ. App), 29 S. W. 
 Rep., 995 ; Gulf C & S. F. R. Co. v. 
 Smith, (Tex. Civ. App.,) 26 S. W. Rep., 
 644 ; Gulf C, & S. F. R. Co. v. Johnson, 
 10 (Tex. Civ. App.) 254; Galveston, 
 H. & S. A. R. Co. V. Cooper, 2 Tex. 
 Civ. App. 42; Missouri, K. & T. Ry. 
 Co. of Texas v. Hines, 18 Tex. Civ. 
 App., 580, 40 S. W. Rep., 152; Missouri, 
 K. & T. Ry. Co. of Texas v. Clair, 
 51 S. W. Rep., 666; Crouse v. Rail- 
 way Co., 102 Wis., 196, 78 N. W. 
 Rep., 446; Mulcairns v. Janesville, 
 67 Wis., 24 ; McKeigne v. Janes- 
 ville. 68 Wis., 50; Vicksburg & M. 
 R. Co. V. Putnam, 118 U. S., 545; 
 Union Pac. R. Co. v. Yates, (79 Fed. 
 Rep. 584) 40 L. R. A. 553, note; Whelan 
 V. Railroad Co., 38 Fed. Rep., 15; 
 Rowley v. Railway Co., L. R. 8 
 Excheq. 221. 
 
 ^Vicksburg & M. R. Co. v. Putnam, 
 118 N. S., 545 ; Rowley v. Railway 
 Co., L. R. 8 Excheq. 221 ; Ssuter v. 
 Railway Co., 66 N. Y., 50; McDonald 
 V. Railway Co., 26 Iowa, 124. 
 
^ 60 DIMINISHKD EARNING CAPACITY. I 12 
 
 probable duration of life, and it is erroneous to confine 
 the jury to such evidence. ' 
 
 Mortality tables are not admissible until there is evi- 
 dence of the age of the plaintiff or testimony from which 
 his age may be inferred or approximated/ 
 
 It is necessary that there should be some proof as to 
 the value of the services of the plaintiff or capacity to 
 earn money, before such tables are proper evidence on 
 the question of future earnings. ^ And it is error to use 
 the annuity tables on earnings and age, without deduct- 
 ing for continuing ability to labor, for probable diminu- 
 tion of such ability by. old age, and for contributory 
 negligence on the part of the plaintiff.* If the evidence 
 is conflicting as to whether the injuries are permanent or 
 not, mortality tables may be received in evidence to show 
 the expectancy of the plaintiff's life, and to assist the 
 jury in case they find that the injuries are permanent.'^ 
 They are also admissible in evidence to prove such 
 expectancy, where the condition and health of the plain- 
 tiff are below the average or even if he is not an insura- 
 able risk, but the jury should be instructed to consider 
 the tables with reference to the evidence of the plaintiff's 
 physical condition." 
 
 They are admissible though the person killed was in 
 poor health.' 
 
 Where it appears that before the injury the plaintiff 
 was afflicted with hernia which was aggravated thereby, 
 and was also suffering from internal injuries, damages 
 cannot be based on the expectancy of life shown by 
 mortuary tables for persons of his age ; those tables 
 indicate only the expectancy of life of healthy persons.' 
 In such a case the testimony of experts is required to 
 show what plaintiff's life expectancy may be, taking 
 into consideration his ailments. But standard life tables 
 
 1 Scheffler v. Railway Co., 32 McLeod, 94 Ga. 530, 20 S. E. Rep., 
 
 Minn., 518, 21 N. W. Rep., 711; 434. 
 
 Morrison v. McAtee, 23 Oregon, 530 ; <> Richmond & D. R. Co. v. Garner, 
 
 City of Frxend v. Ingersoll, 39 Neb., 91 Ga., 27 ; Blair v. Madison County, 
 
 717; Hunn v. Railroad Co., 78 Mich., 81 Iowa, 313, 
 
 Sip- , "Arkansas, M. R. Co. v. Griffith, 63 
 
 ^Atlanta Consol. St. Ry. Co. v. Ark., 491. 
 
 Beauchamp,93 Ga. 6 ; Macon, D. & S. ' Galveston, H. & S. A. R. Co. v. 
 
 R Co. V. Moore, 99 Ga., 229. Leonard, (Tex. Civ. App.), 29 S. W. 
 
 'Macon, D. & S. R. Co. v. Moore, Rep., 955. 
 
 99 Ga., 229. « Denuian v. Johnson, 85 Mich, 
 
 'Savannah, A. & M. Ry. Co. v. 387. 
 
113 DIMINISHED EARNING CAPACITY. 
 
 § 60 
 
 when received in evidence are to be taken subject to the 
 peculiar conditions surrounding the person injured, such 
 as the existence of disease tending to shorten life, the 
 loss of one of his legs, and the extent to which he was 
 disabled from supporting himself.^ 
 
 Where it appears that the plaintiff suing for permanent 
 personal injuries has Bright's disease of the kidneys, 
 with little if any evidence to the contrarv, and none to 
 show that said injuries were the cause of the disease, the 
 court should direct the jury to consider such fact in 
 determining his loss of earning capacity and his expec- 
 tancy of life/ 
 
 Where the injured person was engaged in a more haz- 
 ardous employment than persons with reference to whom 
 the tables were compiled, that being merely a circum- 
 stance to be considered, by the jury as tending to show 
 that his expectancy of life was less than the tables would 
 indicate for his age, still such tables are admissible to 
 show the plaintiff's probable length of life.^ 
 
 Iiy viries not Permanent. Where the injuries are not 
 permanent, mortality tables are not admissible to show 
 the expectancy of plaintiff's life.' Where the injury to 
 the plaintiff only partially affected him to prosecute his 
 business and to earn money, the tables are inadmissible 
 to show his life's expectancy.^ 
 
 Pain and Suffering. Annuity tables are not admissi- 
 ble in evidence in an action for a personal injury to prove 
 the probable duration of the life of the injured person, in 
 order to show how long she is likely to live to endure the 
 pain and suffering caused by the injury." 
 
 When not Admissible. Mortuary tables showing the 
 expectancy of the life of the person are not admissible in 
 evidence in an action brought by such person's father for 
 the killing, as it would be the expectation of life of the 
 
 I Greer v. Railway Co., 94 Ky., 169, ChanibHss,97 Ala., 171, 11 South. Rep., 
 
 42 Am. St. Rep., 346. 897. 
 
 'Bunting v. Hogsett, 139 Pa. St., *Mott v. Detroit, G. H. & M. Ry. 
 
 363, 21 Atl. Rep., 31, 48 Am. & Eng. Co. 120 Mich., 127, 79 N. W. Rep., 3. 
 
 Rd. C.,87. 'City of Honey Grove v. I<amaster 
 
 'Birmingham Mineral R. Co. v. (Ter. Civ. App.), 50 S. W. Rep., 1053. 
 
 Wilmer, 97 Ala., 165, 11 South. Rep., 'Chicago, B. & Q. R. Co. v. John- 
 
 894; Mary Lee Coal & Ry. Co. v. son, 36 111. App., 564. 
 
 8 
 
? 60 DIMINISHED EARNING CAPACITY. I 14 
 
 one who was soonest to die in the ordinary course of 
 nature, which should be made the basis of an award for 
 damages.^ 
 
 Infancy Under Age of Tables. Where the plaintiff's 
 intestate was a child five years of age at the time of his 
 death, it was error to admit in evidence before the jury 
 the mortality table found in Howell's Stat., Mich., p. 
 1084, for the reason that such table gives no expectancy 
 of life for any age under ten years. The court said : 
 "The plaintiff's intestate was but five years of age, and 
 what pertinent use could be made of this table it is impos- 
 sible to see. Those at all versed in the science of long- 
 evity know that the chance of an infant of the age of five 
 to reach a remote period of existence is far less than 
 when he arrives at ten. Few, if any, insurance compa- 
 nies take risks upon lives under ten years of age. "^ But in 
 Iowa the Carlisle life tables are admissible in evidence 
 for the purpose of showing the expectancy of the life of 
 the person injured by the fact that such person was an 
 infant at the time, and nothing could be recovered for the 
 services of such person until such time as he would have 
 arrived at his majority.' 
 
 Tables not a Mathematical Basis. In determining 
 the damages for injuries causing a total permanent dis- 
 ability, the annuity tables may be considered in connec- 
 tion with all other evidence on that issue, but they can- 
 not be made the mathematical basis for estimating such 
 damages.* 
 
 Tables iri Use. The Carlisle tables are used in Indi- 
 ana, Iowa, Nebraska, Minnesota, Pennsylvania, Florida, 
 Missouri, New York and Texas. The Northampton 
 tables are used in Iowa, Florida, Georgia, Minnesota, 
 Missouri, New York, Nebraska,- Pennsylvania and Texas. 
 The American tables of mortality are used in Alabama, 
 Kentucky and Missouri. Standard mortality tables are 
 used in California, Georgia and Tennessee, and may 
 include any one of the above. The Encyclopedia 
 Britannica is admissible to show the Carlisle tables.' 
 
 1 Illinois C. R. Co. v. Crudup, 63 'Crouse v. Railway Co. 102 Wis. 
 
 Miss. 291. 196, 78 N. W. 446. 
 
 T,T^°Jfi?r.Vx/-,„^^"'^*y..^°-' ^8 'Worden V. Railway Co., 76 Iowa, 
 
 Mich 681, 41 N. W. Rep., 847. 310, 41 N. W. Rep., 26 ; se4 Gorman 
 
 » Walters V. Railway Co.,41Iowa,71, v. Railway Co., 78 Iowa, 509, 43 N. 
 
 W. Rep., 303; Haden v. Railway 
 
 Co., 99 Iowa, 735. 
 
I 15 DIMINISHED EARNING CAPACITY. 
 
 60 
 
 The Northampton and American life tables contained 
 in volume 3, Johnson's New Universal Encyclopedia are 
 admissible in evidence, the work being standard, and well 
 known.' Mortality tables used by reputable insurance 
 companies are admissible in evidence/ 
 
 The American Experience table which is a standard 
 table and has long been recognized both by statutes and 
 by courts is admissible.' Tables prepared by the 
 American Legion of Honor may be used by a witness in 
 his testimony to show estimates of the probable duration 
 of lives of men at different ages, when it is not claimed 
 that they are not correct.* 
 
 Wigglesworth life tables are competent evidence to be 
 given to a jury in an action to recover damages for negli- 
 gently causing the death of plaintiff's intestate.' 
 
 The Flateheraft Insurance Manual with the mortuary 
 tables therein isadmissible to prove the life's expectancy 
 of the deceased when it was shown that it was a standam 
 authority among insurers.^ 
 
 The best use of mortality tables is summarized by the 
 Supreme Court of the United States in the case of Vicks- 
 burg & M. R. Co. v. Putnam, 118 N. S., 515. The court 
 said: "In an action for a personal injury the plaintiff is 
 entitled to recover compensation, so far as it is suscepti- 
 ble of an estimate in money, for the loss and damage 
 caused to him by defendant's negligence, including not 
 only expenses incurred for medical attendance, and a 
 reasonable sum for his pain and suffering, but also a fair 
 recompense for the loss of what he would otherwise have 
 earned in his trade or profession, and been deprived of 
 the capacity of earning by the wrongful act of the 
 defendant," citing authorities. 
 
 "In order to assist the jury in making such an estimate, 
 standard life and annuity tables showing at any age the 
 probable duration of life and the present value of a life 
 annuity are competent evidence,'' citing authorities. 
 
 iScagel V. Railway Co., 83 Iowa, *San Antonio & A. P. R. Co. v. 
 
 380, 49 N. W. Rep., 990. Bennett, 76 Tex., 151, 13 S. W., 319. 
 
 « Mississippi & T. R. Co. v. Ayres, ^ Louisville & N. R. Co. v. Kelly's 
 
 84 Tenn., 726. Adm'x, (Ky.) 38 S. W. Rep., 852. 
 
 ' Boettger t. S. & K. Architectural " Missouri, K. & T. Ry. Co. of 
 
 Iron Co., 136 Mo„ 531. Texas v. Ranson, (Tex. Civ. App.), 
 
 41 S. W. Rep., 826. 
 
g 60 DIMINISHED EARNING CAPACITY. I 1 6 
 
 "But it has never been held that the rules to be 
 derived from such tables or computation must be the 
 absolute guides of the judgment and consciences of the 
 jury. On the contrary, in the important and much con- 
 sidered case of Phillips v. Railway Co., 5 Q. B. D. 78, the 
 judges strongly approved the usual practice of instructing 
 the jurv in general terms to award a fair and reasonable 
 compensation, taking into consideration what the plaintiff's 
 income would probably have been, how long it would have 
 lasted, and all the contingencies to which it was liable, 
 and as strongly deprecated undertaking to bind them by 
 mathematical rules in deciding a question involving so 
 many contingencies, incapable of exact estimate or 
 proof." 
 
 The instructions of the court to the jury as to the 
 measure of damages were held to be incorrect : First, 
 because their effect was to permit the jury take into 
 consideration twice over one element of damage, and second^ 
 because they gave the jury to understand that the tables 
 introduced furnished absolute rules to be applied by 
 them in estimating the probable duration of life of the 
 plaintiff and the extent of the injuries which he had suf- 
 fered. The court concludes. 
 
 ' ' Life and annuity tables are framed upon the basis of 
 the average duration of the lives of a great number of 
 persons. But what the jury in this case had to consider 
 was the probable duration of the plaintiff's life, and of 
 the injury to his capacity to earn his livelihood. Upon 
 the evidence before them it was a controverted question 
 whether that injury would be temporary or permanent. 
 The instruction either taken by itself or in connection 
 with the whole charge tended to mislead the jury, by 
 obliging them to ascertain the average injury to the 
 plaintiff's capacity by the year, whether the extent of 
 that injury would be constant or varying ; and by giving 
 them to understand that the tables were not merely com- 
 petent evidence of the average duration of human life and 
 of the present value of life annuities, "but furnished abso- 
 lute rules which the law required them to apply in esti- 
 mating the probable duration of the plaintiff's life and the 
 extent of the injury to which he had suffered." 
 
 To the same effect in a well rea- Co. v. Needham, 3 C. C. A., 129, 52 
 soned case, St. Louis, I. M. & S. Ry. Fed. Rep., 371. 
 
1 1 7 DIMINISHED EARNING CAPACITY. ? 60 
 
 In England it was said many years ago by Baron 
 Parke, in charging the jury in the case of Armstrong v. 
 Railway Co., ] 1 Jur., 7o8 : " You are not to consider the 
 value of his existence as if you were bargaining with an 
 annuity office ; for in that case you would have to calcu- 
 late all the accidents which have occurred to him in the 
 course of it which would be a very difficult matter. I 
 therefore advise you to take a reasonable view of the 
 case, and give what you consider a fair compensation." 
 In Goodhart v. Pennsylvania, 177 Pa. St., 1, the court 
 concludes : "The verdict rendered by the jury gives the 
 calculation upon the enormous sum awarded to the plain- 
 liff was based. Prom this it appears that the sum of 
 819,526.50 was given as the cost of an annuity o^ $1,750 
 per annum for nineteen years. This calculation assumes, 
 firsts that the plaintiff's earning power was nearly twice 
 as great as he had himself offered it for to the company 
 whose president and manager he was. It assume, sec- 
 ond, that he had reasonable. expectation of life for nine- 
 teen years, being- at the time of the trial about fifty-three 
 years old. It assumes, third, that his earning power, 
 instead of steadily decreasing with increasing years, 
 would hold up at its maximum to the very end of life. 
 It assumes, in the fourth place, that he is entitled to 
 recover, not only the present worth of his future earn- 
 ings, as the jury has estimated them, but a sufficient sum 
 to go out into the market and purchase an annuity now 
 equal to his estimated earnings. The first, second and 
 third of these are assumptions of fact. The fourth is an 
 assumption of law and is clearly wrong. When future 
 payments are to he anticipated and capitalized in a verdict 
 the plaintiff is entitled only to their present xoorth. This is 
 the exact equivalent of the anticipated sums." 
 
 In Grant v. Union Pac. Ry. Co., 45 Fed. Rep., 673, on 
 this question the court charged the jury as follows : "In 
 such cases as this you are entitled to take into account 
 the facts surrounding the injured party, his age, possible 
 expectancy of life, and the position he occupied and the 
 amount of money he earned. When a person is engaged 
 as a laborer, and his wages are so much, of course the 
 money loss to him is not so great as if he occupied a 
 higher position and had higher ability to earn money. A 
 man who can earn a thousand dollars a year and is 
 
,i 60 DIMINISHED EARNING CAPACITY. IIS 
 
 deprived of his ability to do so, does not of course suffer 
 as great pecuniary loss as though he were able to earn 
 $2,000. Still, as I have said, all the parties can do is to 
 bring in evidence showing what the facts and circum- 
 stances are in each particular case— the age of the plain- 
 tiff, his habits of life, his ability to earn money, his occu- 
 pation, and the effect upon these of the injury he has 
 received. Evidence has been introduced showing his 
 expectancy of life. Now it is not understood that you 
 shall take the expectancy of life of a man, and then figure 
 up that he has been deprived of his ability to earn so 
 much money for each one of those years. This would 
 not be a fair way of estimating the damages, because as 
 we all know, it is impossible to determine whether a man 
 will live out this expectancy of life or not. These insur- 
 ance tables are based upon the probabilities of the average 
 human life. It may be this man if he had not received ' 
 the injury would not have lived a year, and he may live 
 longer than the expectancy of his life. There are so 
 many uncertainties and contingencies in human life. We 
 cannot say whether this man would have continued to 
 earn $50 per month, and on the other hand he might have 
 earned a larger amount. So you cannot take this and 
 figure it out on a mathematical basis ; but taking all 
 these facts into account, and remembering the uncertain- 
 ties and contingencies of human affairs, it is for the jury 
 to determine the fair lump sum which will compensate 
 the plaintiff for the pecuniary damage caused him by the 
 injuries he has received." 
 
 In an action for personal injuries the jury was 
 instructed that if plaintiff is " permanently in jured, you 
 may refer to the mortality tables in evidence to ascertain 
 the number of years which a man of plaintiff's age may 
 be expected to live. Then ascertain from this what his 
 earning capacity is for one year. If his earning capacity 
 has been diminished, then take the proportion of what he 
 could have earned and multiply it by the number of years 
 of his expectancy." This was held proper.' 
 
 iCity of Columbus v. Sims, 94 Ga., 483, 20 S. E. Rep., 332. 
 
' I 9 DIMINISHED EARNING CAPACITY. 
 
 ? 61 
 
 ^ 61. Expert Testimony. The value of the earning 
 power of a person who may receive an injury and suffer a 
 loss thereby, is not to bR determined or settled by expert 
 testimony.^ 
 
 In Goodhart v. Railroad Co., 177 Pa. St., 1, the court 
 said: "An expert in banking or mercantile business 
 might form an opinion about what a man possessing given 
 business qualifications ought to be able to earn, but this 
 is not the question the jury is to determine. They are 
 interested only in knowing what he did actually earn or 
 what his services were reasonably worth prior to the 
 time of the injury. In settling this question, they should 
 consider not only his past earnings, or the fair valufe of 
 such services as he was able to render, but his age, state 
 of health, business habits, and manner of living."' 
 
 In Central R. Co. v. Senn, 73 Ga., 705, 23 Am. & Eng, 
 Rd. Cas., 304, the court said: "In cases of this character 
 the rule is well settled both in our standard works on 
 evidence and by adjudicated cases, that witnesses, 
 whether parties to the case or not, cannot give their opin- 
 ion as to the amount of damages the plaintiff has sus- 
 tained. They must state the facts, and not mere opin- 
 ions, and the jury must be left free to make up their own 
 opinion of the damages from the facts testified to by the 
 witnesses. 9 Meeson and Welsby, 710; 1 Sedgwick on 
 Damages, 553; 47 Ga., 546; 18 Wis., 74. The plaintiff 
 may prove all the facts and circumstances which would 
 shed light upon the question, and enable the jury to arrive 
 at the true amount of damages actually sustained. In 
 this case she might show the character of her business, 
 her ability to labor and attend to business at the time of 
 the injury; how she was injured and what has been her 
 ability to labor and transact business since the injury, 
 and every other fact which would show that she was dam- 
 aged in her business by reason of her inability to labor; 
 and the jury with all the facts before them should make 
 up their opinion from the facts as to the amount of dam- 
 ages.'" 
 
 'Young V. Railway Co., 56 Mich., ^gee McHugh v. Schlosser, 159 Pa. 
 
 430; Houston & T. C. Ry. Co. v. St., 480, 39 Am. St. Rep. 699. 
 
 Burke, 55 Tex., 323, 9 Am. & Eng. R. 'See Hurt v. Railway Co. 94 Mo., 
 
 C, 59. 255, 34 Am. & Eng. Rd. Cas., 422. 
 
§ 62 DIMINISHED BARNING CAPACITY. 120 
 
 § 62. Profits. The question whether a person may 
 offer in evidence the profits which he makes out of his 
 business to show the loss of his earning capacity, in ease 
 of a permanent injury has been heretofore discussed in the 
 consideration of damages for loss of time, and what was 
 said and the authorities cited apply with equal fofce for 
 the recovery of damages for loss of diminished earning 
 capacity.^ 
 
 It is hardly necessary to cite the same authorities 
 again. The distinction between what is termed 
 profits and earnings must be kept in mind and when 
 this is clearly defined and applied, the question of 
 the admission of evidence to show or not to show profits 
 becomes less difficult of solution. As has been truly 
 said: " The loss of earning power is always easy of cal- 
 culation. It involves an inquiry into the value of the 
 labor, physical or intellectual, of the person injured before 
 the accident happened to him, and the ability of the 
 same person to earn money by labor, physical or intellect- 
 ual, after the injury was received. ' ' ^ Then there must be 
 kept in mind also the distinction between manual and in- 
 tellectual labor. While both are labor, they are different 
 in character and nature. The ways of one is fixed by 
 custom, or agreement, while the other depends largely 
 on skill, experience, and knowledge, and the wages of the 
 latter are largely due to the responsibility involved and the 
 success of the efforts. The value of these services may 
 be determined with some degree of accuracy by showing 
 the income of such person for a period of years prior to 
 the injury, and the amount that he has been capable of 
 earning since then. But both of these services come 
 within the class of earnings and do not partake of any of 
 the characteristics or features of profits. 
 
 Profits derived from an investment or the manage- 
 ment of a business enterprise are not earnings. The 
 deduction from such profits of the legal rate of interest 
 on money employed does not give to the balance of pro- 
 fits the character of earnings. The word ' earnings ' 
 means the fruit or reward of labor, the price of services 
 performed. Anderson Law Diet., 390. Profits repre- 
 sent the net gain made from an investment, or from the 
 
 1 Post. Chap. 5, Sec. 62. J Goodhart v. Pennsylvania Railway 
 
 Co., 177 Pa. St., 1. 
 
121 DIMINISHED EARNING CAPACITY. § 62 
 
 prosecution of some business, after payment of all ex- 
 penses incurred. The net gain depends largely on other 
 circumstances than the earning capacity of the persons 
 managing the business. The size and location of the town 
 selected, the character of the commodities dealt in, the 
 degree of competition encountered, the measure of pros- 
 perity enjoyed by the community, may make an enter- 
 prise a decided success which under less favorable cir- 
 cumstances in the hands of the same person might turn 
 out a failure. The profits of a business with which one 
 is connected cannot therefore be made use of as a meas- 
 ure of his earning power. Such evidence may tend to 
 show the possession of business qualities, but it does not 
 tend to fix their value. ^ 
 
 Evidence of the past profits of a commercial business, 
 whfere the business is of such a character that the profits 
 are uncertain, is incompetent,^ for the reason that the 
 basis of estimating damages is too uncertain and specu- 
 lative in character.' It is error to allow evidence of pro- 
 fits where they depend upon skill and capital combined ; * 
 also profits of the sales of property which plaintifi" would 
 have made by superintending it himself, but which he 
 was not willing to trust to other parties. ^ 
 
 The loss of profits in a business which involves the 
 labor of others, which arise on account of the suspension 
 of the business on account of the personal injury cannot 
 be shown, but a recovery may be had for what his serv- 
 ices were worth in conducting the business.' 
 
 Where a partnership of which plaintiff was a member 
 employed the personal services of its members, and 
 where its earnings were in no sense dependent upon the 
 use of capital or subject to the risks of business enter- 
 prises, it is proper for the plaintiff to show what his 
 share of the proceeds of the partnership business was per 
 month, and to what extent the injuries received by him 
 impaired his usefulness to perform his duties.'- 
 
 1 Boston & A. Railroad Co. v. * Johnson v. Manhattan Railway 
 
 O'Reilly, 158 U. S., 334; Goodhart v. Co., 52 Hun., 111. 
 Railroad Co., 177 Pa. St., 1; Malone *Phyfe v. Railway Co., 30 Hun., 
 
 V. Railroad Co., 152 Pa. St., 390; 377. 
 
 Masterton v. Mt. Vernon, 58 N. Y., « Silsby v. Michigan Car Co., 95 
 
 391. Mich., 204. See Winter v. Railway 
 
 « Post. Ch. 5, Sec. 52 ; Masterton v. Co., 74 Iowa, 448; 38 N. W. Rep,, 154 ; 
 
 Mt. Vernon, 58 N. Y., 391. City of Ripon v. Bittel, 30 Wis., 614. 
 
 ' Bierbach v. Goodyear Rubber Co., ' Thomas v. Union Ry. Co., 18 N. Y. 
 
 54 Wis., 208. App. Div., 185. 
 
§ 63 DIMINISHED EARNING CAPACITY. 122 
 
 Where one engaged in business is personally injured 
 and brings action for damages resulting therefrom, the 
 profits of his business are not the measure of damages 
 for a loss of time, ability, and opportunity to earn 
 money. ^ 
 
 Evidence that since the accident the plaintiff has not 
 been able to do work in the boarding house kept by her is 
 admissible to show loss of earning capacity in her busi- 
 ness of keeping a boarding house. Such evidence is 
 not objectionable on the ground that it tends to show loss 
 of profits.^ 
 
 Evidence may be given of the age of the party injured, 
 the probable duration of life, the effect. the injury has had 
 upon the ability of the person to earn money, of the prob- 
 ability that the injurious effect on the ability to earn 
 money will continue in the future, either during life or 
 for a lesser period, and of the business or occupation in 
 which the person was engaged, and the Gompensation, 
 whether by wages, fees, by a fixed salary or profits, that 
 resulted therefrom / and from the facts thus proven, com- 
 pensate the party for the decreased or destroyed ability 
 to earn money in the future, due allowance being made 
 for contingencies and uncertainties that inhere in such 
 matters. Shiras, J., in City of Denver v. Sherret, 88 
 Fed. Rep., 226. 
 
 § 63. Actions for Two Personal Injuries — Perma- 
 nent Disability in Each Case. When it appears that 
 the plaintiff has sustained injuries for which an action is 
 brought, alleging permanent disability to pursue his 
 occupation, and before the cause is tried, he meets with 
 another accident and receives an injury caused by the 
 negligence of the same defendant, and brings another 
 action for the second injury, and a verdict having been 
 rendered on the trial of the first action in his favor, there 
 can be no recovery in the second action for damages for 
 any permanent disability, unless it is shown to have 
 resulted in incapacity to do something which he could 
 have done after the first injury.' 
 
 1 Marks V. Railway Co., 14 Daly, 61. the injury, and for any increase or 
 
 oon ^' -^^'^^^y ^°< ^'^2 Pa. St., aggravation of the old injuries caused 
 
 ?; « 1 « ., „ ^y ^^^ second accident. The former 
 
 o/;^° /°^ ^^•^^*'''^y^°-'^^^^-"^-' judgment was conclusive as to all 
 
 244; 4 Am Neg. Rep., 426, the matters within its scope, and no proof 
 
 court held that « recovery could be could be given of any claim settled 
 
 had for any new damages caused by by such judgment 
 
«23 DIMINISHED EARNING CAPACITY. §64 
 
 § 64. Impairment or Destruction of the Prospects 
 of Marriage. The wrongdoer is responsible for ail the 
 damages resulting from his negligent act. Any impair- 
 ment or destruction of any faculty of the mind, or physi- 
 cal power, function, or capacity, becomes a question for 
 the consideration of the jury in the estimate of damages 
 to be awarded by them. If the injury is of such a 
 character as to render the man impotent, or to cause 
 child-bearing on the part of the woman dangerous or im- 
 possible, or to lessen or destroy the prospects of mar- 
 riage on the part of a child, the injury so occasioned 
 becomes an element of damages for which a recovery 
 may be had.^ 
 
 In Denver & R. G. Ry. Co. v. Harris, 122 U. S., 597, 
 it was held that where one of the consequences of a 
 wound caused by the defendant's wrongful act was to 
 render the plaintiff impotent, evidence thereof is admis- 
 sible although the declaration does not in terms so 
 specify; and the jury may consider such impotency in es- 
 timating damages. 
 
 In Alabama Gr. South. R. Co. v. Hill, 93 Ala., 514, it 
 appears that the plaintiff's injuries were of such a 
 character as to render child-bearing perilous to her life. 
 The court said: "It is to be assumed that every 
 physical endowment, function, and capacity is of import- 
 ance in the life of every man and woman, and that occa- 
 sion will arise for the exercise of each and all of them. 
 And to that extent to which any function is destroyed, 
 or its discharge rendered painful or perilous, by the 
 wrongful infliction of personal injury, is the party com- 
 plaining entitled to damages. We can, in other words, 
 conceive of no physical injury wrongfully inflicted, 
 whether entailing pain only, or disfigurement or incapa- 
 city, relative or absolute, to perform any of the functions 
 of life, which may not be made the predicate for compen- 
 sation in damages." 
 
 In Smith v. Railway Co., 90 Fed., Rep., 783, the court 
 held, where a personal injury to a little girl is such as to 
 
 1 Fullerton V. Fordyce, 144 Mo., 519, of Birmingham v. Lewis, 92 Ala., 352; 
 
 44 S. W. Rep., 1053 ; Denver & R. G. Smith v. Ry. Co., 90 Fed. Rep., 783; 
 
 Ry. Co. V. Harris, 122 U. S., 597 ; Ala- Missouri, K. & T. Ry. Co. of Texas 
 
 bama Gr. South. R. R. Co. v. Hill, 93 v. Cook, (Tex. Civ. App.) 33 S. W. 
 
 Ala., 514 ; 30 Am. St. Rep., 69; Mayor Rep., 669. 
 
§§ 65-66 DIMINISHED EARNING CAPACITY. 124- 
 
 seriously impair her prospects of marriage when she 
 reaches a marriageable age, such fact may properly be 
 considered by the jury as an element of damages result- 
 ing from the injury, 
 
 § 65. Damages for Injury to Health. It is the 
 
 effect of the injury which fixes and determines the liabil- 
 ity of the wrongdoer for any act of negligence on his 
 part. If the injury affects the health and strength of the 
 injured person or will continue to atfeet his health and 
 strength in the future, then the extent of such injury in 
 that respect will constitute an element of damages, for 
 which a recovery may be had.^ 
 
 In City of Toledo v. Clopeck, 9 Circ. Dec, 432, 17, C. C, 
 585, the circuit court approved the following charge of the 
 trial judge : " She can recover for the hurt, for the pain 
 she has sufiered, the loss of her health since the injury 
 up to this time, and recover compensation such as you 
 think proper for a weakness, sickness, bodily inf/rmity . 
 and loss of health, that she is suffering now or may here- 
 after suffer from or still suffers from on account of this 
 injury."" 
 
 In Fitton v. Brooklyn City St. Ry. Co., 5 N. Y. Supp., 
 a verdict of $5,000 was held not to be excessive for per- 
 manent injury to his health. 
 
 In Buchanan v. West Jersey R. Co. 52 N. J. L., 41, 
 plaintiff was rightfully upon the platform of the depot of 
 a railroad. She was required to throw herself prostrate 
 upon the platform to escape being struck by a piece of 
 timber projecting from a car in motion, causing a nervous 
 shock from the fright which gredtly impaired her health. 
 The court held that she was entitled to recover damages 
 for the impairment of her health. 
 
 § 66. Damages Where no Intent to Harm. Where 
 one person inflicts an injury upon another, the latter may 
 recover for the resulting damages, although there was no 
 
 'Bell V. Railway Co., L. R., 26, Ir., Co., 44 Barb., 299; Rippe v. Street 
 
 428; Keep v. Railway Co., 9 Fed. Ry. Co., 54 N. Y. Supp., 958 ; Quirk v. 
 
 Rep., 625 ; Secord v. Railway Co., 18 Seigel-Cooper Co., 56 N. Y. Supp,, 
 
 Fed. Rep., 221; Harris v. Railway 49 ; Buchanan v. Railway Co. , 52 N. J. 
 
 Co., 13 Fed. Rep., 591 ; Crew v. Rail- L., 41 ; Terhune v. Kaellesch, (N. J.), 
 
 way Co., 20 Fed. Rep., 87 ; Saldana v. 43 Atl., 655 ; Davidson v. Southern 
 
 Railway Co., 43 Fed. Rep., 862 ; City Pac. Co., 44 Fed. Rep., 481. 
 
 of Sandwich v. Dolan, 141 111., 430, 31 2 See Walker v. Springfield, 3 Dec. 
 
 N. E. Rep., 416 ; Beckwith v. Railway (Re.), 567. 
 
• 25 DIMINISHED EARNING CA-PACITY. J 67 
 
 intent to harm. It is not necessary to show an intent to 
 do harm.' 
 
 There may be an actionable assault, even if there was 
 no specific intent to do harm.* 
 
 When a party, by an act which he can not justify and 
 which he could have avoided, inflicts an injury by force, 
 he is responsible to the injured person for all the legal 
 damages sustained.^ 
 
 Where a boy thirteen years old, in sport, but waAtonly 
 threw a piece of mortar at another boy, which accident- 
 ally hit a third boy and injured his eye, the boy was 
 guilty of assault and battery.* 
 
 § 67. VERDICTS IN PERSONAL INJURY CASES. 
 
 Verdicts in the Different States. The verdicts which 
 have been collected and arranged in the succeeding sec- 
 tions under certain heads show that the litigation arising 
 from personal injuries is universal, yet a large percent- 
 age of it is found in about seven states of the United 
 States, where railroads predominate. Texas and New 
 York seem to lead in damage suits, while Illinois, Iowa, 
 Ohio, Missouri and Pennsylvania follow respectively in 
 the order named. 
 
 It will be observed that the largest verdicts are rend- 
 ered against railroads and receivers of railroads, while 
 the smallest verdicts are returned in actions against 
 townships, villages and cities. Where the pocket of the 
 taxpayer may be affected, there the judgment of the 
 juror is likewise affected. This record demonstrates 
 how prodigal human nature is when not concerned in a 
 financial way, and how parsimonious it is when financially 
 interested, even in a very small way, for the difference 
 between a large and a small verdict, or between several 
 verdicts, if such a number should be rendered in any one 
 year against any one municipality, would be so small in 
 the possible increase of taxes that it would not be known 
 or felt, unless attention should be directed especially to 
 such increase. 
 
 iVosburg V. Putney, 80 Wis., 523, 'Goldsmith v. Joy, 61 Vt, 488, 15 
 
 27 Am. St. Rep., 117. Am. St. Rep., 923. 
 
 2 Mercer V. Corbin, 117 Ind.,450, 10 *See Peterson v. Haffner, 69 Ind., 
 
 Am. St. Rep., 76. 130, 26 Am. Rep., 81. 
 
68 
 
 DIMINISHED EARNING CAPACITY. 128 
 
 While not available in trials to juries, this information 
 as to the amount of verdicts which have been rendered 
 and sustained in other states for the impairment or loss 
 of any part of the body will serve a useful purpose on mo- 
 tions for new trials or in appellate courts, where it is im- 
 portant to know just what views other courts have taken 
 in reference to what is a reasonable sum for any partic- 
 ular injury to the person, if, as is often the case, the 
 verdict, as returned in any given action, is questioned 
 or excepted to as excessive. 
 
 § 68. Damages to Mental Faculties. 
 
 $25,000; mental wreck ; Chicago & East. I11..R. R. Co. 
 V. Holland, 122 111., 461, 30 Am. & Eng. R. R. Cas., 590. 
 
 $20,000; mental wreck, totally disabled; International 
 & Gr. North. R. R. Co. v. Brazil, 44 Am. & Eng. R. R. 
 Cas., 437; 78 Tex., 314, 14 S. W. Rep., 609. ^ 
 
 $30,000; mind impaired; Harrold v. Railway Co., 24 
 Hun., 184. 
 
 $8,000 ; loss of mind ; Toledo, Wab. & West. R. Co. v. 
 Boddeley, 54 111., 19, 5 Am. Rep., 71. 
 
 $5,000; mind impaired; Kennedy v. Railway Co., 7 N. 
 Y.Supp.,221. 
 
 $2,725 ; loss of memory ; Brown v. Railway Co., 99 Mo., 
 310, 12 S. W. Rep., 655. 
 
 $3,600; plaintifE fifty-seven years old; concussion of 
 brain and spine; bruised on shoulders and chest; Paetzig 
 V. Railway Co., 33 N. Y. Supp., 854. 
 
 $5,000; paresis as the resultof the injury; McMahon v. 
 Eau Claire Waterworks, 95 Wis., 640, 70 N. W. Rep., 829. 
 
 $11,400; healthy man twenty-seven years old; receives 
 8(n injury making him a physical and mental wreck; com- 
 pound fracture of skull affecting brain and nerve of one 
 eye; Cobb v. Railway Co., 149 Mo., 609, 50 S. W. Rep., 894. 
 
 $5,000; plaintiff, twenty-two years of age, thrown vio- 
 lently to the ground, head cut, and mind seriously effected; 
 so that he was months in hospital, and on the trial was 
 in an impaired mental and physical condition; Wilhelm 
 v. Railway Co., 52 N. Y. Supp., 1090. 
 
127 DIMINISHED EARNING CAPACITY. ?? 69-70 
 
 § 69. Damages to Head. 
 
 $5,000; contusion of skull; Houston & T. C. R. Co. v. 
 Boehn, 57 Tex., 152. 
 
 87,000; skull injured; Macon & Western R. Co. v. "Winn, 
 26 Ga., 250. 
 
 84,000; table of skull fractured, both optic nerves pal- 
 sied; Hanson v. Railway Co., 62 Me., 84, 16 Am. Hep., 
 404. 
 
 $2,000; scar on forehead; Kock v. Oregon Steamboat 
 Co., 2 C. L. Jr., 473. 
 
 83,500; head injured; lost three toes; Larkin v, Rail- 
 waj- Co., 19 N. Y. Supp., 479. 
 
 82,500; skull broken, part removed, leaving brain un- 
 protected; capacity to work impaired; Kiehland Iron Co. 
 v. Elins, 90 Va., 249, 17 S. E. Rep., 890. 
 
 $10,000; plaintiff a young and healthy man; skull so 
 crushed as to require the removal of a portion; left eye 
 destroyed; cheek fractured; great pain; totally disabled; 
 Mo. K. & T. Ry. Co. of Texas v. Parker, 20 Tex. Civ. 
 470; App., 49 S. W. Rep., 717. 
 
 § 70. Damages to Face and Sight. 
 
 85,000 ; loss of eye; Tinney v. Steamboat Co., 5 Lan- 
 sing, 507. 
 
 $5,000 ; loss of eye ; Chicago, Mil. & St. R. R. Co. v. 
 Harper, 26 111. App., 621. 
 
 $5,000; loss of eye; Johnson v. Railway Co., 96 Mo. 
 340, 9 Am. St. Rep., 351. 
 
 $6,000; loss of eyesight and other injuries ; Houston 
 & Tex. C. R. Co. V. Lowe, Mo., 11 S. W. Rep., 1065. 
 
 $10,175; injury to nose and loss of teeth; Gratiot v. 
 Railway Co., Mo., 16 S. W. Rep., 384. 
 
 $2,654.80; loss of eye; Southern K. Ry. Co. v. Croker, 
 41 Kan., 747, 13 Am. St. Rep., 320. 
 
 $8,000; face mashed and crushed; Otiesv. Electric Co., 
 -7N. Y. Supp., 25L 
 
 $9,000; total blindness; Stearns v. Riley, 135 111., 119, 
 25 N. E. Rep., 762. 
 
 $10,000; loss of both eyes by dynamite; Mather v. 
 Rillston, 156 U. S., 391. . . . .i. 
 
 $5,000; eyesight impaired ; severe injuries in other 
 partL of body ; earning $190.00 per month ; Missouri 
 & K. T. Ry. Co. V. Huff (Tex.), 32 S. W. Rep., 551. 
 
§ 70 DIMINISHED EARNING CAPACITY. 128 
 
 $3,000; loss of one eye, impairment of the other ; Jones 
 V. Railway Co., 122 Mo, 666, 46 Am. St. Rep., 514, 26 L. 
 R. A., 718. 
 
 $3,000 ; permanent impairment of eyesight ; New Jer- 
 sey R. R. Trans. Co. v. West, 32 N. J. L., 91. , 
 
 $9,000 ; loss of one eye and probable loss of the other ; 
 Jewell V. Railway Co., 40 Leg. Int., 36. 
 
 $5,000; loss of eye; Texas & P. Ry. Co. v. Bowlin, 
 Tex. Civ. App., 32 S. W. Rep., 918. 
 
 $1,800; eyesight and memorj^ impaired; Bridge v. 
 Oshkosh, 7i Wis, 363, 37 N. W. Hep., 409. 
 
 $15,000 ; one eye destroyed; hearing impaired; face dis- 
 figured; neck stiffened; asthma and bronchitis developed, 
 etc.; Wallace v. Vacuum Oil Co., 59 Hun., 616. 
 
 $1,000 ; jaw broken and several teeth knocked out ; 
 assault and battery; Myers v. Moore, 3 Ind., App., 226, 
 28 N. E., 724. 
 
 $6,000 ; face disfigured, arm lost ; Evans v. American 
 Iron & T. Co., (C. C. N. D„ O.) 42 Fed. Rep., 519. 
 
 $5,000; sight lost; use of one leg destroyed ; Aurora v. 
 Rockabrand, 149 111., 399, 36 N. E. Rep., 1004. 
 
 $6,500; one tooth broken and driven through lip; one 
 arm and leg badly mashed; bruise on the head; Smith v. 
 Railway Co., 119 Mo., 246, 23 S. W. Rep., 784. 
 
 $6,000; jaw broken; face disfigured for life; suffered 
 great pain; Miller v. Railway Co., 54 N. Y. Supp., 606. 
 
 $10,000; young and healthy man; skull so crushed as to 
 require removal of a portion, leaving skin to protect the 
 brain; left eye destroyed; cheek fractured; totally dis- 
 abled; Mo. K. & T. Ry. Co. of Texas v. Parker, 20 Tex. 
 Civ. App., 470, 49 S. W. Rep., 717. 
 
 $1,000; jaw injured; teeth broken; rendered perma- 
 nently lame; impairing hearing and causing much suffer- 
 ing; Morgan v. Fremont Co., 92 Iowa, 644, 61 N. W. 
 Rep., 231. 
 
 $3,000; locomotive engineer lost an eye through the 
 negligence of the city to keep its street in safe condition; 
 City of East St. Louis v. Daugherty, 74 111. App., 490. 
 
 $2,000; young man; practical loss of an eye; Lemser v. 
 Manufacturing Co., 70 Mo. App., 209. 
 
 $10,000; loss of right and thirty per cent, of normal 
 strength of left eye ; verdict was $15,000 ; common 
 laborer; reduced to $10,000; Ribich v. Smelting Co., 
 Mich., 48 L. R. A., 649. 
 
129 DIMINISHED EARNING CAPACITY. J? 71-72 
 
 § 71. Damag^es to Hearing. 
 
 $10,000^; total deafness one ear, and other injuries; St. 
 Louis & Santa Fe R. Co. v. McClain, 80 Tex., 85, 15 S. 
 W. Rep., 789. 
 
 $15,000; total deafness; Texas & Pac. R. Co. v. John- 
 son, 76 Tex., 421, 18 Am. St. Rep., 20. 
 
 $4,000; loss of hearing in one ear and health injured; 
 Kennedy v. Chicago, M. &St. P. R. Co., 57 Minn., 227, 58 
 N. W. Rep., 878. 
 
 82,000; injuries to hearing, sight and nervous system, 
 Clare v. Sacramento Electric P. & L. Co, 122, Cal., 504 
 55" Pac. Rep., 326. 
 
 $8,000; loss of hearing in left ear and loss of left arm; 
 Anglo-American Packing & P. Co. v. Baier, 31 111. App., 
 653. 
 
 $2,500; dragged fifty feet by a grip car; badly injured; 
 ear amputated; hearing partially destroyed; West Chi- 
 cago St. R. Co. V. Lups, 74 111. App., 420. 
 
 § 72. Damages to the Spine and Back. 
 
 $10,000; injury to spine; Weiler v. Street Ry. Co., 6 N. 
 Y. Supp., 320. 
 
 $8,525; spine injured; Stouter v. Street Ry. Co., 6 N. 
 Y. Supp., 163, 27 N. E., 805. 
 
 815,000; incurable spinal injury; Woodbury v. District 
 of Columbia, 5 Mackey, 127. 
 
 $8,958; spine injured; Illinois Central R. Co. v. Parks, 
 
 88 111 373. 
 
 85,000; spinal cord; Furnish v. Mo. Pac. R. Co., Mo, 
 
 15 S. W. Rep., 315. 
 
 $6,500; spine injured; Dallas & Greenville North. R. Co. 
 v. Able, 72 Tex., 871, 37 Am. & Eng. R. R. Cas., 453. 
 
 $6,050; concussion of spine ; Sioux City & Pac. R, Co. 
 T. Finlayson, 16 Neb,, 578, 49 Am. Rep., 724. 
 
 $2,000; spine injured; In Winbourne's Case, 301i ed., 167. 
 
 $3,500; spine injured; Klutts v. Railway Co., 75 Mo., 
 
 642. 
 
 $8,250; punctured lung and ribs broken ; Reed v. Rail- 
 way Co., 74 Iowa, 188, 37 N. W. Rep. 149. 
 
 $15,000; shoulder broken and leg lost ; Solen v. Rail- 
 way Co., 13 Nev., 106. 
 
i 72 DIMINISHED EARNING CAPACITY. I3» 
 
 $10,000; shoulder broken and leg lost; Daniels v. Rail- 
 way Co., 6 Utah, 357, 23 Pac. Rep., 762. 
 
 $2,000; spine injured; Waldron v. St. Paul, 22 N. W 
 Rep., 4, 33 Minn., 87. * 
 
 $3,750; three ribs broken; Mo. & Pac. R. Co. v. Aiken,. 
 71 Tex., 373. 
 
 $5,500; laceration of lung; ribs broken; German v. 
 Suburban Rapid Transit Co., 13 N. Y. Supp., 897. 
 
 $8,000; curvature of spine; Bennett v. Railway Co,, 133 
 N. Y., 563, 61 Hun., 623. 
 
 $4,000; incurable spinal disease; International, etc., R. 
 Co. V. Mullikan, 10 Tex. Civ. App., 663. 
 
 $4,000; incurable spinal disease; Missouri Pac. R. Co. 
 V. Shuford (Tex.), 10 S. W. Rep., 408. 
 
 $25,000; injury to spine; permanent in effect ; Ehrgott 
 V. Mayor, etc., 96 N. Y., 264, 267. 
 
 $10,000; brakeman earning $1.90 per day; severe cuts 
 and bruises on back and leg; the latter made smaller and 
 weaker; continual pain; Tierney v. Railway Co., 32 N. Y. 
 Supp., 627. 
 
 $10,500; flagman earning $50 per month; spine perma- 
 nently injured; great suffering; Alabama G. S. R. Co. v. 
 Bailey, 112 Ala., 167 20 So. Rep., 313. 
 
 $5,000; curvature of spine caused by breaking leg in 
 two places; continuous pain; Mexican Cent. Ry. Co. v. 
 Mitten, 13 Tex. Civ. App., 653 36 S. W. Rep., 282. 
 
 $5,000; injury to spine resulting in permanent paraly- 
 sis; Chicago & A. R. Co. v. Blane, 175 111., 183, 51 N. E. 
 Rep,, 895. 
 
 $700; fracture of floating rib; will cause more or less 
 trouble; Aslen v. Charlotte, 54 N. Y., Supp., 754. 
 
 $8,000; spine permanently injured resulting in partial 
 paralysis; continuous excruciating pain; Stomme v. Han- 
 ford Produce Co., 108 Iowa, 137. 78 N. W. Rep., 841. 
 
 $12,000; gunshot wound, causing great pain and suffer- 
 ing and affecting spinal column; Louisville & N. R. Co. v. 
 McEwan, 21 Ky., ^'487, 51 S. W. Rep., 619. 
 
 $7,500; plaintiff, manager of a firm doing business of 
 $750,000 per year, confined to bed for a month; spine 
 severely, if not permanently injured; medical expenses 
 large; Clark v. Chicago & A. R. Co. 127 (Mo.), 197, 29 S. 
 W. Rep., 1013. " 
 
'3< DIMINISHED EARNING CAPACITY. ^ 73 
 
 § 73. Total Disability. 
 
 $80 000; total incapacity to work; Phillips v. Railway 
 
 Co., 42 L. T. R. (N. S.),6. -^ 
 
 $30,000; total disability; Smith v. Whittier, 95 Cal., 
 
 $15,000; total disability; Morgan v. Railway Co., 95 
 
 $25,000; total disability; Chicago, etc., Rd. Co v Hol- 
 land, 18 111. App., 418. 
 
 S12,000: total disability; Trinity & Sabine R. Co v 
 Lane, 79 Tex., 643, 15 S. W. Rep., 477. 
 
 $18,500; total incapacity to work; Heddles v. Railway 
 Co., 77 Wis., 228, 20 Am. St. Rep., 106. 
 
 $15,000; total disability; Chicago, B. & Q. R. Co. v. Sul- 
 livan, 21 111. App. (Aff.), 580, 17 N. E. Rep., 460. 
 
 §10,000; physical wreck; Dalzell v. Railway Co., 119 N. 
 Y., 626, 6 N, Y. Supp., 167. 
 
 $15,000; totally disabled to sarn money; Tex. Pac. R. 
 Co. V. Johnson, 76 Tex., 421, 42 Am. & Eng. R. R. Cas., 6.. - 
 
 $10,000; physical wreck; Bowers v. Railway Co., 4 
 Utah, 215, 7 Pac. Rep., 251. 
 
 $10,175; total disability; Gratiot v. Railway Co., Mo., 
 16 S. W. Rep., 384. 
 
 $14,000; totally disabled to work; Joliet, A. & N. R. Co, 
 V. Velie, 36 lU. App., 450 (Aflf). 
 
 $1,500; totally disabled to earn money; Pence v. Rail- 
 way Co., 79 Iowa, 389, 44 N. W. Rep., 686, 42 Am. & Eng. 
 R. R. Cas., 126. 
 
 $1,500; total disability; The A. Heaton, 43 Fed. Rep., 
 592. 
 
 $25,000; permanent disability; Hall v. Railway Co., 
 84 Iowa, 311, 49 N. W. Rep., 239. 
 
 $10,000; permanent incapacity; Louisville «fc N. R. Co. 
 V. MitcheU, 83 Ky., 329, 8 S. W. Rep., 706. 
 
 $15,000; permanent incapacity; Schneider v. Street Ry, 
 Co., 15 N. Y. Supp., 556. 
 
 $10,000; physical wreck; Columbia & Puget Sound R. 
 Co. V. Hawthorn, 3 Wash. Terr., 353, 19 Pac. Rep., 25. 
 
 $7,000; permanent disability; Lambkin v. Railway Co., 
 33 Moak Eng., 727. 
 
 $8,000; permanent incapacity; Indianapolis, Blooming- 
 ton & W. R. Co. V. Barnhart, 115 Ind., 399, 16 N. E. Rep., 
 121. 
 
§ 73 DIMINISHED EARNING CAPACITY. 1 32 
 
 $19,000; physical wreck; life shortened; Groves v. 
 Rochester, 39 Hun., 5. 
 
 $20,000; total disability; life shortened; Walker v. Rail- 
 way Co., 63 Barb., 260. 
 
 $11,000; total incapacity to work; Belair v. Railway 
 Co., 43 Iowa, 662. 
 
 $10,000; totally disabled to earn money; Koetter v. 
 Railway Co., 13 N. Y. Supp., 458. 
 
 $8,000; physical wreck for life; Alexander v. Railway 
 Co., 12 N. Y. Supp. 685. 
 
 $10,000; intense suffering; physical wreck; 22 years 
 old; Gulf, etc., R. Co. v. Silliphant, 70 Tex., 623. 
 
 $6,500; total disability; Vredenburg v. Railway Co., 12 
 N. Y. Supp., 18. 
 
 $14,000; party 25 years old; crippled and probable suf- 
 fering for life; earned $1.80 per day; Toledo St. Ry. Co. 
 V. Sweeney, 4 OhioCirc. Dec, 11, 8 O. C. C. R., 298. 
 
 $19,000; engineer, forty-three years old, earning $110^00 
 per month; intense suffering; disabled for life; L. S. & M. 
 S. Ry. Co. V. Topliff, 6 Ohio Circ. Dec, 234. 
 
 $2,950; total incapacity to follow trade; young- man, in 
 prime of life, earning 81.75 per day; Toledo Con. St. Ry. 
 Co. V. Rohner, 6 Ohio Circ Dec, 706, 9 O. C. C. R., 702. 
 
 $10,000; crippled for life; unable to do manual labor; L. 
 S. & M. S. Ry. Co. V. Starkey, 6 OhioCirc. Dec, 5. 
 
 $3,000; suffering for eighteen months; injuries probably 
 permanent; Toledo St. Ry. v. Tucker, 7 Ohio Circ. Dec, 
 169, 13 O. C. C. R., 411. 
 
 $2,500; permanent injury; continuous suffering; 
 Albert! v. Railway Co., 118 N. Y., 77 Am. & Eng. R. 
 R. Cas., 201. 
 
 $30,000 ; permanent injury ; Wabash Western R. Co. v. 
 Friedman, 41 111. App., 270." 
 
 $10,000; permanent incapacity; woman; Galloway v. 
 Railway Co., 56 Minn., 346, 45 Am. St. Rep., 468. 
 
 $10,000; permanent disability; woman; Cannon v. Rail- 
 way Co., 14 N. Y. Misc. R., 400. 
 
 $10,000; total disability; woman; Mattis v. Traction 
 Ca, 6 Pa. Dist. Rep., 94. 
 
 $12,000; total incapacity; woman; Gulf, etc., Rd. Co. v. 
 Higby (Tex. Civ. App.), 26 S. W. Rep., 737. 
 
 $20,000; total disability; Sabine, etc, R. Co. v. Ewing, 
 7 Tex. Civ. App., 8. 
 
133 DIMINISHED EARNING CAPACITV. 
 
 73 
 
 $15,000; total incapacity; Sears v. Street Rv. Co 6 
 Wash., 227. •' 
 
 $14,000; strong and vigorous man; permanent injury 
 and continued suffering; Wallace v. Oil Co., 12 N' Y 
 Supp., 425, 27 N. E. Rep., 956. 
 
 $15,000; permanent physical deformity and incapacity 
 and great suffering; Schneider v. Railway Co., 15 N. Y. 
 Supp., 556. 
 
 $25,000; locomotive engineer; able bodied young man; 
 earning good wages; helpless cripple and wounded for 
 life; great suffering; Hall v. Railway Co., 46 Minn., 439 
 49 N. W. Rep., 239. 
 
 $10,000; physician, earning $2,000 per year; injury 
 caused great suffering and total disability; Carthage 
 Turnpike Co. v. Andrews, 102 Ind., 138, IN. E. Rep., 
 364, 53 Am. Rep., 653. 
 
 $3,500; plaintiff a farmer; totally disabled; Lasalle v. 
 Porterfleld, 38 111. App., 553. 
 
 $4,000; plaintiff twenty-nine years old; earning $2.10 
 per day; crippled for life; St. Louis & S. F, R. Co. v. 
 Woolum, Tex., 19 S. W. Rep., 782. 
 
 $5,000; middle aged man; good constitution; perma- 
 nently disabled, suffer for life; Bitner v. Railway Co., 4 
 Utah, 502, 11 Pac. Rep., 620. 
 
 $5,000; healthy man; permanently disabled; Hardy v. 
 The Raleigh, 41 Fed. Rep., 527. 
 
 $6,000; severe injuries; total disability; Watson v. 
 Street Ry. Co., 53 Minn., 551 55 N. W. Rep., 742. 
 
 $7,660; freight conductor; age thirty; earning $65.00 
 per month; permanently disabled; Harker v. Railway 
 Co., 88. Iowa, 409 55 N. W. Rep., 316. 
 
 816,000; engineer, less than 40 years old; rendered 
 helpless for life; Chicago v. Edson, 43 111. App., 417. 
 
 $12,500; plaintiff earning $15 or $16 per week; perma- 
 nently disabled mentally and physically; West Chic. St. 
 Ry. Co. V. Bode, 150 111., 396, 37 N. E. Hep., 879. 
 
 $8,000; healthy man; totally disabled and a physical 
 wreck; partially paralyzed; San Antonio & A. P. R. Co. 
 V. Long (Tex. cJiv. App ) 28 S. W. Rep., 214. 
 
 $7,500; plaintiff earning $300 per month; totally dis- 
 abled; Lowrey v. Railway Co., 68 H"ed. Rep., 827. 
 
 $5,000; healthy man, thirty-eight years old, earning $18 
 per week; suffered continued pain, with tremor and dizzi- 
 
g 73 . DIMINISHED EARNING CAPACITY. 134 
 
 ness and unable to work; Mayer v. Liebmann, 44 N. Y. 
 bupp., 1067. 
 
 $10,500; wholly incapacitated ; lost one leg; permanent 
 painful internal injuries; thirty-eight years old; in good 
 health; earning $75 a month; Smith v. Spokane, 16 Wash., 
 403, 47 Pac. Kep., 888. 
 
 $6,000; workman; totally disabled; Bryer v. Foerster, 
 41 N. Y. Supp., 617. 
 
 $3,000; able bodied man; fell into excavation; perma- 
 nently injured; Keyes v. Cedar Falls, 107 Iowa, 509, 78 
 N. W. Rep., 227. 
 
 $7,175; serious injuries; permanent in their effects; 
 Wichita v. Stallings, Kan., 54 Pac, 689. 
 
 $16,500; plaintiff forty-five years old; good health; 
 earning $80 to $90 per month; totally disabled for any 
 work; Chicago Ry. Go. v. Leach, 80 ILJ. App,, 854. 
 
 $25,000; plaintiff twenty-eight years old; earning 
 $3,600 per year; totally disabled; Diffanbach v. Railway 
 Co., 38 N. Y. Supp., 788. 
 
 $14,000; baggage man; earning $58 per month; in per- 
 fect health; totally disabled; suffers; Chicago & A. R. 
 Co. v. Swan, 70 111. App., 331. 
 
 $15,000; totally disabled from all active work; can only 
 walk on crutches; great pain; Chicago City Rv. Co. v. 
 Taylor, 68 111. App., 613. 
 
 $6,000; brakeman, thirty-two years old, earning $90 a 
 month;' totally incapacitated from manual labor; Lake 
 Shore & M. S. R„v. Co. v. Ryan, 70 J 11. App., 45. 
 
 $7,500; plaintiff, forty-two years old, assistant in the 
 operation of steam shovel, cutting shale and clay from a 
 bank; thrown down by a slide of clay; totally disabled; 
 Alton Paving Building & Fire Brick Co. v. Hudson, 74 
 111. App., 612. 
 
 $9,000; commission merchant (for thirty years) , mak- 
 ing $1,200 to $1,500 a year; occupied half of his time. 
 Winter season, conductor, earning $2.00 per day; leg 
 broken four places; confined to bed three months; totally 
 disabled; Furman v. Railway Co., 49 N. Y. Supp., 194. 
 
 $9,000; plaintiff, printer, forty-two years old, earning 
 $60 to $125 per month; totally disabled to pursue his 
 trade; Houston City St. Ry. Co. v. Medlenka, 17 Tex. 
 Cir, App. 621, 43 S. W. Kep., 1028. 
 
• 35 DIMINISHED EARNING CAPACITY. ? 74 
 
 § 74. Partial Disability. 
 
 $5,246; partial disability; pension examiner; earning 
 $2,500 per year; injuries caused great pain and impaired 
 his ability to labor; Southern Kan. R. Co. v. Walsh, 45 
 Kan , 653, 26 Pae., 45. 
 
 $2,286; stevedore, thirty years old, partially disabled; 
 Hamilton v. The William Branfoot, 48 Fed. Rep., 914. 
 
 $4,750; plaintiff thirty-two years old, confined to bed 
 eight weeks; one leg shortened and nervous system 
 affected; Dougherty v. Railway Co., 18 N. Y. Supp., 841. 
 
 $5,500; two ribs broken; earning $2.50 to $3 -per day; 
 pleura of lung injured; adhesion uncertain; work only 
 part of the time; German v. Transit Co., 13 N. Y. Supp., 
 897. 
 
 $6,500; age thirty-two; sound before injury; one leg 
 shorter; incapacitated to do heavy work; TheMaggiolo v. 
 The Mineola, 44 bed. Rep., 143. 
 
 $2,232.60; plaintiff confined to bed five weeks; earning 
 capacity reduced from $25 to $8 a week; Miller v. 
 Railway Co., 26 N. Y. Supp., 162. 
 
 $2,500; skull broken, a part of which was removed, 
 leaving brain unprotected; capacity to work very much 
 impaired; Richland's Iron Co. v. ii:ikins, 90 Va.,249, 17 
 S. E. Rep., 890. 
 
 $4,400; young man, thirty years old, earning $80.00 per 
 month; confined to bed ten weeks; entirely disabled for 
 ten months; fracture of femur, tibia, and fibula; The Ali- 
 jandro v. Wallace, 56 bed. Rep., 621. 
 
 $11,200; railroad conductor; thirty-six years; ex- 
 pended several hundred dollars for treatment; earning 
 capacitv diminished two-thirds ; Mexican Nat. R. Co v. 
 Mussette, 86 Tex., 708, 24 L. R. A., 642. ., , ^, 
 
 $3,600 ; man sixty-four years old ; right side badly 
 bruised ; fifth rib fractured ; suffered much pain ; dimin- 
 ished respiration ; disabled one half ; Eifinger v. Railway 
 Co., 34N. Y. Supp., 239. ■ 
 
 $5,000; ankle permanently injured ; walked on crutches 
 five or six months ; partially disabled ; Nichols v. Crystal 
 Plate Glass Co., 126 Mo., 55, 28 S. W. Rep., 991. 
 
 $3,500; perfect health before injury; lost leg and 
 thumb ; confined to house four months and lost six months 
 business; North Chicago St. Ry. Co. v. Broms, 62 111. 
 App , 127. 
 
i 75 DIMINISHED EARNING CAPACITY. I3S 
 
 $5,000 ; shipwright; forty-eight years old; in good health; 
 earning $94 aod $96 per month ; injuries destroyed hear- 
 ing in one ear ; incapacitated except for light work ; The 
 Pioneer, 78 Fed. Rep., 600. 
 
 $7,500; plaintiff's leg was broken, shortened and use- 
 fulness impaired ; less able to work ; Thomas v. Railway 
 Co., 45 N. Y. Supp., 920. 
 
 $6,500 ; employe thirty-five years old ; in full health ; 
 pernanently crippled ; earning capacity greatly decreased; 
 ,Ogle V. Jones, 16 Wash,, 319. 
 
 $2,000 ; permanently injured in head and back, right leg 
 and hip ; less able to work ; Kansas City, M. & B. R. Co, 
 V, Lachey, Ala,, 21 South Rep., 444. 
 
 $1,650 ; injuries seriously affected plaintiff's capacity ; 
 ankle permanently weak; Chespeake & O. Ry. Co, v, 
 Friel, 19 Ky., L, 152, 39 S, W, Rep,, 704. 
 
 $3,500 ; plaintiff shot in finger and thumb of left hand ; 
 right arm perforated from shoulder to hand ; several 
 entered leg and ankle ; strength permanently affected ; 
 West Memphis Packet Co, v. White, 99 Tenn,, 256 41 
 S. W, Rep., 583. 
 
 $8,000; truckman; twenty-five years old; lost use of 
 right arm ; earned as much after accidentat book-keeping; 
 O'Keefe v. Railway Co., 53 N. Y, Supp., 940, 
 
 $2,000; seaman; bones of leg broken; earning capacity 
 impaired ; Lafourche Packet Co, v. Henderson, 94 Fed, 
 Rep,, 871, 36 C. C. A,, 519. 
 
 $4,000 ; street sweeper; leg broken and shortened ; ca- 
 pacity to work impaired; Roche V, Redington 125 Cal, 
 174, 57 Pac. Rep., 890. 
 
 $10,000 ; injury caused amputation of right leg at the 
 ankle ; great pain and suffering ; earning capacity dimin- 
 ished one-half; Taylor v. Railway Co., Mo., 16 S, W Rep,, 
 206, ,; ' > f, 
 
 § 75, Injuries to Heart. 
 
 $4,680 ; heart affected ; life shortened ; Hughes v. 
 Orange County Assoc'n, 56 Hun,, 396, 
 
 $16,044 ; totally disabled ; displacement of heart ; 
 Georgia Pac, Ry. Co. v. Dooley, 86 Ga., 294, 12 S. E. 
 Rep., 923. 
 
 $2,500 ; woman sixty-eight years old ; frail constitution, 
 with heart trouble ; excessive; Bond Hill v. Atkinson, 9 
 Ohio Circ. Dec, 185, 16 O. C. C. R., 470. 
 
•37 DIMINISHED EARNING CAPACITY. g 76 
 
 $2,000; longshoreman; forty- two years; heart disease- 
 aggravated ; disabled for severe work ; The Persian 
 Monarch,-49 Fed. Rep., 669. 
 
 § 76. Injuries to Fingers and Tliumbs. 
 
 $2,300; loss of thumb and two fingers; Whalen v. Rail- 
 way Co., 75 Iowa 563, 38 Am. & Ency. Rd. Cas., 14. 
 
 $3,000; three fingers lost; Neilon v. Paper Co.. 75 
 Wis. 579. ^ 
 
 $4,000 ; flesh torn from thumb and finger ; Galveston 
 Oil Co. V. Malin, 60 Tex., 645. 
 
 $550 ; finger mashed and another hurt ; Georgia Pae. 
 R. Co. V. Ridgen, 85 Ga., 867. 
 
 $2,350; loss of finger; another broken and another 
 mashed ; Richmond & D. R Co. v. Williams, 88 Ga., 16, 
 14 S. E. Rep., 120. 
 
 $i,500 ; use of fingers destroyed ; Bolden v. Jensen, 70 
 Fed. Rep., 505. 
 
 $2,750 ; loss of fingers left hand ; Haynes v. Erk, 6Ind. 
 App., 332, 33 N. E., 637. 
 
 $3,750; severe injury to left hand; Eldridge v. Atlas 
 S. S. Co., 11 N. Y. Supp., 468. 
 
 $2,500; loss of little finger and next stiff ; Campbell v. 
 McCoy, 3 Tex. Civ. App., 298, 23 S. W. Rep., 34. 
 
 83,300 ; loss of two fingers and permanent to two others ; 
 Chapman v. Railway Co., 12 Utah, 30, 41 Pac. Rep., 551. 
 
 $1,000 ; loss of finger ; McMahon v. Walsh, 43 N. Y. 
 Sup. Ct., 36. 
 
 $6,000; loss of three fingers; injury to arm ; Murtaugh 
 V. Railway Co., 3 N. Y. Supp., 4«3. 
 
 85,000; loss of middle finger, first and third stiff; 
 Borgeson v. United States Projectile Co., 37 N. Y. Supp., 
 458. 
 
 $2,500; loss of three fingers ; L. S. k M. S. Ry. Co v. 
 Gagen, 4 Ohio Circ. Dec, 260, 12 O. C. C, 695. 
 
 $2,416; loss of three fingers ; Savannah, etc. R. Co. v. 
 Howard, 91 Ga., 99. 
 
 $7,500 ; loss of four fingers; L. S. &. M. S. Ry. Co. v. 
 Hundt, 41 111. App., 220. 
 
 $1,500; loss of finger ; Strong v. Railroad Co., 94 Iowa 
 380. 
 
 $4,000 ; loss of three fingers ; Barg v. Bonsfield, 65 
 Minn., 355. 
 
§ 77 DIMINISHED EARNING CAPACITY. 138 
 
 $7,500; loss of four fingers ; Missouri, etc. R. Co. v, 
 Hauer (Tex. Civ. App.), 33 S. W. Rep., 1010. 
 
 $8,500; fingers of one hand disabled; Ridenhour v. Rail- 
 way Co., 102 Mo., 270. 
 
 $2,500; loss of two fingers; Campbell v. McCoy, 3 Tex. 
 Civ. App., 298. 
 
 $1,800; two fingers lost; Gahagan v. Aermotor Co., 67 
 Minn., 252. 
 
 $2,250; fingers disabled; Honeycutt v. Railway Co., 40 
 Mo. App., 674. 
 
 $1,500; finger lost, hand crushed and impaired; Strong 
 v. Railway Co., Iowa, 6i5 N. W., 799. 
 
 $5,000; plaintiff forty-three years old; lost middle third 
 finger; first and third fingers scarred and tendons con- 
 tracted; Borgeson v. United States Projectile Co., 37 N. 
 Y. Supp., 458. 
 
 $7,500; experienced switchmen; forty-four years; lost 
 all fingers on right hand ; earning $80 to $90 per month; 
 Mo. K. & T. R. Co. V. Hauer, Tex. Civ. App., 33 S. W. 
 Rep., 1010. 
 
 $3,000; plaintiff twenty-five years old; little finger 
 mashed, another broken and hand weak and stiff; 
 Mahood v. Coal Co., 8 Utah, 85, 30 Pac. Rep., 149. 
 
 $2,416.50; car inspector earning $65 per month; lost all 
 the fingers of his right hand except little finger and 
 thumb; Savannah, 1^\ & W. R. Co. v. Howard, 91 Ga., 99 
 S. E. Rep., 306. 
 
 $5,000; switchman, earning $80 per month, lost fingers 
 of right hand; Missouri, K. & T. Ry. Co. of Texas v. 
 Hauer, 43 S. W. Rep., 1078. 
 
 § 77. Damages to Hand. 
 
 $4,000; loss of hand; Withsckofsky v. Wier, 32 Fed. 
 Rep., 301. 
 
 $7,500; loss of hand; C. H. & D. Ry. Co. v. Criss, 7 
 Ohio Circ. Dec, 632, 15 O. C. C. R., 398. 
 
 $4,500; dismembered right arm; Schultz v. Railway Co„ 
 48 Wis., 475, 57 Am. Rep., 881. 
 
 $7,500; loss of hand to boy thirteen; Spraffue v. Atlee, 
 81 Iowa, 1, 46 N. W. Rep., 786. 
 
 $2,250; stiff hand and loss of fingers; Honeycutt v. 
 Railway Co., 40 Mo. App., 674. 
 
•39 DIMINISHED EARNING CAPACITY. 
 
 'i 78 
 
 §4,000; permanent injury to hand; Mahood v. Coal Co., 
 8 Utah, 85, 30 Pac. Rep., 149. 
 
 So,500; loss of hand; Wooster v. Railway Co., 16 N. Y. 
 Supp., 764. 
 
 §10,000; loss of hand caused by gross negligence; Rob- 
 inson V. Railway Co., 48 Cal., 409. / 
 
 84,500; loss of hand; person twenty-three years old; 
 Central R. Co. v. DeBray, 71 Ga., 406. 
 
 SI, 000; loss of hand; McMillan v. Union Press Brick 
 Works, 6 Mo. App., 434. 
 
 83,850; loss of hand; McGehee v. Claridy, 96 Ga., 755. 
 
 $5,000; loss of use of hand; Newport News, etc., R. 
 Co. V. Campbell, (Ky.) 25 S. W. Rep., 267. 
 
 86,000; loss of hand; Mo. Pac. Ry. Co. v. Jones, 75 
 Tex., 151, 16 Am. St. Rep., 879. 
 
 812,500; plaintiff thirty-two years; earning $125 to 
 S150; hands scalded so that flesh came off and lower parts 
 of arms; face and head badly scalded; leg broken and 
 amputated; rig'ht arm paralyzed; Texas & P. Ry. Co. v. 
 Johnson (Tex. Civ. App.), 34 S. W. Rep., 186. 
 
 810,000; employee loses right hand; O'Donnell v. Sugar 
 Refining Co., 48 N. Y. Supp., 640. 
 
 $9,000; fireman thirty years old, in good health; badly 
 scalded; hand and arm badly burned; ribs broken; una- 
 ble to do any work as fireman; Galveston, H. & S. A. R. 
 Co. V. Croskell, Tex. Civ. App. 160, 25 S. W. Rep. 486. 
 
 S2,.500; passenger pushed off the train by employee; left 
 hand rendered practicallv useless; Louisville &N. R. Co. 
 V. Ray 101 Tenn. 1,46 S. W. Rep., 554. 
 
 § 78. Damages to Wrist. 
 
 81,000; breaking of wrist; Chicago v. Jones, 66 111., 
 349. 
 
 $2,000; breaking of wrist; Texas, etc., R. Co. v. Lowry, 
 61 Tex., 149. 
 
 81,000; fracture of wrist; Sherman v. Naeivy, 77 Tex., 
 291. 
 
 81,000; compound fracture of lower arm and disloca- 
 tion of wrist; woman sixty-three years old; Kennedy v. 
 Whittaker, 81 111. App., 605. 
 
§ 79 DIMINISHED EARNING CAPACITY. 140 
 
 § 79. Damages to Arm. 
 
 $7,000; loss of arm; Sobieska v. Railway Co., 41 Minn., 
 863. 
 
 $3,200 ; loss of arm ; Ottawa v. Sweedj-, 65 111., 434. 
 
 $3,500; stiflP arm; Detzer v. Brewing Co., 119 Mich., 282 
 44 L. R. A., 500, 77 N. W. Rep., 948. 
 
 $1,500; fracture of arm ; dislocation of wrist; Benedict 
 V. Fon du Lac, 44 Wis., 495. 
 
 $5,000 ; disabled arm ; Morrison v. Railway Co., 8 N. 
 Y. 8upp., 436. 
 
 $8,000 ; fracture of right arm ; totally disabled ; Cun- 
 ningham V. Furnace Co., 61 Wis., 603. 
 
 $5,000 ; loss of arm ; Tex. & Pac. R. Co. v. Davidson, 
 68 Tex., 370. 
 
 $5,500; crippled arm; Ohio & Miss. R. Co. v. Judy, 120 
 Ind., 397. 
 
 $5,000 ; loss of arm; Little Rock & Ft. S. R. Co. v. 
 Cagle, 53 Ark., 347, 44 Am. & Eng. R. R. Cas., 536. 
 
 $12,000 ; loss of arm ; Daugherty v. Street Ry. Co., 97 
 Mo., 647, 51 Am. Rep., 239, 34 Am. & Eng. R. R. Cas.,488. 
 
 $4,500 ; loss of arm ; Mentz v. Railway Co., 22 Robert- 
 son (N. Y.), 356. 
 
 $4,500 ; loss of use of arm ; Mo. & Pac. R. Co. v. Rail- 
 way Co., 41 Fed. Rep., 316. 
 
 $2,500; arm broken and disabled; Pittsburg, Cin. & St. 
 Louis R. Co. V. Spoonier, 85 Ind., 165. 
 
 $10,000 ; loss of arm ; Robinson v. Railway Co., 48 Cal., 
 409. 
 
 $1,240; loss of arm; Coast Line R. Co. v. Boston, 83 
 Ga., 387, 9 S. E. Rep., 1108. 
 
 $4,000; compound fracture to arm and elbow; Van Win- 
 ter V. Henry Co., 61 Iowa. 684, 2 Am. & Eng. R. R. Cas., 
 512. 
 
 $3,000; broken arm; Russ v. Steamboat Eagle, 14 Iowa, 
 372. 
 
 , $2,000 ; loss of useof an arm; Little Rock & Ft. S. R. 
 Co. V. Harkey, Ark., 15 S. W. Rep., 456. 
 
 $1,200 ; loss of the use of the arm ; Toledo v. Higgins, 
 7 Ohio Circ. Dec, 29, 12 O. C. C. R., 646. 
 
 $8,000 ; loss of arm and deafness one ear ; Anglo- 
 American Packing, etc. Co. v. Baier, 31 111. App., 653, 
 
'4' DIMINISHED EARNING CAPACITY. j 79 
 
 o^^^.'?^' loss of arm; Pennsylvania Rd. Co. v. Backes, 
 35 ill. App., 375. ' 
 
 $.500; temporary loss of use of arm ; Clanin v. Fa^an, 
 124 Ind., 304. '= ' 
 
 $10,000 ; loss of arm ; Ketchum v. Railway Co., 38 La. 
 Ann., 777. 
 
 $6,500; loss of arm ; woman ; great suffering-; Vreden- 
 burgv. Railway Co., 58 Hun., 607. 
 
 $18,000; loss of arm: Musser v. Street Ry. Co.. 15 Pa 
 Co. Ct. Rep., 430. ^ , o srd. 
 
 $10,000; loss of arm; Balzer v. Railway Co., 89 Wis 
 257. ' .7 . , 
 
 $4,000; loss of arm ; McCoy v. Street Ry. Co., 88 Wis., 
 56. 
 
 $3,000; fracture of arm ; Western, etc. R. Co. v Drvs- 
 dale, 51 Ga., 644. 
 
 $2,000; fracture of arm; Northeastern Rd. Co. v. 
 Chandler, 84 Ga. 87. 
 
 $3,000 ; loss of arm ; Pennsylvania Rd. Co. v. Marion, 
 123 Ind., 415, 18 Am. St. Rep., 330. 
 
 $9,119 ; brakeman thirty-five years old ; earning $55.00 
 per mo. ; lost forearm ; Mo. K. & T. Ry. Co. v. Kirkland, 
 Tex. App., 34 S. W. Rep., 186. 
 
 $3,500; brakeman t went}' -one years old; lost an arm ; Nor- 
 folk & W. R. Co. V. Ampey, 93 Va., 108,25 S.E. Rep., 226. 
 
 $7,500; laborer earning 81.25 to $1.50 per day; arm 
 caught in revolving shaft; amputated near shoulder; 
 Wm. D. Gibson Co. v. Glizozinski, 76 111. App., 400. 
 
 $1,300; minister, permanently injured; one bone in arm 
 dislocated ; another broken ; City of Decatur v. Stoops, 
 Ind. App., 52 N. E. Rep., 623. 
 
 $8,0()b, ; truckman, twenty-five years old; lost use of 
 right arm ; earned as much after accident at bookkeeping; 
 O'Keefe v. Railway Co., 53 N. Y., Supp., 940. 
 
 $14,000; plaintiii" thirty -five years old; earning $115, 
 per month; in fair way for promotion; lostan arm; unable 
 to do anything without both arms; Galveston, H. & H. R. 
 Co. V. Bohan (Tex. Civ. App.), 47 S. W. Rep., 1050. 
 
 $2,000; for breaking the arm of a woman; New Orleans 
 & C. R. Co. V. Schneider, 60 Fed. Rep., 210, 8 C. C. A., 
 571. 
 
 $6,500; fireman twenty-nine years old; earning $70 per 
 month; right hand and arm destroyed; injury causing 
 
2 80 DIMINISHED EARNI>fG CAPACITY. 142 
 
 pleurisy; Thompson v. Railway Co. 71 (Minn.), 89, 73 N. 
 W. Rep., 707. 
 
 $2,500; right arm permanently crippled; West Chi- 
 cago Street Ry. Co. v. James, 69 111. App., 609. 
 
 § 80. Damages to Thigh and Hip. 
 
 $12,000; permanently lame; suffered great pain; expenses 
 $1,350; Rockwell v. Railway Co., 64 Barb., 438 53 N. Y. 
 625. 
 
 12,000; left thigh bone fractured; knee stiffened; tis- 
 ues injured ; Texas & Mexican Ry. Co. v. Douglass, 11 S. 
 W. Rep., 333. 
 
 $9,000; thigh bone broken; great suffering; disabled 
 for life; Deppe v. Railway Co., 38 Iowa, 592. 
 
 $15,000; broken thigh; fractured pelvis; permanent 
 injury; Louisville, N. O. & Tex. R. Co. v. Thompson, 64 
 Miss., 584, 57 Am. Rep., 20, 30 Am. & Eng.R. R.Cas., 54. 
 
 $2,000; broken hip; Hayward v. Miller, 94 III., 349, 34 
 Am, Rep., 229. 
 
 $1,400; hip bone broken; leg shortened; Gale v. Rail- 
 way Co. , 76 N. Y. , 594. 
 
 $2,750; dislocation of hip joint; Houfe v. Fulton, 34 
 Wis., 603, 17 Am. Rep., 463. 
 
 $750; severe injury to thigh; Beck v. Dowell, 40 Mo. 
 App., 71, 
 
 $5,000; fracture to thigh bone resulting in permanent 
 injury; O'Connell v. Railway Co., 106 Mo., 452, 17 S. W. 
 Rep., 494. 
 
 $1,500; seaman; hip and arm fractured; permanently 
 disabled; The A. Heaton, 43 Fed. Rep., 592. 
 
 $7,500; thigh broken and leg shortened; Danville & W. 
 R. Co. V. Brown, Va., 18 S. E. Rep., 278. 
 
 $1,000; employe earning $1.50 per day; broke collar and 
 hip bones, and received other injuries, some of which are 
 permanent; Kirk v. Scally, 79 111. App., 67. 
 
 $10,000; woman thirty-nine years old; sound health; 
 fractured her hip; kept on a stretcher three months; 
 went on crutches six months; never been able to walk 
 without help; permanent injury to ball and socket of 
 thigh bone; North Chicago St. Ry. Co. v. Fitzgibbons, 
 79 111. App., 632. ^ 
 
143 DIMINISHED EARNING CAPACITY. j 81 
 
 § 81. Damages for Loss of Leg. 
 
 $9,000; loss of leg; Louisville & N. R. R. Co. v. Moore 
 83 Ky., 675. ' 
 
 $12,500; loss of leg; Kentucky Cent. R. Co. v, Rvle 13 
 Ky. L. Rep., 862, 18 S. W. Rep., 938. 
 
 $10,000; loss of leg and two toes; first trial, $10,000; 
 second trial $12,000; third trial, $10,000; Porter v. Rail- 
 way Co., 71 Mo., 66, 36 Am. Rep., 412. 
 
 $11,030; loss of leg; permanent disability; Berg v. 
 Railway Co, 50 Wis., 419 ; 7 N. W., 347. 
 
 $10,000; both legs broken; The Washington v. The 
 Gregory, 9 Wall., 513. 
 
 $5,000; leg broken; strength permanently reduced; 
 Maysville, etc., R. R. Co. v. Herrick, 13 Bush (Ky.), 
 122. 
 
 $18,000; leg amputated; one arm disabled; Murray v. 
 Railway Co., 7 N. Y. Supp., 900. 
 
 $7,500; use of one leg destroyed; healthy woman 
 seventy years old; Hinton v. Railway Co., 65 Wis., 323. 
 
 $7,500, both legs broken, ankle dislocated; obliged to 
 go on crutches remainder of life; Evans v. Delk, 9 S. W. 
 Rep., 550. 
 
 $15,000;. right leg lost; right arm permanently injured; 
 pleurisy contracted; forty-two years old; earning $3,000 
 per year; Specht v. Railway Co., 19 Phil. (Pa.), 365. 
 
 $10,000; woman sixty years old; one leg fractured; 
 ankle sprained; arm dislocated; Brown v. Sullivan, 71 
 Tex., 470; 10 S. W. Rep., 288. 
 
 $5,000; man fifty-four years old; lamed in one leg for 
 life; three ribs broken; Quinn v. Railway Co., 34 Hun., 
 331. 
 
 $8,000; Plaintiflf fifty-two years old; confined to bed 
 nine weeks; one leg shortened two and one-half inches; 
 Funston v. Railway Co., 61 Iowa, 452. 
 
 $9,000; plaintiff, manager stock farm; leg broken two 
 places; one below knee; one leg shortened; expenses 
 large; suffered greatly one year; Griffiths v. Railway Co., 
 98 Mo., 168; 11 S. W. Rep., 559. 
 
 $7,500; foot cut cross-wise from instep to heel; leg 
 scarred and shriveled; Tex. & Pac. R. R. Co. v. Over- 
 hier, 76 Tex., 437; 13 S. W. Rep., 468. 
 
§ 81 DIMINISHED EARNING CAPACITY. 144 
 
 $10,000; plaintiff twenty-seven years old; earning $60 
 per month; leg amputated three times; confined to bed 
 fifty days; had lockjaw twelve days; Atchison, T. & S. F. 
 R. R. Co. V. Moore, 31 Kan., 197. 
 
 $5,000; leg broken and injuries permanently affecting 
 her health; Brady v. Railway Co. 6 N. Y. Supp., 533. 
 
 $3,500; leg broken three places; right foot injured; left 
 foot mangled and partly cut off ; back and shoulders 
 bruised and hurt; C. H. & D. Ry. Co. v. Boyer, 10 Ohio 
 Circ. Dec, 199; 18 O. C. C, 327. 
 
 $5,000; fracture of leg; Chicago City R. Co. v. Mum- 
 ford, 97111., 560. 
 
 $4,000; fracture of patella, inducing permanent injury; 
 Chicago V. Crocker, 2 111. App., 279. 
 
 $2,000; fracture of leg; Chicago v. Chase, 33 111. App., 
 551. 
 
 $2,000; fracture of leg; Topeka v. Bradshaw, (Kan. 
 App.)48Pac. Rep., 7.51. 
 
 $3,000; chronic inflammation of knee; Rogers v. Rail- 
 way Co., 65 Minn., 308; 67 N. W. Rep., 1003. 
 
 $1,250; knee permanently stiffened; Lincoln v. Staley, 
 32 Neb., 63. 
 
 $6,000; fracture of leg; permanently disabled; Selleck 
 V. J. Langdon Co., 59 Hun., 627. 
 
 $5,000; fracture of leg;-Beltz v. Yon^ers, 74 Hun., 73. 
 
 $7,000; fracture; neck of femur; Fitch v. Railway Co., 
 58 Super. Ct., 575; 10 N. Y. Supp., 225. 
 
 $15,000; fracture, inducing shortening and permanent 
 stiffness; Mitchell v. Railway Co., 70 Hun., 387. 
 
 $7,500 ; fracture ; leg shortened and stiffened ; Vail v. 
 Railway Co., 6 Mis. Rep. (N. Y.), 20, 26N. Y. Supp., 59. 
 
 $7,500; fracture; leg shortened and stiffened ; Thomas 
 V. Railway Co., 18 N. Y. App. Div., 185. 
 
 $9,000 ; fracture, with permanent serious results; 
 Texas, etc., R. Co. v. Echols (Tex. Civ. App.), 25 S. W. 
 Rep. 1087. 
 
 $7,500 ; thigh crushed ; leg shortened ; Danville, etc. 
 R. Co., V. Brown, 90 Va., 340 ; 18 S. E. Rep., 278. 
 
 $1,000 ; legs crushed and bruised ; temporary disabil- 
 ity ; Richmond & D. R. Co. v. Garthwright, 92 Va., 627. 
 
 $15,000 ; loss of both legs ; Hobson v. Railway Co., 
 (Arizona) 11 Pac. Rep., 545. 
 
 $13,000 ; loss of both legs ; Colorado Midland R. Co. 
 V. O'Brien, 16 Colo., 219 ; 27 Pac. Rep., 701. 
 
145 DIMINISHED EARNING CAPACITY. 
 
 i 81 
 
 $16,000; permanent loss of leg, by paralysis; Chicaeo 
 etc., Ed. Co. V. Fisher, 38 111. App., 33. 
 
 $15,000 ; loss of both legs ; Oglesby v. Railway Co 
 (Mo.) 37 S. W. Rep., 829. ^ ^ ^ -^ ^"•' 
 
 $25,000 ; loss of both legs ; plaintiff a child ; Ehrman 
 V. Railway Co., 131 N. Y., 14 JST. Y. Supp., 336. 
 
 $2,000 ; loss of legs; plaintiff a child; Akersloat v. 
 Railway Co., 8 N. Y. Supp. 926. 
 
 $9,000; loss of legs; Richmond v. Railway Co., 76 Hun. 
 (N. Y.), 233. ^ 
 
 $10,000; loss of legs; Garoni v. Campagnie Nationale, 
 etc., 14 N. Y. Supp., 797. 
 
 $9,650; loss of one leg; plaintiff nineteen years old; 
 Nadau v. Lumber Co., 76 Wis. 120; 20 Am. St. Rep., 29. 
 
 $18,000; loss of leg below knee; plaintiff forty-one 
 years old; earning $45 per month; Galveston, etc. Ry. 
 Co. V. Hynes, 6 Am. Neg. Rep., 208; 21 Tex. Civ. App., 
 34, SOS. W. Rep., 624. 
 
 $6,500; confined to bed six or seven months; unable 
 to walk for a year; one leg shorter two inches; Crippled 
 ankle joint, causing rheumatism; Sellick v. Langdon, 13 
 N. Y. Supp.. 858. 
 
 $7,500; injuries painful; severe and lasting; one leg 
 shortened; Vail v. Railway Co., 26 N. Y. Supp., 59. 
 
 $3,000; engineer; permanent chronic inflammation of 
 knee joint; Rogers v. Railway Co., 65 Minn., 308, 67 N. 
 W. Rep., 1003. 
 
 $1,1000; loss of right leg below the knee; no proof of 
 expenses or pecuniary loss; Berry v. Railway Co., 72 
 Fed. Rep., 488. 
 
 $2,000; plaintiff sixty-seven years old; confined to bed 
 two months; used crutches five or six weeks; perma- 
 nently lame; City of Topeka v. Bradshaw, 5 Kan. App., 
 879, 48 Pae. Rep., 751. 
 
 $10,000; plaintiff thirty-two years old; earning $65 per 
 month; leg crushed, great and long suffering; confined in 
 hospital six months, and three amputations; Hollenbeck 
 V. Railway Co. (Mo.) 38 S. W. Rep., 723. 
 
 $4,500; injury to the knee, probably permanent; Chicago 
 V. Fitzgerald; 75 111. App., 174. 
 
 $8,000; plaintiff twenty -five years old; lost use of right 
 arm; O'Keefe v. Railway Co., 53 N. Y. Supp., 940. 
 
 10 
 
i 81 DIMINISHED EARNING CAPACITY. 146 
 
 $20,000; plaintiff lost both legs ; cripple for life; never 
 able to work or to enjoy life; suffered great pain and will 
 continue to suffer; Fouda v. Railway Co., 77 Minn., 336, 
 79 N. W. Rep., 1043. 
 
 $1,000; leg shortened and made crooked; Ocean S. S. 
 Co. V. Matthews, 86 Ga., 418, 12 S. E. Rep., 632. 
 
 $3,000; young man; lost a leg; earning capacity $1,000 
 per year; suffered greatly; Anderson v. The Ashbrooke, 
 44 Fed. Rep., 124. 
 
 $4,500; negro, twenty -four years old; $2,500 for loss of 
 leg; balance $2,000 for physical suffering; Lampkins v. 
 Railway Co., 42 La. Ann. 997; 8 So. Rep., 530. 
 
 $10,000; plaintiff received an injury from a broken 
 wheel, causing permanent loss of leg and of use of one 
 shoulder; disabled for life; Daniels v. Railway Co., 6 
 Utah, 357, 23 Pac. Rep., 762. 
 
 $12,500; brakeman; twenty- two years old; good health 
 earning $500 to $600 per year; leg amputated below knee 
 other loot badly mangled, hip dislocated; chest injured, 
 physical wreck; Kentucky C. Rd. Co. v. Ryle, 13 Ky. 
 Law Rep., 862, 18 S. W. Rep., 938. 
 
 $13,000; plaintiff healthy man; age thirty-nine; lost 
 both legs in such a manner that artificial limbs could not 
 be used; Colorado Midland Rd. Co. v. O'Brien; 16 Colo. 
 219; 27 Pac. Rep., 701; 48 Am. & Eng. Rd. Cas., 235. 
 
 $1,800; both legs broken; had to use cane two years 
 after accident; Propson v. Leathen, 80 Wis. 608; 50 N. 
 W. Rep., 586. 
 
 $6,000; plaintiff fifty-years old; wages $2.75 per day; 
 hospital three months; had not worked since trial; knee 
 stiffened; leg affected with varicose veins; Campbell v. 
 Brewing Co., 47 N. Y. Supp., 992. 
 
 $3,500; cabinet maker; wages $20.00 per week; age 
 forty-nine; leg broken, shortened three-fourths inch; 
 Texas & N. O. R. Co. v. Syfan, 91 Tex. 562, 43 S. W. 
 Rep,, 551. ' 
 
 $1,500; widow forty-one years old; supporting herself 
 and her small children; permanently injured in right leg, 
 causing enlargement and affection of blood vessels; Joliet 
 V. Johnson, 71 111. App., 423. 
 
 $5,000; knee cap and one of the bones of the heel frac- 
 tured; resulting in tumor and disease of kidneys; Koehne 
 V. Railway Co., 52 N. Y. Supp., 1088. 
 
147 DIMINISHED EARNING CAPACITY. j 81 
 
 $13,740; plaintiff twenty years old; capable of earning 
 $2.00 per day; injured, causing amputation of leg; Texas 
 & N. U. Ry. Co. V. Carr, (Tex. Civ. App.) 42 S. W. Rep 
 126, 91 Tex. 332, 43 S. W. Rep., 18. ^ 
 
 $5,000; young; so injured as to be a cripple for life; one 
 leg partially paralyzed and considerably shortened; Gal- 
 veston, H. & S. A. Ry. Co. v. Parrish, 43 S. W. Rep., 536. 
 
 $5,000; section man on railroad; right leg shortened 
 and stiffened and totally disabled for manual labor; 
 Chicago & A. Ry. Co. v. Goltz, 71 111. App., 414. 
 
 $5,750; city fireman and driver of hose cart; while go- 
 ing to a fire he was run over at a street crossing; lost 
 one leg and crippled for life; Murray v. Railway Co., 101 
 Mo. 236; 13 S. W. Rep.. 817, 20 Am. St. Rep., 601. 
 
 $8,000; plaintiff was thrown off the car; one foot was 
 -run over and the other leg injured, requiring amputation 
 near thigh; Schumacker v. Railway Co., 39 Fed., 174. 
 
 $14,167; plaintiff's leg was injured, shortened, stiffened 
 and diseased; disabled for life; Galveston, H. & S. A. Rd. 
 Co. v. Profert, 72 Tex., 344, 17 Am. & Eng. R. R. Cas., 
 540; 10 S. W. Rep., 207. 
 
 $13,000; plaintiff was a strong, healthy man, earning 
 $100 per month; thirty-nine years old; had lioth legs 
 crushed, requiring amputation five inches below the 
 knee; knee joints were stiffened; Colorado & Midland Rd. 
 Co. V. O'Brien, 16 Colo., 219, 27 Pac, 701. 
 
 $3,000; injury seriously affected the use of a leg, caus- 
 ing great pain, and when plaintiff worked he could not 
 sleep; Gulf, Colorado & S. F. Rd. Co. v. Norfleet, 78 Tex., 
 321, 45 Am. & Eng. R. R. Cas., 207; 14 S. W. Rep., 703. 
 
 $14,000; plaintiff in prime of life, earning $75 per 
 month; leg amputated four times; ribs torn from the 
 breast, nervous system wrecked and totally disabled; 
 Joliet, A. & N. R. Co. v. Velie, 36 111. App., 450, 26 N. E. 
 Rep., 1086. 
 
 § 82. Damages to Ankle and Foot and Toes. 
 
 $7,000; foot crushed; a permanent cripple; L. S. & M. 
 S. Ry. Co. V. Winslow, 4 Ohio Circ. Dec, 242, 10 Ohio 
 C. C. R. 193. 
 
 $1,200; loss of foot and arm; Texas & Pac. Rd. Co. v. 
 Brick, 83 Tex., 526, 18 S. W. Rep., 947. 
 
i 82 DIMINISHED EARNING CAPACITY. 148 
 
 $1,650; sprained ankle; Chesapeake, etc. Rd. Co. v. Friel 
 19 Ky. L. Rep., 152, 39 .S. W. Rep., 704. 
 
 $2,000; sprained ankle; Dimmitt v. Railway Co., 40 
 Mo. App., 654. 
 
 $1,500; car running over foot; McCooey v. Railway Co., 
 79 Hun., 225. 
 
 $11,000; loss of foot; amputation; Jordon v. Railway 
 Co., 16 Daly (N. Y.), 130. 
 
 $8,500; loss of several toes; Cummerford v. Railway 
 Co., 8 N. Y. Misc. Rep., 599. 
 
 $10,500; loss of foot; plaintiff a child; Chipman v. Union 
 Pac. Rd. Co., 12 Utah, 68; 41 Pae. Rep., 562. 
 
 $10,750; ankle dislocated and amputated; great suffer- 
 ing; walk on crutches for life; Kennon v. Gilmer, 9 Mont., 
 108, 22 Pac. Hep., 448. 
 
 $15,000; bedridden six months; intense and continuous 
 suffering; expenses $2,300; always lame from a deformed 
 foot; Engler v. Telegraph Co., 69 Fed. Rep., 185. 
 
 $9,000; farmer earning $500 per year; forty years old; 
 had his foot cut off; Georgia Railroad & Banking Co. v. 
 Keating, 99 Ga., 308, 25 S. E. Rep., 669. 
 
 $9,000; stationary engineer; thirty-two years old; earn- 
 ing $53.50 per month; loss of a foot; second amputation; 
 long and probably continual suffering; Manley v. Railway 
 Co., 42 N. Y. Supp., 1076. 
 
 $4,000; bone near ankle broken in three pieces and foot 
 and ankle permanently misshapened ; Stone v. Pendleton 
 21 R. 1., 332, 43 Atl. Rep., 643. 
 
 $15,000; plaintiff thirty-seven years old; excellent 
 health; earning $1,800 to $2, 400 per year; lost a foot; total 
 disability; Galveston, H. & S. A. Ry. Co. v. Scott, 21 Tex. 
 Civ. App., 24, 50 S. W. Rep., 477. 
 
 $5,000; brakesman; in employ of company two and one 
 half years; earning $85.00 per month; in good health; 
 injury caused amputation of foot and diseased condition 
 of bone of leg; Kansas City, F. S. & G. R. Co. v. Kier, 41 
 Kan., 661, 13 Am. St. Rep., 311; 21 Pac. Rep., 770. 
 
 $8,000; brakeman lost foot and four toes; Wood v. 
 Louisville & N. Rd. Co., 88 Fed. Rep., 44. 
 
 $10,000; plaintiff a young man; injuries required ampu- 
 tation of right foot; Bowers v. Union Pae. Rd. Co., 4 
 Utah, 215, 7 Pac. Rep., 251. 
 
•49 DIMINISHED EARNING CAPACITY. j g2 
 
 $10,000; plaintiff mechanic forty-five years old; able 
 bodied man, earning good wages; lost his foot; crushed 
 between bumpers of car; Olsen v. Railway Co., 45 Minn 
 45; 47 Am. & Eng. R. R. Cas. 573; 48 N. W. Rep., 445. 
 
 $8,000; defendant company trying to make a landing, 
 backed so forcibly as to break dock and plank, catching 
 and crushing plaintiff's foot; Inland Seaboard Coastine 
 Co. V. Tolsen, 1.S9 U. S. 551. 
 
 $11,000; plaintiff was attempting to board a street car, 
 when it started too quickly. He was thrown under the 
 car,it running over both feet, requiring amputation; great 
 suffering and expense; Jordon v. Railway Co., 9 N. Y. 
 Supp., 506. 
 
 $5,500; switchman; engine run over one foot crushing 
 it and two toes of the other foot; bones of instep injured; 
 crippled for life; Smith v. Railway Co., 18 Fed. 
 Rep., 304. 
 
 $5,070; baggage porter on railroad; foot crushed; 
 cripple for life; Mo. Pac. Rd. Co. v. Crenshaw, 71 Tex. 
 349, 9S. W. Rep., 262. 
 
 $10,000; injury caused amputation at ankle of right leg; 
 great pain, earning capacity diminished one-half; Taylor 
 V. Mo. Pac. Rd. Co., 16 S. W. Rep., 206. 
 
 $8,000; plaintiff's injury caused the amputation of one- 
 half of one foot; disabled from attending to business for 
 thirteen months and expenses were $1,000; Ferguson v. 
 Railway Co., 63 Wis., 165, 23 N. W. Rep., 123, 19 Am. & 
 Eng. R. R. Cas., 285. 
 
 § 83. Damages for Injury to Health. 
 
 $4,000; permanent injury to health; Fitton v. Street 
 Railway Co., 5 N. Y. Supp., 641. 
 
 $4,680; party earned $3.50 per day; great suffering; per- 
 manent injury to health; Hughes v. Orange County, Milk 
 Association, 10 N. Y. Supp., 252. 
 
 $12,500; plaintiff earning $15.00 to $16.00 per week; 
 injuries will always make him a sick man ; West Chicago 
 St. Ry. Co. V. Bode, 150 111., 396, 37 N. E. Rep., 879. 
 
5 84 DIMINISHED EARNING CAPACITY. 150 
 
 § 84. Damages Awarded For Injecting Passengers. 
 
 $200; damages for wrongfully ejecting a passenger from 
 a train, using rough language and compelling him to walk 
 seven miles; Fordyce v. Manuel, 82 Tex. 527, 18 S. W. 
 Rep., 657. 
 
 $500; passenger after paying his fare was put off the 
 train and walked nine miles; Boster v. Railway Co. 
 36 W. Va., 318, 15 S. E. Rep., 158. 
 
 $400; passenger subject to St Vitus Dance; seized by 
 the throat and wrongfully ejected from the street car; 
 Regner v. Street Railway Co., 26 N. Y. Supp., 625. 
 
 $210; passenger alighted two and a half miles from 
 station, the station not being called, and he had to walk that 
 distance and several miles home on a dark, rainy night; 
 Gulf C. & S. F. Rd. Co. V. Sain (Tex. Civ. App.), 24 S. W. 
 Rep. 958. 
 
 $500; passenger wrongfully ejected from train on a 
 false charge of failure to pay fare; Lake Erie & W. Rd. 
 Co. V. Arnold, 7 Ind. App., 297, 34 N. E. Rep., 742. 
 
 $550; passenger ejected under protest at a regular sta- 
 tion; Trice V. Chesapeake & O. Rd. Co., 40 W. Va. 271, 21 
 S. K. Rep., 1022. 
 
 $400; a crippled passenger put off five miles from his 
 destination, who walked the distance on account of illness 
 of daughter; Sheets v. Railway Co., 39 W. Va., 475, 20 S. 
 E. Rep., 566. 
 
 $450; passenger having a proper ticket wrongfully 
 ejected from a train, where the conductor failed to exam- 
 ine ticket and publicly charged such passenger with 
 fraudulently attempting to pass a worthless ticket; Lake 
 Shore & M. S. Ry. Co. v. Teed, 6 Ohio Circ. Dec. 339, 14 
 Ohio C. C. R. 355. 
 
 $790; wrongful acts of a conductor in seizing a passen- 
 ger by her arms and shoulders, forcibly pulling her 
 from the seat and rudelv leading her through the car to 
 the door; Gulf C. & S. F. Rd. Co. v. Wright, 10 Tex. Civ. 
 App., 179, 30 S. W. Rep. 294. 
 
 $700; plaintiff was publicly ejected from a car at a 
 place other than a station, because he refused to pay an 
 unreasonable rate of fare, and had to seek other means of 
 travel to his place of destination; the testimony also 
 tended to show that his health was impaired; Smith v. 
 Railway Co., 23 Ohio St. 10. 
 
•51 DIMINISHKD EARNING CAPACITY. 
 
 85 
 
 § 85. Damages— Miscellaneous Iiy'uries. 
 
 $750; kick from vicious horse ; Schlitz Co. v. Blacklav 
 10 Ohio Circ. Dec, 17; 18 Ohio C. C. R., 359. 
 
 $6,000; party seventy-two years old; crippled for life- 
 powers of articulation, speech and writing- impaired-' 
 Illinois Central Rd. Co. v. Wheeler, 149 111., 525, 36 N e' 
 Rep., 1023. 
 
 $5,000; permanently lame for life; expended $900 for 
 expenses; used cane and crutches two years; Grossman 
 V. Cosgrove, 75 111. App., 385. 
 
 $5,000; impairment of muscular sense and feeling, and 
 partial loss of hearing; The Pioneer, 78 Fed. Rep., 600. 
 
 $5,000; both sides compressed; great pain; pneumonia; 
 Hanlon v. Railway Co. 104 Mo., 381, 16 S. W. Rep., 233. 
 
 $2,000; passenger beaten, kicked and cut by a conduc- 
 tor; arm broken; kicked off car; Savannah St. & R. R. Co. 
 V. Bryan, 86 Ga., 312, 12 S. E. Rep., 307. 
 
 $100; for a black eve; Schuler v. Railway Co., 18 N. Y. 
 Supp.,. 48. 
 
 $2,020; conductor struck a passenger in the presence 
 of others, threating to eject her if she did not surrender 
 her watch and chain as security for her fare, after she 
 exhibited her ticket and oflfered to identify herself; Mo. 
 Pac. Rd. Co. V. Martino 2 Tex., Civ. App., 634, 18 S. W. 
 Rep., 1066. 
 
 $150; damages frpm the bite of a vicious dog; Sylvester 
 V. Maag, 155 Pa. St., 225, 26 Atl. Rep. 392. 
 
 $1,000; damages reasonable for breach of contract to 
 furnish a section in a sleeping car to a woman of ill 
 health, with a baby six months old; she was compelled to 
 take a seat in a common car with negroes and became 
 ill; Pullman Palace Car Co. v. Booth (Tex. Civ. App.), 
 28 S. W. Rep., 719. 
 
 $3,250; malicious assault, resulting in confinement to 
 bed for several months; rendered delirious; suffered 
 intense pain; terminating in insanity; Spear v. Sweeney, 
 88 Wis., 545, 60 N. W. Rep., 1060. 
 
 $10,000; plaintiff twenty -five years old; good health; 
 confined to bed several months; had to use crutches three 
 years after accident; urinal and sexual organs impaired; 
 symptons of paralysis; Mo., K. & T. Ry. Co. of Texas v. 
 Cook, 12 Tex. Civ. App., 203, 33 S. W. Rep., 669. 
 
i 85 DIMINISHED EARNING CAPACITY. 152 
 
 $800; oyster and fruit dealer; injured in a collision; 
 eight months in bed; store closed; one and a half years 
 after accident walked on crutches; Loyacans v. Jurgens, 
 50 La., 441, 23 So. Rep., 717. 
 
 $13,500; injury caused incontinence of urine; perma- 
 nent and progressive injury of spine; insomnia; impair- 
 ment of memory; loss of sexual powers and hernia; 
 Fullerton v. Fordyce (Mo.), 44 S. W. Rep., 1053. 
 
153 
 
 MENTAL SUFFERING. 
 
 § 86 
 
 CHAPTER VII. 
 
 MENTAL SUFFERING. 
 
 Sec 
 
 86. Mental SuflFering in General. 
 
 87. No fixed Rule for Measurement. 
 
 88. Amount Need Not be Proved. 
 
 Sbc. 
 
 89. Future Mental Suffering. 
 
 90. Classes of Mental Suffering. 
 
 § 86. Mental Suffering in General. Mental suffer- 
 ing is recognized as an element of damages for which a 
 reco-very may be had and means the pain or anguish of 
 mind caused by an injury. Mental suffering takes a 
 wider range than physical pain and suffering, but dam- 
 ages cannot be recovered for every kind of mental suffer- 
 ing. To be the basis of damages, mental suffering must 
 be predicated upon some physical injury or upon some 
 actual and wilful wrong done. It must be one of the natural 
 consequences of and sustain some real and substantial re- 
 lation to such injury or wrong. It is distinct in many cases 
 from physical pain, although it is often so closely asso- 
 ciated with it, that it cannot be separated from physical 
 suffering. Mental suffering is often more intense and hard- 
 er to endure than physical pain ; more secret and deleteri- 
 ous in its effect, and less easy to control and to cure. Phy- 
 sical pain is temporary and when the wound is healed, it 
 ceases to manifest itself and is forgotten. But the mem- 
 ory of outraged feelings, as an inexcusable and wrongful 
 insult, is carried in the mind, so long as life lasts. The 
 bitterness of the wrong and the keenness of the insult 
 may wear away, but the remembrance of it will never die. 
 The scar will never wear smooth again. While this is 
 true, mental suffering must have some real foundation to 
 make it the ground for damages. It must have a cause 
 in or connection with some tangible, positive and visible 
 fact, or cause of action, and not born in the mind of a 
 visionary, sentimental or nervous person, or originated 
 in the office of an unconscionable lawyer. Mental suffer- 
 ing must be supported by evidence, sufficient in fact and 
 in law, before damages can be measured and awarded as 
 a compensation for the wrong and injury done, and not 
 
1 86 MENTAL SUFFKRING. 1 54 
 
 by evidence so imaginary or metaphysical that it becomes 
 purely a question of theory or speculation as to what 
 damages the jury may find. 
 
 Damages for mental suffering have been the subject of 
 extensive discussion by the courts within the last twenty 
 years. The new element of motive power so universally 
 adopted and the new inventions and new industries created 
 and established within that period, have raised new ques- 
 tions in relation to negligence and damages. Many rules 
 of the common law have been changed, modified or ex- 
 tended to meet the new facts, conditions and exigencies 
 of modern civilization. No one question has been so 
 often before the courts, and so thoroughly discussed and 
 considered, as damages for mental sufi'ering. The au- 
 thorities aredivided as to the limitations which should be 
 put upon it in the assessment of damages and in some 
 instances as to the nature of actions in which damages for 
 mental suffering should be allowed. Authorities agree 
 that damages for mental suffering should be predicated 
 upon some actual injury or wilful wrong negligently or 
 intentionally done or caused to be done, by some act of 
 omission or commission, but they disagree as to what 
 constitutes a right of action for damages for mental 
 suffering. 
 
 Damages for mental pain and anguish is an element for 
 which a recovery may be had, as recognized by all the 
 authority, whenever the injury is of such a character 
 that the injured person has a right of action against the 
 wrongdoer and mental suffering is one of the conse- 
 quences of such injury.' 
 
 ^Waterman v. Railway Co. , 82 Wis , Rep., 246 ; Ho.uston & Tex. C. R. Co. 
 
 611 ; Heddles v. Ry Co., 77 Wis , 228, v. Rund, 1 Tex. Civ. App., 100 ; Hale 
 
 20 Am. St., 106 ; Stutz v. Ry. Co., 73 v. Bonner, 82 Tex. 33, 17 S W. Rep. 
 
 Wis., 147, 9 Am St., 769 ; Stewart v. 605; Western Union Tel Co. v. 
 
 Ripon, 38 Wis. 584 ; Oliver v. Lavalle, Cooper, 71 Tex. 507 ; Missouri & Ry. 
 
 36 Wis., 598; Croaker v. Railway Co., to. v. McAlree (Tex. Civ App ) 41 S. 
 
 36 Wis., 657, 17 Am. Rep., 504; Ripon W, Rep., 843; Texas & Mex. R. Co. 
 
 V. Bittel, 36 Wis., 614 ; Hammond v. v. Douglass, 73 Tex 325 11 S W 
 
 Murka, 40 Wis., 35; Richmond & D. Rep., 333; Brown v. Sullivan 71 Tex. 
 
 R. Co. v. Norment, 84 Va. 167, 4 S. E. 470, 10 S. W. Rep., 288 ; Pennsylvania, 
 
 Rep., 211 ; Bovee v. Danville, 53 Vt., etc., Canal Co. v. Graham, 63 Pa. St., 
 
 183; Nones v. Northhouse, 46 Vt., 290. 3 Am. Rep. 549; Pennsylvania R. 
 
 587; Newell v. Whitcher, 53 Vt,589, Co. v. Books, 57 Pa. St., 339, 98 Am. 
 
 ^b Am Rep 703 ; Youngstown Dec, 229 ; Scott Township v. Mont- 
 
 Bldge Co. v Barnes (Tenn.), 2 Am. gomery, 95 Pa St., 444; Pittsburgh 
 
 OT?.- u%Ia ^11 ' ^tV'*''" v. Mclntyre, etc. R. R. Co. v. Donahue, 70 Pa. St., 
 
 2 Utah, 384 ; Mo., Kan. & T. Ry. Co. U9; McLaughlin v. Corry, 77 Pa! 
 V. Warren, Tex. Civ. App., 2 Am. Neg. St., 109 ; Smith v. Railway Co., 23 O. 
 
155 
 
 MENTAL SUFFERING. 
 
 In Segur v. Barkhamsted, 22 Conn., 290, an action was 
 brought to recover damages for a personal injury. The 
 trial court instructed the jury that if they found for the 
 plaintiff, they had the right to consider all the circum- 
 stances of danger and peril attending the accident. This 
 was excepted to and the Supreme Court in regard to it 
 said : "That the plaintiff is entitled to be compensated 
 for his personal injury, there is of course no question, 
 and that principle is sufficient to vindicate the charge on 
 this point. Such actual injury is not confined to wounds 
 and bruises upon his body, but extends to his mental suf- 
 fering. His mind is no less a part of his person than his 
 body, and the sufferings of the former are oftentimes 
 more acute, and also more lasting, than those of the latter 
 
 * * * the dismay and consequent shocks to the feel- 
 ings which Is produced by the danger attending a personal 
 injury, not only aggravate it, but are frequently so ap- 
 palling as to suspend the reason and disable a person 
 
 St., 10; Filer v. Railway Co., 49 N. Y. 
 42; Hamilton v. Railway Co., 63 N. 
 Y., 25; Murray v. Railway Co., 47 
 Barb. (N.Y.), 196; O'Neil v. Raiway 
 Co., 15 N. Y. Supp., 84 ; Wallace v. 
 Railroad Co., 104 N. C.,442, 10 S. K. 
 Rep., 852 ; Thompson v. Telegraph 
 Co., 107 N. C, 449 ; Holyoke v. Rail- 
 way Co., 48 N- H. 541 ; Quigley v. 
 Railway Co , 11 Nev., 350 ; Johnson v. 
 Wells-Fargo Co., 6 Nev., 224, 3 Am. 
 Rep., 245; Solen v. Virginia & 
 TruckeeCo, 13 Nev, 106; Halliford 
 V. Kansas City, 103 Mo., 172; Riden- 
 hour V. Cable Co., 102 Mo., 270; 
 Whalen v. Railroad Co., 60 Mo., 323; 
 West V. Forrest, 22 Mo., 344 ; Bigelow 
 V. Street Ry. Co., 48 Mo. App., 367; 
 Porter v. Railway Co., 71 Mo., 66; 
 Schmidt v. Railway Co., 119 Mo., 25'^, 
 23 L. R. A., 250; Winkler v. Railway 
 Co., 21 Mo. App., 99; Sidekum v. 
 Railroad Co., 93 Mo., 400, 4 S. W. Rep., 
 701; Memphis,etc., R. Co. v. Whitfield, 
 44 Miss., 466, 7 Am. Rep., 699 ; South- 
 ern, etc., R. Co. V. Kendrick, 40 Miss., 
 874, 90 Am. Dec. 332 ; Larson v. Chase, 
 47 Minn., 307, 28 Am. St. Rep , 370 ; 
 Sherwood v. Railroad Co., 82 Mich., 
 374 ; Welch v. Ware, 32 Mich., 77 ; 
 Geveke v. Railway Co.. 57 Mich., 589 ; 
 Power V. Harlow, 57 Mich., 116 ; John- 
 son V. Holyoke. 105 Mass., 50; Smith 
 
 V. Holcomb, 99 Mass., 552 ; Ballou v. 
 Farnum, 8 Allen (Mass.), 480; Mc- 
 Mahon v. Railroad Co., 39 Md., 438; 
 Pittsburg etc. R. Co. v. Andrews, 39 
 Md., 329, 17 Am. Rep., 568; B. & O. 
 Rd. Co. V. Kean, 69 Md., 394, 5 Atl.. 
 325; Mason v. EUsworih, 32 Me.. 271 , 
 Black man v Gardiner, etc.. Bridge, 
 75 Me., 214; Donnell v. Sandtord, 11 
 La. Ann., 645 ; Sherley v. Billings, 8 
 Bush (Ky.), 47 ; Salina v. Trooper, 27 
 Kan., 544; Atchison T. & S. F. R. Co. 
 V. Lamoreaux (Kan.), 43 Pac. Rep., 152; 
 Morris v. Railroad Co., 45 Iowa, 29 ; 
 Paine v. Railroad Co., 45 Iowa, 569; 
 McKinley v. Railroad Co., 44 Iowa, 
 314, 24 Am. Rep., 748 ; Moore v. Rail- 
 way Co., 47 Iowa, 688; Muldowiiey v. 
 Illinois Centr. R. Co., 36 Iowa, 462 ; 
 Lake Shore & M. S. Ry. Co. v. Hundt, 
 41 111. App., 220 ; Indianapolis etc. R. 
 Co. v. Stables, 62 111., 313; Peoria 
 Bridge Ass. Co. v. Loomis, 20 111., 
 236 ; Chicago, etc., R. Co. v. Flagg, 
 43111., 364; Chicago v. McLean, 133 
 111., 148 ; Toledo etc. Rd. Co. v. Bad- 
 dely, 54 111., 19, 5 Am. Rep., 71 ; Pitts- 
 burg etc. Rd. Co v. Story, 63 111. App., 
 239; Sheridan v. Hibbard, 119 111., 
 307 ; Hannibal & St. Jos. R. Co. v. 
 Martin, 111 111., 219; Pittsburg etc. 
 Rd. Co. v. Spoonier, 85 Ind.. 165; 
 Terre Haute etc. , Rd. Co. v. Brunker, 
 
i 86 
 
 MENTAL SUFFERING. 
 
 156 
 
 from warding it off and to say that it does not enter into 
 the character and extent of the actual injury and form a 
 part of it, would be an affront to common sense." 
 
 In the case of Gibney v. Lewis, 68 Conn., 392, it appeared 
 that an action was brought to recover damages for a false 
 return of the service of a subpoena upon the plaintiff and 
 her subsequent arrest upon a capias ad respondendum. 
 The court laid down the doctrine that if the plaintiff suf- 
 fered any mental anguish as one of the natural and proxi- 
 mate consequences of the wrong complained of, sh6 was 
 entitled to recover damages therefor. 
 
 In Chicago v. McLean, 133 111., 148, 8 L. R. A., 765, it 
 was held that suffering in mind as well as in body is 
 ground for damages for apersonalinjury, citing Hannibal 
 & St. J. R. Co. V. Martin, 111 111., 219, where it is said : 
 "Where suffering in body and mind is the result of 
 injuries caused by negligence, it is proper to take it into 
 consideration in estimating the amount of damages." 
 
 In Head v. Railway Co., 79 Ga., 358, 11 Am. St., Rep., 
 434, the courtheld: "Wounding a man's feelings is as much 
 
 Trinkle). 103 44 Fed. Rep., 248 ; Carpenter v. Rail- 
 way Co., 39 Fed. Rep., 315; Kennon 
 V. Gilmer, 131 U. S., 22 ; Mclntyre y. 
 Giblin, 131 U. S. (App.), 134. 
 
 ' In the case of Stutz v. Chicago & 
 N. W. Ry. Co., 73 Wis., 147, 9 Am. St. 
 Rep., 769, the following instruction 
 of the trial judge was approved by 
 the Supreme Court : ' ' The plaintifiF, 
 if she is entitled to recover, is entitled 
 to full compensatory damages for all 
 the direct physical injury as well as 
 the -mental suffering you may find 
 from the evidence resulted from the 
 injury by the negligence complained 
 of." 
 
 In Renihan v. Wright, 125 Ind. 536, 
 21 Am. St. Rep., 249, an action was 
 brought to recover damages for fail- 
 ure to safely keep the deceased body 
 of the child of the plaintiff pursuant 
 to a contract, and for allowing the 
 same to be taken away, and for refus-. 
 ing to disclose where the remains 
 were removed. The court instructed 
 the jury that in assessing damages 
 they might take into consideration 
 the mental anguish of the plaintiffs, 
 if they suffered any mental anguish, 
 on account of the matters set out in 
 
 128 Ind., 542; Wolf v, 
 Ind., 355 ; Stewart v. Maddox, 63 Ind. 
 51: Moyer v. Gordon, 113 Ind., 282; 
 Louisville & N. A. R. Co. v. Falvey, 
 104 Ind., 109, 3 N. E. Rep., 889, 4 N. 
 E. Rep., 908 ; Renihan v. Wright, 125 
 Ind., 536, 21 Am. St. Rep., 249; Head 
 V. Railway Co., 79 Ga. 358, 11 Am. St. 
 Rep., 434 ; Bray v. Latham, 81 Ga. 
 640; Western & Atl. R. Co. v. Drys- 
 dale, 51 Ga. 644 ; Augusta & S. R. Co. 
 v. Randall, 85 Ga., 297 ; Ford v. War- 
 ner, Del., 37 Atl., 39 ; Wallace v. Rail- 
 road Co., 8 Houst. (Del.), 529, 18 Atl., 
 818; Masters v. Warren, 27 Conn., 293; 
 Segur V. Barkhamsted, 22 Conn., 290 ; 
 Ashcraft v. Chapman, 38 Conn., 230; 
 Gibney v. Lewis, 68 Conn., 392 ; Wade 
 V. Backward, 48 Ark., 896; St. Louis, 
 etc., Rd. Co. V. Blackburn (Ark.), 15 S. 
 W. Rep., 469 ; Loxiisville etc. Rd. Co. v. 
 Whitman, 79 Ala., 328; Southern & 
 Alabama R. Co. v. McLenden, 63 Ala., 
 266; Montgomery & E. R. Co v. 
 Mallette, 02 Ala.. 209 ; Mobile & O. R. 
 Co. V. George, 94 Ala., 199; Saldana 
 V. Railroad Co., 43 "Eed. Rep., 862; 
 Davidson v. Railroad Co., 44 Fed. 
 Rep., 476 ; Harris v. Railway Co., 13 
 Fed. Rep., 591 ; Fell v. Railway Co., 
 
•57 MENTAL SUFFERING. 5 86 
 
 actual damage as breaking his limbs. The diiference is 
 that one is internal and the other external ; one mental 
 and the other physical ; in either case, the damage is not 
 measurable with exactness. * * * The jury would 
 have a much wider discretion in dealing with feelings than 
 with an external injur}'." 
 
 § 87. IVo fixed Rule for Measurement. It has been 
 laid down by the courts that mental anguish is incapable 
 of measurement by any arbitrtrary 6r fixed rule, but 
 must depend to a great extent upon the judgment and 
 good sense of the jury, based upon the facts and circum- 
 stances of each particular case.^ 
 
 § 88. Amount Need not be Proved. When it is 
 shown from the evidence that the plaintiff has suffered 
 mental anguish on account of injury which he has received, 
 in order to recover damages therefor, it is uot necessary 
 to prove the amount of such damages.' 
 
 § 89. Future Mental SuflFering. When the evidence 
 establishes or tends to establish the fact that mental 
 suffering is reasonably certain to be experienced in the 
 
 the complaint. The Supreme Court In Atchison, T. & S. F. R. Co. v, 
 held that where a person contracts to Lamoreaux, (Kas. App.), 2 Am. Neg. 
 do a particular thing upon a suflBcient Rep., 542, it appeared that the plain- 
 consideration, the failure to do which tiff was an old man and a cripple, and 
 may result in anguish and distress of was evicted from a train seven miles 
 mind, on the part of the other con- from his destination on a dark stormy 
 tracting party, he is presumed to have night. He caught cold and suffered 
 contracted with reference to the pay- for a considerable time from a lame 
 mentof damages of that character, in leg which was made worse by the ex- 
 the event such damages accrue by posure. He was still suffering from 
 reason of the breach of the contract it at the time of the trial. The court 
 on his part. held that he was entitled to recover 
 
 In Fell V. Railway Co., 44 Fed. Rep. damages for physical pain and for 
 
 248, the plaintiff was forced by threats such mental suffering as grew out of 
 
 to jump from the train on a dark or resulted- directly from the physical 
 
 night while it was running rapidly. pain endured. 
 
 Evidence is admissible that he was at igt. Joseph & Grand I. R. Co. v. 
 
 the time afflicted with a rupture, Hedge, 44 Neb., 448, 62 N. W. Rep., 
 
 although unknown to the conductor, ggy-, Pennsylvania R. Co. v. Allen, 53 
 
 for the purpose of ascertaining the pa. St., 270; Western Union Tel. Co. 
 
 extent of his mental suffering as an y. Simpson, 73 Tex., 422; Rice v. 
 
 element of damage. Rice, 104 Mich., 371, 62 N. W. Rep., 
 
 In Malloy v. Bennett, 15 Fed. Rep., 333. 
 
 371, it was held that mental suffering a international & G. N. Ry. Co. v. 
 
 18 one of the elements of personal Riioades,21 Tex., Civ. App.,459, 51 S. 
 
 injury forwhich compensation should ^ ^ 5J7 . Rj^e y. Rice, 104 Mich., 
 
 be awarded, and this even when the gyj gg j^ -^ Rep., 833. 
 injury is not malicious, but merely 
 negligent. 
 
89 
 
 MENTAL SUFFERING. 
 
 158 
 
 future, the jury may take into consideration such future 
 suffering and assess such damages therefor as the evi- 
 dence shows to be reasonable.' 
 
 § 90. Classes of Mental SufiFerlng. Mental suffering 
 must be one of the natural results or consequencesof the 
 negligent act or actual wrong wilfully done to the person 
 by reason of which an injury has been caused. The in- 
 jury or wiong must be of such a character and done 
 under such circumstances as to furnish a right of action 
 against the wrongdoer for damages. In that event men- 
 tal suffering becomes one of the elemen ts of damages to 
 be considered by the jury. 
 
 Damages for mental suffering have been allowed in the 
 following class of cases, to- wit: 
 
 First. Mental suffering caused by any physical injury, 
 and the fear or apprehension created thereby as to its 
 effect. 
 
 Second. Mental suffering caused by any criticism or 
 humiliation, resulting from the mutilation of the body, 
 disfigurement of the face, impediment of speech, or 
 
 ' Campbell v. Palace Car Co., 42 Fed. 
 Rep. 484; Southern & Ala. R. Co. v. 
 McLendon, 63 Ala., 266; Wallace v. 
 Railway Co., 8 Houst. (Del.), 529; 
 Kerr v. Forgue, 54 111. 482, 5 Am. Rep., 
 146 ; Kendall v. Albia, 73 Iowa, 241 ; 
 Standard Oil Co. v. Tierney, 92 Ky.; 
 367, 36 Am. St. Rep., 595 ; Sherwood 
 V. Railway Co., 82 Mich., 374; Mem- 
 phis & C. R. R. Co. V. Whitfield, 44 
 Miss., 466, 7 Am. Rep., 699; Curtis v. 
 Railway Co., 18 N. Y., 534; Aaron v. 
 Railway Co., 2 Daly (N. Y.), 127; 
 Strohm v. Railway Co., 96 N. Y., 305; 
 Smith V. Mauch Chunk, 3 Pa. Sup. 
 Ct. R. (Pa.), 653; Soicer v. Railway 
 Co., 29 Wis., 580; Stewart v. Ripon, 
 38 Wis., 584; Sheel v Appleton, 49 
 Wis., 125 ; Hedd es v. Railway Co., 77 
 Wis., 228, 20 Am. St. Rep., 106; 
 Nichols V, Brabagon, 94 Wis. 549. 
 
 In the case of Kendall v. Albia, 73 
 Iowa, 241, the Supreme Court held : 
 " It is also objected that the court in- 
 structed the jury that the plaintiff 
 could recover for future mental 
 anguish, and that no case can be 
 found that so holds; nor has counsel 
 cited us to a case which holds that 
 
 such a recovery cannot be had. If 
 the future mental anguish is caused 
 by the injury, we are unable to see 
 why the plaintiff should not be com- 
 pensated therefor, for the same reason 
 that damages may be recovered for 
 such anguish up to the time of trial. 
 If damages in the future may be re- 
 covered, we see no reason why men- 
 tal anguish caused by the future con- 
 dition of the injury should not be 
 considered." 
 
 In Scott V. T. P. Montgomery, 95 
 Pa. St., 444, the court held that the 
 measure of damages included not only 
 damages lor direct expenses incurred, 
 but also for the bodily pain and men- 
 tal suffering endured and which was 
 likely to be experienced. 
 
 In Heddles v. Railway Co., 77 Wis., 
 228, 20 Am. St. Rep., 108, the court 
 approved the following instruction: 
 "Adequate compensation for all the 
 physical and mental pain and suffer- 
 ing which the plaintiff suffered at the 
 time of the accident, which he has 
 suffered since that time and which 
 he is reasonably certain to suffer in 
 the future by reason of the injury." 
 
'59 MENTAL, SUFFERING. 
 
 J 90 
 
 impairment of the mental faculties, on account of the per- 
 manent effect of such physical injury. 
 
 Third. Mental suffering caused by any insult, indig- 
 nity, assault or discrimination inflicted or received in a 
 public place, without cause, when no physical injury is 
 done to the person. 
 
 Fourth. Mental suffering caused by the utterance or 
 publication of slanderous words or libellous language 
 against the character or reputation, business or profes- 
 sion of any person when such words or language are 
 untrue. 
 
 Fifth. Mental suffering caused by malicious prosecu- 
 tion, false imprisonment or illegal use of process; or by 
 any unlawful and forcible interference with the person, 
 as abduction, seduction or other unlawful injury thereto. 
 
 Sixth. Mental suffering caused by the negligent per- 
 formance or non-performance of contract or failure to 
 transmit and deliver promptly telegrams given to a tele- 
 graph company for transmission. 
 
 Seventh. Mental suffering caused by breach of contract 
 of marriage or by alienation of affections of husband or 
 wife. \ 
 
 Eighth. Mental suffering for loss oi social position 
 and standing in the community, caused by selling intoxi- 
 cating liquors to husband or father. 
 
 Nintn. Exemplary damages may be added to compen- 
 satory damages for mental suffering under certain condi- 
 tions, especially where the injury was intentional, wilful, 
 wanton or malicious, and the amount may be increased or 
 gauged according to the degree of wickedness or malice 
 which entered into the acts of the wrongdoer. 
 
i 91 
 
 MENTAL SUFFERING. 
 
 160 
 
 CHAPTER VIII. 
 
 MENTAL SUFFERING CONTINUED. 
 
 Sbc. 
 
 92. Nervous Shock, Peril and Fright. 
 
 Sec. 
 
 91. Mental Suffering based on Physi- 
 cal Pain or Injury. 
 
 § 91. Mental Suffering Based on Physical Pain or 
 Injury. Damages have been allowed and may be re- 
 covered for the mental suffering caused and endured in 
 all cases where the person has received a physical injury, 
 and where the mental suffering is one of the natural eon- 
 sequences or proximate results of such physical injury.' 
 
 • Phillips V. Railroad Co.,4 Q. B.Div , 
 406; Wade v. Leroy, 20 How. Rep. 
 (U. S.), 34; Mclntire v. Giblin, 131 
 U. S., App. 134; Morse v. Dun- 
 can, 14 Fed. Rep., 396; Malloy v. 
 Bennett, 15 Fed. Rep., 371 ; Van De 
 Venter v. Railway Co., 26 Fed. Rep., 
 32; Anthony v. Railway Co., 27 Fed. 
 Rep., 724 ; Connor v. Pioneer Fire 
 Proof Construction Co., 29 Fed. Rep., 
 629; Carpenter v. Railway Co., 39 
 Fed. Rep., 315 ; Saldana v. Railway 
 Co., 43 Fed. Rep., 862; Griffith v. 
 Railroad Co., 44 Fed. Rep., 576; 
 Davidson v. Railroad Co., 44 Fed., 
 Rep., 476 ; Crawford v. Telegraph 
 Co. (Ark.), 47 Fed. Rep., 544; Tyler 
 V. Telegraph Co., 54 Fed. Rep,, 634; 
 Western Union Telegraph Co. v. 
 Wood, 57 Fed. Rep., 471, 21 L. R. A., 
 710 ; Montgomery, etc., R. Co. v. 
 Mallette, 92 Ala., 209; South, etc.Ala. 
 Rd. Co. V. McLendon, 63 Ala., 266 ; 
 Malone \. Hawley, 46 Cal., 409 ; 
 Townsend v.Briggs, 99 Cal. ,481 ; Fair- 
 child V. California, Stage Co 
 13 Cal., 599 ; Wall v. Cameron, 6 Colo., 
 275; Masters v. Warren, 27 Conn., 
 293 ; Segur v. Barkhamsted, 22 Conn., 
 290; Lawrence v. Railwav Co., 29 
 Conn., 390 ; Wallace v. Railroad Co., 
 8 Houst. (Del.), 529 ; Augusta & Sum- 
 merill R. R. Co. v. Randall, 85 Ga. 
 297 ; Smith v. Overley, 30 Ga., 241 • 
 City, etc., R. Co. v. Findley, 76 Ga.' 
 311 ; Jack v. Dankwardt, 85 111., 333- 
 Indianapolis, etc., R. R. Co. v. Stables,' 
 62 III., 313; Peoria Bridge Ass. v 
 Loorais, 20 HI., 235; Hannibal, etc.. 
 
 R. Co. v. Martin, 111 111., 219 ; Chicago 
 V. Jones, 66 111., 361 ; Illinois Centr. 
 Rd. Co. V. Robinson, 58 111., App., 
 181 ; Western Brewing Co. v. Mered- 
 dith, 166 111., 306, 46 N. E. Rep., 720; 
 Chicago V. Langlass, 66 111., 361, 
 Toledo & Wabash R. Co. v. Baddeley; 
 54 111., la, 5 Am. Rep., 171 ; Chicago v. 
 McLean, 133 111.. 148; Sheridan v. 
 Hibbard, 119 111., 307; Chicago, B. & 
 Q. R. Co. V. Hines ; 45 111. App., 299 ; 
 Indianapolis v. Gaston, 58 Ind., 224; 
 Pittsburg, etc., R. R. Co. v. Spoonier, 
 85 Ind., 165 ; Wright v. Compton, 
 53 Ind., 337 ; Wabash, etc., R. R. Co. 
 V. Morgan, 132 Ind., 430 ; Pittsburg, 
 C. C. & St. L. R. Co. V. Montgomery, 
 Ind., 49 N. E Rep., 582; McKinley 
 V. Railway Co., 44 Iowa, 314, 24 Am. 
 Rep., 748; Stafford v. Oskalnosa, 64 
 Iowa, 251 ; Kendall v. Albia, 73 Iowa, 
 241 ; Muldowney v. Railway Co., 36 
 Iowa, 462 ; Fergason v. Davis 
 County, 57 Iowa, 601 ; Gronan v. 
 Kukkuck, 59 Iowa, 18; Fleming v. 
 Shenadoah, 71 Iowa, 456; Mo., etc. 
 R. R. Co. v. Weaver, 16 Kan., 456; 
 Salina v. Trosper, 27 Kan., 544; 
 Atchinson, T. & S. F. R. R. Co. v. 
 Lamoreaux (Kan.), 49 Pac. Rep. 152; 
 Kentucky Centr. R. Co. v. Ackley, 87 
 Ky., 278, 12 Am. St. Rep., 480 ; Alex- 
 ander V. Humber, 86 Ky., 506; 
 McMahon v. Railway Co., 39 Md., 
 438; Ballon v. Farnum, 11 Allen 
 (Mass.), 73; Smith v. Holcomb, 99 
 Mass., 52; Kinney v. Folkerts, 84 
 Mich., 616 ; Geveke v. Railway Co., 
 57 Mich., 589; Sherwood v. Railway 
 
161 
 
 MENTAL SUFFERING. 
 
 ''I'. 91 
 
 In Wood's Mayneon Damages, the writer, in discussing 
 this question of damages for mental suffering in connec- 
 tion with personal injuries, states the rule in this lan- 
 guage: 
 
 '■But we do not apprehend that the rule has any such 
 force as to enable a person to maintain an action "where 
 
 Co., 82 M'ch., 374 ; Western Union 
 Telegraph Co. v. Rogers, 68 Miss., 
 748, )3L. R. A., 859; Memphis, etc., 
 R. R. Co. V. Whitfield, 44 Miss. 466, 7 
 Am. Rep., 699 ; Dorrah v. Railway 
 Co., 65 Miss., 14, 7 Am. St. Rep., 629 ; 
 Porter v. Railway Co , 70 Mo., 66 ; 
 Sidekum v. Railway Co., 93 Mo., 400 ; 
 Ridenhour v. Railway Co., 102 Mo., 
 270 ; McMillan v. Union Press Brick 
 Works, 6 Mo App , 434 ; Brown v. 
 Railway Co., 99 Mo., 310, 12 S. W. 
 Rep., 655 ; Schmitz v. Railway Co., 
 119 Mo., 256, 23 L, R. A., 250 ; Ameri- 
 can Waterworks Co. v. Dougherty, 31 
 Neb., 445, 48 N. W. Rep. ti4 ; Clark 
 V. Winchester, 64 N. H., 471 ; Holyoke 
 V- Railway Co., 48 N. H., 541 ; Dem- 
 ann v. Railway Co., 30 N. Y. S., 926 ; 
 O'Neill V. Railway Co., 15 N. Y. S., 
 84 ; Matteson v Railway Co., 62 Barb. 
 (N. Y.), 364; Brignoli v. Railway Co., 
 4 Dalv (N. Y.), 182; Harding v. Rail- 
 way Co., 36 Hun. (N. Y.), 72 ; John- 
 son V. Wells, Fargo & Co., 6 Nev., 225 ; 
 Lamberton v. Traction Co. ,60 N.J. 
 L. 456, 38 Atl. Rep., 384 ; Wallace v. 
 Railway Co., 104 N. Car. 442; Smith 
 V. Railway Co., 23 Ohio St., 10; 
 Cleveland City Rv- Co. v. Ebert, 10 
 Ohio Circ. Dec, 291, 19 O. C. C. R., 
 725; Fuller v. Bank, 5 O. F. D., 175 ; 
 Penn, etc.. Canal Co. v. Graham, 
 63 Pa. St., 290 ; McLaughlin v. Corry, 
 77 Pa. St., 109, 18 Am. Rep., 432; 
 Scott Township v. Montgomery, 95 
 Pa. St., 444 ; Mo. K. & T. Ry. Co v, 
 Warren (Tex. Civ. App), 39 S. W. 
 Rep., 652; Mo. K. & T. Ry. Co. v. 
 McGlamery (Tex. Civ. App.), 34 S. W. 
 Rep., 395 ; Houston, etc., R. R. Co. v. 
 Boehn, 67 Tex., 152; Houston, etc., 
 R. R. Co. v. Randall, 50 Tex., 254; 
 Texas, etc., R. R. Co. v. Curry, 64 
 Tex., 85 ; Texas Mexican, etc., R. 
 Co. v. Douglas, 73 Tex. 325; San 
 Antonio, etc., R. R. Co. v. Carley 
 (Tex. Civ. App.), 26 S. W. Rep., 903 ; 
 Houston & T. C. Ry. Co. v. Rand, 1 
 Tex. Civ. App., 100; Gulf, C. & S. P. 
 11 
 
 R. Co. V. Trott, 86 Tex. 412, 25 S. W. 
 Rep., 419, 431 ; Fry v. Hillan (Tex. 
 Civ. App.), 37 S. W. Rep., 359 ; Giblin 
 V. Mclntyre, 2 Utah, 384 ; Bovee v. 
 Danville, 53 Vt , 183 ; Richmond, etc., 
 R. R. Co. V. Norment, 84 Va. 167, 10 
 Am. St. Rep., 827; Norfolk & West- 
 ern Rd. Co. V. Marpole (Va),7 Am. 
 Neg. Rep., 171, cases cited; Viual v. 
 Core, 18 W. Va., 1 ; Riley v. Railway 
 Co., 27 W. Va , 145 ; Goodno v. Osh- 
 kosh, 28 Wis., 800 ; Stewart v. Riper, 
 38 Wis., 584; McCoy v. Street Rail- 
 way Co., 88 Wis., 56 ; Reinke v. 
 Bently, HO Wis., 457 ; Stutz v. Railway 
 Co., 73 Wis., 147, 9 Am. St. Rep., 769. 
 
 In Chic, B. & Q R. Co. v. Bines, 45 
 HI. App., 299, it is held that damages 
 may be recovered for pain and mental 
 anguish caused by a personal injury, 
 but the mental anguish for which 
 damages are recoverable must be 
 connected with a result from the 
 injury. 
 
 In Gulf, C. & S. F. Ry. Co. v. Levy, 
 59 Tex., 563, it is held that the cases 
 in which damages have been allowed 
 for mental suffering resulting from 
 injury to the person are those in 
 which mental distress is incident 
 to the bodily injury suffered by the 
 distressed person or those where 
 there is injury to the reputation, or 
 property, in which pecuniary damage 
 is shown, or where the act is such 
 that the law presumes some damage, 
 however slight, from the act com- 
 plained of. 
 
 The general rule is, " that pain of 
 mind is only the subject of damages 
 when connected with bodily injury; 
 it must be so connected in order to 
 include it in the estimate, unless the 
 injury is accompanied b^ circum- 
 stances of malice, insult or inhuman- 
 ity." Morse v. Duncan, 14 Fed., 396, 
 citing Indianapolis, B. & W. R. Co. 
 v. Birney, 71 111., 391 ; Francis v. 
 Transfer Co., 5 Mo. App., 7. 
 
? 91 
 
 MENTAL SUFFERING. 
 
 162 
 
 the only injury is mental suffering, as might be thought 
 from a reading of the loose dieta and statements of the 
 court in some of the cases. So far as I have been able 
 to ascertain the force of the rule, the mental suffering re- 
 ferred to is that which grows out of the sense of peril, 
 or the mental agony at the time of the happening of the 
 accident, and that which is incident to and blendid with 
 the bodily pain incident to the injury, and the apprehen- 
 sion and anxiety thereby induced. In no well considered 
 case has it ever been held that mental anguish alone, 
 unaccompanied by injury to the person afforded a ground 
 of action," 
 
 Mental suffering upon which to 
 base an award of damages lor personal 
 iojuries must be connected with phy- 
 sical pain as one of its elements, or it 
 must be the proximate result of some 
 physical injury. Crawford v. Tele- 
 graph Co., 47 Fed., 544. 
 
 Mental suffering is not readilj' 
 distinguishable from physical suffer- 
 ing, and to become an element of 
 damages it must be based on bodily 
 injury, or the injury by which it is 
 produced must be attended by cir- 
 cumstances of malice, insult or 
 oppression. Dorrah v. Railway Co., 
 65 Miss., 14 ; Western Union Tel. Co. 
 V. Rogers, 68 Miss., 748, 13 L. R. A., 
 859. 
 
 Mental suffering and anxiety caused 
 by a physical injury is an element of 
 damage in an act on therefor, 
 although the injury was not due to 
 the willful act of the defendant. 
 American Waterworks Co. v. Dough- 
 erty, 37 Neb. 373., 55 N. W. Rep., 1051 . 
 
 In Chicago v. McLeau, 133 111., 148, 
 the court said: "The body and mind 
 are so intimately connected, that the 
 mind is very often directly and nec- 
 essarily affected by physical injury. 
 There cannot be severe physical pain 
 without a certain amount of mental 
 suffering. The mind, unless it is so 
 overpowered that consciousness is 
 destroyed, takes cognizance of physi- 
 cal pain and must be more or less 
 affected thereby." 
 
 In Connell v. Telegraph Co., 116 
 Mo., 34, 38 Am. St., 575, 20 L. R. A., 
 
 172, the court said : " The allowance 
 of damages for wounded feelings 
 when they are the concomitant or 
 result of a physical injury is placed 
 rightfully on the gi'ound that the 
 mind is as much a part of the body as 
 the bones and muscles, and an injury 
 to the body included the whole and 
 its effects are not separable." 
 
 In Brown v. Sullivan, 11 Tex., 470, 
 it was said: "When serious bodily in- 
 jury is inflicted involving fractures, 
 dislocations, etc., and results in pro- 
 tracted disability and confinement to 
 bed, we know that some degree of 
 physical and mental suffering is the 
 necessary result. Hence, when a ser- 
 ious bodily injury, which threatens 
 permanent disability and contipues 
 for a long time is proved, the jury are 
 authorized to consider the pain of 
 body and mind in assessing the 
 amount of damages without direct 
 proof of such sufferings." 
 
 In Atchison, T. & S. F. Rd. Co. v 
 Midgett, 1 Kan. App. 138, the court 
 used this language : "Pain and anx- 
 iety of mind in an action for personal 
 injury is a proper element of damages 
 when connected with physical pain 
 or injury, and is the direct result 
 thereof," quoting from the opinion 
 in City of Salina v. Trosper, 27 Kan., 
 544, 63 N. W. Rep., 1055. 
 
 In Reinke v. Bentlev, 90 Wis. 457, the 
 court held that in an action for per- 
 manent injuries caused by the frac- 
 ture of the spinal column, the damage 
 may include injurv to feelings, mental 
 suffering and anxiety of mind. 
 
' ^3 MENTAL SUFFERING. j 91 
 
 Any physical or mental suffering arising from an iniury 
 IS a proper subject of compensation, but injured feelines 
 arising in the mind are not.' 
 
 § 92. Nervous Shock, Peril and Fright. The 
 
 authorities are divided upon the question, how far 
 and under what circumstances an injured person may re- 
 cover damages caused by the negligence of another, for 
 nervous shock to the system. The weight of authority, 
 however, is that such damages may be recovered when- 
 ever the person has received a physical injury, and ner- 
 vous shock is a result of such physical injury. They are 
 allowed upon the principle that it is one of the natural 
 consequences of the injury. Whenever such effect is 
 established by competent evidence, damages therefor 
 should be allowed.' 
 
 Where the physical injury is of such a character that 
 damages may result therefrom, fear may be considered 
 in aggravation of damages.' 
 
 If the fright of the plaintiff, who was carried beyond 
 her destination, by a railroad company, was directly pro- 
 duced by the wrongful act and contributed to the conse- 
 quences of sickness, then the trouble, inconvenience and 
 peril and fatigue of the necessitated return to the sta- 
 tion beyond which she had been carried, were elements 
 of damages proper to be considered.' 
 
 It is proper for the jury to consider the hazard and 
 jeopardy in which the plaintiff was placed, in other words 
 the perils of his life, and allow such damage as resulted 
 therefrom, in determining the damages which he sus- 
 
 'City of Chicago v. Taylor, 170 111., the fright and shock to him. As to 
 
 49, 48 N. E. Rep., 831 ; West Chicago theseelementsof damage, to-wit,phy- 
 
 St. Ry. Co. V. Foster, 175 111., 39fi, 51 sical pain and suffering, and the 
 
 N. E. Rep., 690. fright and the shock, as in the very 
 
 -ry 1 r. -1 ^ err II*- 1. nature of things, these are elements 
 
 Kfio el ''■ f^'^^V" m"-' "^^ ''qo °f damage which are not susceptible 
 
 M^i,^77 V. Railway Co., 82 of any exact computation, and it is 
 
 Mien., d/4. (^j. ^jjg jjjj.y (.Q determine the amount 
 
 'O'Flaherty v. Railway Co., 54 N. as their best,candid and careful judg- 
 
 Y. S., 56. ment shall dictate." This charge was 
 
 In Geveke v. Railway Co., 57 approved by the Supreme Court. The 
 
 Mich., 589, the trial court, instructed same doctrine was again laid down in 
 
 the jury upon this question as fol- the case of Sherwood v. Chicago & 
 
 lows: "PlaintiflF, if entitled to a ver- W. M. Rd. Co., 82 Mich,, 374. 
 
 diet, would have the right to recover * East Tenn., V. & G R. Co. v. Lock- 
 
 for the physical pain and suflFering of hart, 79 Ala., 315. 
 
J 92 MENTAL SUFFERING. 164 
 
 tained and his suffering in body and mind by reason of 
 the.injury.' 
 
 Where a pliysical injury is the natural result of the 
 negligence of the defendant, although it proceeds from 
 and is the result of a mental shock caused directly by 
 the negligent act, the defendant is liable, if the jury 
 might find from the evidence that the shock caused the 
 injury.' 
 
 Some authorities hold, however, that mere fright occa- 
 sioned by a collision, and producing permanent injuries 
 to the nervous system, is a result too remote to be action- 
 able. They base their decision upon the proposition that 
 fright alone, not resulting from nor accompanied by some 
 physical injury to the person, is not sufficient to sustain 
 an action for damages.' 
 
 In Victoria Railway Comm'rs v. Coultas, 13 App. Cas., 
 222, it was held that damages in case of negligent colli- 
 sion must be the natural and reasonable result of the de- 
 fendant's act, and that damages for a nervoiis shock or 
 mental injury caused by frigiit at an impending collision 
 are too remote. This case is approved by the New York 
 court.* 
 
 Mere Fright. But mere fright unaccompanied by any 
 physical injury resulting from the accident cannot be the 
 subject of damages.^ 
 
 'Terre Haute & Ind. Car Co. v. a railway company is liable for in- 
 
 Brunker, 128 Ind., 542; 26 N. E. Rep., juries sustained in consequence of 
 
 178. fright caused by its negligence, 
 
 2 In Buchannan V. Railroad Co., 52 ' Mitchell v. Rochester R. Co., 151, 
 
 N. J. L. 265, 19 Atl. Rep. 234, it N. Y., 107, 34 L. R. A. 781; citing 
 
 appeared that a woman was obliged Ewing v. Railroad Co., 147 Pa. St. 40; 
 
 to throw herself on a railroad plat- 14 L. R. A. 666. 
 
 form to escape being struck by a * Mitchell v. Railroad Co., supra. 
 
 piece of timber projecting from a car * Atchison, T. *^ S. F. R. Co. v. Mc- 
 
 in motion. She had her health im- Ginnis, 46 Kan., 109, 26 Pac. Rep., 
 
 paired by the fright thus occasioned. 453 ; Chicago, R. I. & T R. Co. v. Hitt, 
 
 The court held that she was entitled (Tex. Civ. App.), 31 S. W. Rep., 1084, 
 
 to recover damages for such impair- Judice v. Railway Co., 47 La. Ann. 
 
 ment of her health. 255, 16 So. Rep., 816 : 
 
 In the case of Yoakum v. Kroeger, To the same effect : Haile v. Rail- 
 
 (Tex. Civ. App.), 27 S. W. Rep. 953, it way Co., 60 Fed. Rep., 557, 23 L. R. 
 
 was held that damages are recovera- A. 774 ; Spade v. Railroad Co., 168 
 
 ble for injuries to mind and body en- Mass., 285, 38 L. R. A. 512; Western 
 
 suing upon a nervous shock, caused U. Tel. Co. v. Wood, 57 Fed. Eep., 471 
 
 by the negligence of another. In 21 L. R. A 706; Renner v. Canfield, 
 
 Mack v. Railway Co., 50 S. Car., 223, 36 Minn. 90 ; Wyman v. Leavitt, 71 Me. 
 
 29 b. E. Rep., 905, the court held that 227, 36 Am. Rep., 303. 
 
'65 MENTAL SUFFERING. j 92 
 
 In Cleveland City Railway Co. v. Ebert, 10 Ohio Circ- 
 Dec, -291, 19 O. C. C. R. 725, the circuit court of Cuy- 
 ahoga county says: 
 
 "The principal error made upon the record is whether 
 the shock which the defendant in error claims to have 
 received, and its consequences, should be considered in 
 the assessment of. damages. It seems to be settled by a 
 decided weight of authority that no recovery can be had 
 for injuries resulting from fright merely, caused by the 
 negligence of another, where no personal injury is re- 
 ceived, citing.^ 
 
 "It is equally well settled that if there was a wrongful 
 act on the part of the defendant causing physical injury 
 as well as fright, then the fright and its consequences 
 and mental suffering may be considered in the assess- 
 ment of damages. 
 
 "Just what wrongful act or physical injury will bring 
 the case within this latter rule is not very definitely 
 defined; but an examination of the cases leads to the 
 conclusion that where the tortious act is such as to create 
 a cause of action in favor of the injured person, inde- 
 pendent of the fright and shock resulting therefrom, the 
 case falls within the latter rule. 
 
 "By the finding of the jury, the railway company 
 wrongfully ejected the defendant in error from its car, 
 from which a cause of action arose in her favor against 
 the company, and in the assessment of damages for such 
 wrongful act the shock received and her mental suffering 
 might properly be taken into account." 
 
 This question of the right to recover damages sus- 
 tained, as the result of fright, where no direct or- serious 
 physical injury is received, is discussed in such an able, 
 thorough and convincing manner by a Texas court, that 
 it is given in full in the note below. It covers the ground, 
 and presents the reasons in a clear and concise language. 
 We commend it to the careful consideration and study of 
 any one wishing for an authority in support of the aflBrma- 
 tive of this question.^ 
 
 1 Mitchell V. Railway Co., 45 N. E. ^In the case of Gulf Coast & Santa 
 Rep. 354, supra; Ewing v. Railway Fe Railway Co. v. Hayter,93Tex.,239, 
 Co., 147 Pa. St., 40 ; Warren v. Rail- 47 L. R. A. 325, the plaintiff was rid- 
 way Co., 163 Mass., 484; Spade V. Rail- ing in a train of the Missouri, Kansas 
 way Co., 47 N. E. Rep. 88. There are & Texas Railway Co., which was 
 many other cases to the same efFect. struck by a freight train of the de- 
 
92 
 
 MENTAL SUFFERING. 
 
 166 
 
 But in Smith v. Postal Co., 174 Mass., 576, 47 L. R. A., 
 323, it is held that no recovery can be had for sickness due 
 to purely internal operations of fright caused by a negli- 
 gent act, even if the negligence was gross, and the party 
 
 fendant at a point where one road 
 crosses the other. The plaintiff did 
 not receive any direct physical injury 
 but was generally shaken up and 
 greatly frightened. It was contended 
 on the trial that a serious nervous 
 aflfection known as " traumatic neur- 
 asthenia " resulted from the accident 
 and may have been caused either by 
 the physical shock or by the mental 
 shock produced by fright or by both. 
 
 The trial court in effect charged 
 the jury that if the negligence of the 
 servants of the defendant company 
 caused , a collision of the trains and 
 that as a direct result of said colli- 
 sion,plaintiflf received a mental shock, 
 or a physical injury or both, that 
 caused a disease or sickness to de- 
 velop, from which plaintiff has suf- 
 fered physical pain and mental an- 
 guish, and such negligence of the de- 
 fendant was the proximate cause of 
 such disease or sickness, they should 
 find a verdict for the plaintiff 
 
 The only error assigned was " that 
 the court of civil appeals erred in 
 •holding that the plaintiff can recover 
 for injuries the result of mere shock 
 or fright, when the defendant had not 
 inflicted any bodily injury, and had 
 caused no other disturbance to the 
 plaintifif than such fright or shock." 
 The court said : " The question thus 
 presented is one upon which there is 
 a decided' conflict of authority. It is 
 generally held that for mental suffer- 
 ing accompanying physical injuries 
 negligently inflicted, damages may 
 he recovered ; but many courts hold 
 that for sickness, impairment of 
 mental faculties or physical lesions 
 which merely result from a mental 
 emotion caused by the wrongful act 
 or omission of another, but which do 
 not accompany such mental emotion, 
 no recovery can be had. This court 
 has held that there can be no recovery 
 for mere fright not attended nor fol- 
 lowed by any other injury. GulfC& 
 S. F. R.Co. V. Trott, 86 Tex., 412 25 
 S. W. Rep., 419. But in Hill v. Kim- 
 hall, 76 Tex., 210, 7 L. R. A.. 618 
 
 which presented a similar question 
 to that before us, we held that a re- 
 covery could be had for a miscarriage 
 alleged to have been caused by a 
 mental shock, unaccompanied by any 
 physical violence whatever to the per- 
 son of the injured woman. That, 
 however, was a very strong case, and 
 when we granted the writ of error 
 we were in doubt whether th.it deci- 
 sion justified the ruling of the trial 
 court and of the court of civil ap- 
 pends in the present case. We have 
 therefore re-examined ihe question 
 in the light of the very numerous au- 
 thorities which have heen presented 
 by counsel, with the result that we 
 have been unable to discover any 
 substantial difference between the 
 case where an injury has been in- 
 flicted through physical agencies 
 and one in which a mental emotion 
 constitutes one of the links in the 
 chain of causes which have led to the 
 injurious result. * * * By some it 
 is held that a physical injury is not a 
 natural and probable consequence of 
 a mental emotion, however potent, 
 and that the injury in such a case is 
 one not reasonably to be anticipated. 
 Others content themselves by saying 
 that a contrary rule would result in a 
 multiplication of damage suits, and 
 in intolerable and vexatious litiga- 
 tion. The uncertainty and obscurity 
 attending the facts, and the conse- 
 quent difficulty of administering the 
 law, are also urged as an objection to 
 allowing damages for such injuries. 
 To our minds neither proposition af- 
 fords a sufficient reason for denying 
 a recovery in these cases. This court 
 has announced the doctrine that in 
 order to constitute negligence, the 
 act or omission must be the proxi- 
 mate c?use of an injury, which in 
 the light of the attending circum- 
 stances ought to have been foreseen 
 as a natural and probable consequence 
 of such act or omission. Texas & 
 P. R Co. V. Bigham, 90 Texas, 223, 38 , 
 S. W. Rep., 162. 
 
 " But in the light of modern science 
 
(67 
 
 MENTAL SUFFF5RING. 
 
 i 92 
 
 in fault ought to have known that the result would follow 
 his act. Citing Spade v. Railway Co., 168 Mass., 285, 38 
 L. R. A., 512, 47 N. E. Rep., 88, 172 Mass., 488, 43 L. R. 
 A., 832; White v. Sanders, 168 Mass., 296. 
 
 The rule as laid in Spade v. Railway Co., 168 Mass., 
 285, is distinguished and modified when the same case is 
 again before the court in the decision appearing in 172 
 Mass., 488. Other authorities might be cited, but those 
 cited are some of the leading authorities and illustrate 
 the grounds upon which the courts base their opinions 
 for refusing or for allowing damages to be recovered for 
 mere fright. 
 
 It seems that the best reason is with those authorities 
 which hold that damages are recoverable if the fright 
 was the natural result of the negligent act or omission, 
 whether the result could have been foreseen or not. 
 
 — nay, in the light of common knowl- 
 edge — can a court say, as a matter of 
 law, that a strong mental emotion may 
 not produce in the subject, bodily or 
 mental injury ? May not epilepsy, or 
 other nervous disorder, or insanity, 
 result from fright ? May not a mis- 
 carriage result from a mental shock ? 
 In several of the adjudicated cases 
 in which the question under consid- 
 eration has bien passed upon, there 
 was a miscarriage caused by fright 
 or other mental emotion. Mitchell 
 V. Railway Co., 151 N. Y., 107 ; 34 L. 
 R. A., 781 ; Renner v. Canfield, 36 
 Minn., 90; Rock v. Denis, M. Iv. Rep., 
 4 Super. Ct, 356 ; Fitzpatrick v. Rail- 
 way Co., 12 U. C Q. B.,645. On the 
 other hand, the reported cases would 
 indicate that the litigation arising 
 from injuries inflicted through a men- 
 tal shock are not so numerous as to 
 cause any considerable increase of 
 litigation; so that this objection, as 
 it seems to us, rests upon an imagi- 
 nary ground. It is true that in most 
 cases it may be difficult to determine 
 the extent of a mental shock and its 
 result upon the physical system. 
 But in our opinion this is not suffi- 
 
 cient reason for refusing a remedy 
 for damages resulting from a wrong. 
 The same difficulty exists in many 
 other cases in which that objection 
 has never been urged as a reason why 
 a recovery should be denied. 
 
 " We conclude that where a physi- 
 cal injury results from a fright or 
 other mental shock, caused by the 
 wrongful act or omission of another, 
 the injured party is entitled to -e- 
 cover his damages, provided the act 
 or omission is the proximate cause 
 of the injury, and tht iniury ought, 
 in the light of all the circumstances 
 to have been foreseen as a natural 
 and prob nble consequence thereof. 
 In our opinion, as a general rule, these 
 questions should be left to the deter- 
 mination of a jury. The following 
 cases are in accord with our views : 
 Bell V. Railway Co., Ir. L. R., 26 C. L., 
 428; Sloane v. Railway Co., Ill Cal., 
 668, 32 L. R. A., 193, 44 Pac. Rep., 320 ; 
 Mack v. Railway Co , 52 S. Car , 323, 
 40 L. R. A., 679, 29 S. E. Rep., 905 ; 
 Purcell V. Railway Co.. 48 Minn., 134, 
 16 L. R. A., 203, 50 N. W. Rep., 1034 ; 
 Fitzpatrick V. Railway Co., 12 U. C, 
 Q. B.,645." 
 
93 
 
 MENTAL vSUFFERING. 
 
 168 
 
 CHAPTER IX. 
 
 MENTAL SUFFERING CONTINUED. 
 
 Sec. 
 93. 
 
 94. 
 
 Mental Suffering Based on Mu- 
 tilation of Body. 
 
 Mental Suffering Need not be 
 Pleaded. 
 
 Sec. 
 
 95. Mental Suffering in Apprehen- 
 sion of Bodily Injury. 
 66. What is Bodily Injury. 
 
 § 93. Mental Suffering based on Mutilation of 
 
 Body. Mental suffering caused by criticism or by humil- 
 iation on account of mutilation of the body, disfigurement 
 of the face, impediment of speech or impairment of the 
 mental faculties of the injured person, as the result of 
 some negligent act, is an element of damages for which a 
 recovery may be had.^ 
 
 The amount of recovery depends upon the character of 
 the disfigurement or mutilation, and also upon the busi- 
 ness, trade or profession in which the injured person 
 may be engaged. Its permanency may become an 
 important factor. The sex of the injured person may 
 also raise an additional question for consideration. If 
 the business of the injured party requires him to mingle 
 daily among other persons, his disfigurement or mutila- 
 tion may be a cause of criticism, subjecting him to humil- 
 iation and embarrassment which he would not experience 
 were he engaged in a business of less publicity. Then 
 the peculiar mental organism of the person may be shown 
 and considered b}'- the jury. But the humiliation and 
 embarrassment of the person should be clearly estab- 
 lished by competent evidence and not made to rest upon 
 the imagination or idiosyncrasy of the injured person. 
 
 1 Stewart v. Maddox, 63 Ind., 51 
 The Oriflamme, 3 Sawyer (U. S.), 397 
 St. Louis & South W. Ry. Co. v 
 Dobbins, 60 Ark., 481, 30 S. W. Rep. 
 887; City of Birmingham v. Lewis 
 92 Ala. 352, 9 South. Rep,, 243 ; Miller 
 V. Railway Co., 64 N. Y. Supp., 606 
 Rosenkranz v. Railway Co., 108 Mo. 
 9, 32 Am. St. Rep., 588 ; Rummel v 
 HeatingCo. , (Pa. St. ,) 18 Atl. Rep., 78 , 
 Toledo Con. St. Ry. Co. v. Sweeney, 
 4 O. C. D., 11, 8 O. C. C. R., 310 
 
 Newberry v. Lumber & Mfg. Co., 100 
 Iowa, 441, 69 N. W. Rep., 743; Gilbert 
 V. Hoffman, 66 Iowa, 205, 23 N. W. 
 Rep., 632; Sherwood v. Railway Co., 
 82 Mich., 374, 46 N. W. Rep., 773; 
 Nichols V. Brabagon, 94 Wis., 549, 
 69 N. W. Rep., 342; Galveston, H. & 
 S. A. R. Co. V Clark, 21 Tex. Civ. 
 App., 167, 51 S. W., 276; Greer v. 
 Railway Co., 94 Ky., 169, 42 Am. St. 
 Rep., 345, where the plaintiff lost a 
 limb. 
 
169 MENTAL SUFFERING. 
 
 ? 93 
 
 A permanent and ugly scar upon or the loss of any part 
 of the face will naturally cause a person to suffer men- 
 tally and be a continuous source of annoyance and vexa- 
 tion. It may prevent him from pursuing certain kinds 
 of business or from following some of the professions and 
 will subject him to the gaze of the curious and ignorant. 
 This is especially true where the injured person is a 
 woman. It requires no argument to establish that men- 
 tal suffering or anguish will follow some of these condi- 
 tions. It is a matter of common observation and almost 
 daily experience. In the case of a child or young woman, 
 the disfigurement may injure the prospect of marriage or 
 prevent it altogether. 
 
 in Toledo Con. St. Ry. Co. v. Sweeny, 4 O. C. D., 11, 
 in respect to damages, the court says: "The prospects 
 are that he will be compelled to employ physicians, 
 and he may be compelled to employ assistants before 
 he is through life, to talj.e care of him. He will be a suf- 
 ferer physically and will go down to his grave with a 
 feeling that life is not a very pleasant one at any rate; 
 that he is a permanent cripple, and all his life will be 
 impressed with that physical condition. Now it is very 
 difficult to state what would be a fair compensation or to 
 establish any permanent rule that could be followed. 
 He should be awarded that which will give him at least 
 the means of a livelihood as fully and as completely as he 
 would be able to earn if he were well; it should be suffi- 
 cient to minister to his personal comforts as long as he 
 lives, and furnish him with medical aid and clothes and 
 things which he may need. Beyond that the physical suf- 
 fering and the pain which he toill endure, the humiliation 
 and the real burden which is upon the marHs mind and 
 which willfollov) him all his life, are to be considered.'''^ 
 
 in Uockwell v. Borough of Eldred, 7 Pa. Superior 
 Ct. (Pa.), 95, it is held that a person who has sustained a 
 mutilation of his body, thus rendering him an object of 
 curiosity or ridicule may recover damages for the em- 
 barrassment and mortification arising therefrom. 
 
 In Galveston, H. & S. A. Ry. Co. v. Clark, 51 S. W. Rep., 
 276, it was held, that damages for mental suffering aris- 
 ing from the disfigurement caused to a child seventeen 
 months old, may be recovered. 
 
i 93 MENTAL SUFFERING. (70 
 
 In Griflfen v. Lewiston, Idaho (i89d), 55 Pac. Rep., 545, 
 the rule was laid down that the disfigurement of a person 
 caused by a tortious injury is an element of general dam- 
 age, but the annoyance caused by the contemplation of 
 such disfigurement is too remote to be considered as an 
 element of damages. 
 
 In actions to recover damages for bodily pain, mental 
 anguish and permanent disfigurement caused by negli- 
 gently exposing the plaintiff to small-pox, in defendant's 
 hotel, the plaintiff cannot be compelled to show each item 
 of damages he has sustained and the amount thereof.' 
 
 In Smith v. Pittsburgh & W. Ry. Co., 90 Fed. Rep. 783, 
 the court said: "I am unable to see why a girl five years 
 old may not ask the jury to consider what effect the injury 
 of disfigurement will probably have on the prospects of 
 her marriage when she reaches the age of womanhood, 
 and how far the money value of her life may be blasted 
 by that circumstance," quoting from the opinion of 
 Judge Deady, in the case of Ernestine Koch v. The Ori- 
 flamme, 3 Sawy. (U. S. Cir. Ct.), 397, an action in admiralty, 
 in which he, allowing as one item, $500, as a wound on the 
 forehead, says: "The scar will be a permanent disfigure- 
 ment of her person for which she is entitled to some 
 compensation. Karr v. Parks, 44 Cal., 49. Tn this coun- 
 try, at least, it is still open to every woman, however 
 poor or humble, to obtain a secure and independent posi- 
 tion in the community by marriage. In that matter, 
 which is said to be the chief end of her existence, per- 
 sonal appearance— comeliness— is a consideration of com- 
 parative importance in the case of everv daughter of 
 Eve." 
 
 In Sehmitz v. St. Louis, Iron Mt. & South. Ry-. Co., 119 
 Mo., 256, 23 L. R. A., 250, it is held : that mental anguish 
 of a boy nine years old, consisting of grief and sorrow 
 over the loss of his limb and becoming a cripple for life, 
 IS a proper element of damages in an action by him for 
 mjuries sustained by the negligence of a railway com- 
 pany. 
 
 In Central R. & B. Co. v. Lanier, 83 Ga., 587, the 
 court laid down this proposition : that mortification and 
 anguish of mind which a person has suffered and will 
 suffer in the future, by reason of the mutilation of his 
 
 ' Gilbert v. HoflFman, 66 Iowa, 205, 23 N. W. Rep., 632. 
 
'71 MENTAL SUFFERING. { 93 
 
 body, and the fact that he may become the object of curi- 
 osity or ridicule among his fellows, may be considered in 
 determining the amount of damages for personal injuries 
 
 In Western & Atl. Ry. Co., v. Young, 81 Ga., 397 12 Am 
 St. Rep., 320, the court held that among the results of 
 the injury to be considered are pain and suffering, dis- 
 figurement and mutilation of the person, and impaired 
 capacity to pursue the ordinary avocations of life at and 
 after attainment of majority. 
 
 In Heddles v. Chicago & Northwestern Ry. Co., 77 
 Wis., 228, 20 Am. St. Rep., 106, the plaintiff received an 
 injury which required the amputation of his right leg at 
 the knee, and the left leg above the ankle, and tlie trial 
 court charged the jury that he might recover for any 
 anguish of mind which he had suffered or will suffer in 
 the future by reason of the mutilation of his body. The 
 court said: "There can be no doubt that the loss of the 
 plaintiff's limbs would naturally cause mortification and 
 anguish on the part of the plaintiff, and it is also quite 
 certain that he would be, to a considerable extent, an 
 object of curiosity, and to the thoughtless an^ unfeeling 
 an object of mdicule. " 
 
 In Power v. Harlow, 57 Mich., 107, an action was 
 brought to recover damages for a permanent injury to the 
 leg of a boy eight years and four months old. The court 
 held: that damages for bodily injury, resulting in the 
 mutilation of a limb, inay properly take account of the 
 consequent limitations upon the victim's choice of an 
 occupation, and on his ability to work, and also to the 
 permanent annoyance likely to be caused by the de- 
 formity. 
 
 In Beck v. Thompson, 31 West Va., 459, 13 Am. St. Rep., 
 870, an action was brought to recover damages for inju- 
 ries sustained from an assault and battery. The court 
 laid down the rule that the jury may, in addition to loss 
 of time, expenses and physical suffering, compensate the 
 plaintiff for mental anguish, shame and dishonor which 
 he has sustained.' 
 
 Disfigurement of the person caused by the injury may 
 be considered by the jury in assessing the damages to 
 which such person may be entitled to recover.'' 
 
 'Sherwood v. Railway Co., 82 v. Wood, 48 Ga., 566. 
 Mich., 374; Cameron v. Brv'ti, 89 2 NTewberry v. Lumber Co., 100 Iowa, 
 
 Iowa, 214; Atlanta, etc., R. Co. 441. 
 
§ 93 MENTAIv SUFFERING. 172 
 
 Contrary Rule. The court of Illinois holds a con- 
 trary doctrine. In that court it is laid down that future 
 mental pain, that is, mere humiliation and grief resulting 
 from a contemplation of a maimed and disfigured body, 
 is not an element entering into an ascertainment of the 
 pecuniary damage one has sustained as the result of neg- 
 ligence.^ 
 
 Federal Court. The federal court in Illinois follows 
 the decisions of the state court on this question." 
 
 § 94. Mental Damages not Required to be 
 Pleaded. Damages for mental suffering caused by an 
 accident negligently occasioned, by which a person loses 
 the use of an arm, may be recovered although they are 
 not especially pleaded nor proved.' But it would 
 undoubtedly be the better practice to plead such damage 
 and thus prevent any question or discussion if the evi- 
 dence is suflBcient to justify a recovery. 
 
 § 95. Suffering in Apprehension of Bodily in- 
 jury. The necessity for a bodily injury is held by a large 
 number of authorities, while in other cases some actual 
 damage must be shown in order to support an action for 
 damages for mental suffering. The mere fear or nervous 
 apprehension^ of physical injuries, which are in fact 
 never sustained, is not a cause upon which an action can 
 be maintained.* 
 
 1 Chicago &Gd. Trunk Ry. Co. v. Union Tel. Co. v. Rogers, 66 Miss., 
 
 Spurney, 69 111. App., 549, 2 Am. Neg. 274, 13 L. R. A. 359, 24 Am St Rep., 
 
 Rep , 505 ; Illinoxs Central Rd. Co. v. 306 ; Dorrah v Railroad Co., 65 Miss., 
 
 Cole, 165 111. 334 ; West Chicago St. 14, 7 Am. St. Rep., 629 ; Trigg v. 
 
 Ry. Co. V. James, 68 111. App., 609. Railroad Co., 74 Mo., 147,-41 Am. Rep., 
 
 Chicago, R. I. & P. R. Co v. Caul- 305 ; Strang v. Railway Co 1 Mo , 
 
 field, 11 C. C. A., 552, 63 Fed. Rep , App., 209; Lehmer v. Railway Co., 47 
 
 SAT ^ c. „ ^ Hun. (N. Y.), 355; Ewing V. Railway 
 
 co^''£°?,7T?*''^^^?y- ^°' ^^ ^'^•> Co., 147 Pa. St. 40; Mitchell v. Railway 
 
 88 59 N. W. Rep. 453. Co., 151 N. Y., 107 ; Gulf, etc. R. Co. 
 
 * Russell V Telegraph Co., 3 v. Trott, 86 Tex. 412, 25 S. W. Rep., 
 
 n o^'^^ jS^'iP"'^" "■ Telegraph 431 ; Southern Pac. R Co. v. Ammons, 
 
 Co 88 Ga /63,30 Am. St. Rep., 183; (Tex. Civ. App.,) 26 S. W. Rep., 135; 
 
 flo in°1S?''^i^'''- ^- ^- ^°- ^- Stables, Fort Worth, etc. R. Co., v. Barton (Texl 
 
 dm lo ? li ^/^'^nn'^-n?"''^"' '^^ "^- ^^^- ^PP-) 15 S. W. Rep., 197; Hawkins 
 
 401, 42 L. R A 199; Terre Haute etc. v. Front St. Cable Co"., 3 Wash., 592; 
 
 R. R. Co. V. Brunker, 128 Ind. 542; Wilcox-v. Railroad Co., 52 Fed.. 264; 
 
 A^ 41T IM • w ^- '^° ^- McOinnis, Victoria R. Comr's v. Coultas, L. R. 
 
 46 Kan. 109 ; Wyman v. Leavltt, 71 13 App 222 • Lvnch v Knip-ht » H 
 
 Ra'lroa'd Co^?fi8 m"- ''^«k ^?,'"^^ ^^ ^^ ^^^ ''' '' ^'^^ - SoidVai 
 I'^T.^mtTrnTl: II] '^e^e^rn '' ^"'- ^^P" '"'' '' ^^ ^^ ^^^^ '''■ 
 
'73 MENTAL, SUFFURING. 
 
 95 
 
 InCanumg v. Williamstown, 1 Cush. (Mass.), 45i, an 
 action was brought to recover damages against a town for 
 an mjurj- claimed to have been sustained by the plaintiff 
 on account of an accident in a defective bridge. The 
 court laid down the rule that he could not recover any- 
 thing if there was no injury to his person, and he merely 
 was subjected to risk and peril, which caused fright and 
 mental suffering-. 
 
 The doctrine laid down in Victoria R. Comr's v. 
 Coultas, L. R. 13 App., 223, was not approved in Bell v. 
 Railroad Co. Ir. L. R. 26 C. L. 428., and the opinion in 
 Spade V. Railroad Co., 168 Mass., 285, does not hold the 
 doctrine except in carefully worded language with quali- 
 fication as the exigencies of the case may require, citing 
 authorities against the rule and limiting it in its applica- 
 tion. The examination of Braun v. Craven, 175 111. 401, 
 where the court discusses the question at length and 
 reviews a number of authorities, shows that from the 
 facts there was ver}- slight negligence or wrong upon 
 which to predicate an action ; and the refusal of the 
 court, upon a reversal of the judgment of the trial court 
 to grant a new trial, was probably correct so far as this 
 case was concerned. 
 
 In the federal court of Texas, it has been held that no 
 damages could be recovered for insanity caused from 
 fright and nervous apprehension where the person did 
 not receive any physical injury, since insanity is not the 
 usual or probable result of a fright or excitement caused 
 by a railroad accident, even though the railroad company 
 was guilty of negligence.' 
 
 This rule is based on the proposition of law that dam- 
 ages cannot be recovered for any injury except such as is 
 the natural result thereof. It then resolves itself down to 
 the proposition whether the result is the natural one, and 
 the court can fix or deny the liability, by saying that the 
 result is or is not the natural result of the injury. 
 
 It may be considered very doubtful whether the doc- 
 trine laid down in the Texas case is sound, for the reason 
 that it invades the province of juries. The better rule is 
 that the defendant is liable for the insanity if the jury 
 should find from all the facts and circumstances that the 
 insanity was the natural result of the negligent act of 
 
 ' Haile V. Railroad Co., 60 Fed., 557, 23 L. R. A., 774. 
 
^ 95 MENTAL SUFFERING. 1 74 
 
 the person or company defendant even if there was no 
 physical injury. ' 
 
 In Fox V. Barkey, 126 Pa. St., 164, it was held that 
 damages are not recoverable for fright caused from the 
 negligence of blasting where no physical injury was 
 received, the court saying: "The injury was not the 
 natural or proximate result of the act complained of." 
 
 By some authorities the rule is laid down that no dam- 
 ages can be recovered, even when physical injury follows, 
 as a result of, the fright or nervous mental disturbance,, 
 such as insanity, blindness or nervous proslration." 
 This rule of law is based upon the ground that if no 
 recovery can be had for the fright or nervous apprehen- 
 sion, then no damages can be recoverable for the conse- 
 quences of such fright. But the soundness of this rule 
 may well be questioned and is questioned b\' many of the 
 courts whose opinion is worthy of respect and considera- 
 tion.' 
 
 In Mitchell v. Railway Co., 151 N. Y., 107, it was held 
 that a miscarriage resulting from mere temporary fright 
 and nervous apprehension from a negligent act of the 
 defendant, could not be regarded as the natural and 
 proximate result of such negligence. The court in dis- 
 cussing this question used this language: "If it be 
 admitted that no recovery can be had for fright occasioned 
 by the negligence of another, it is somewhat difflcult to 
 understand how a defendant would be liable for its conse- 
 quences. Assuming that fright cannot form the basis of 
 an action, it is obvious that no recovery can be had for 
 injuries resulting therefrom. That the result may be 
 nervous disease, blindness, insahity or even a miscar- 
 riage, in no way changes the principle. These results 
 merely show the degree of the fright or extent of the 
 damages.* The right of action must still depend upon the 
 question whether a recovery may be had for fright. If it 
 can, then an action may be maintained, however slight the 
 
 . 1 See sec. 96,^<pj/, '■ What is Bodily » See authorities, posi Sec. 96, 
 
 iT^'A T, •, ^ ,„„ " '^^''^ " Bodily Injury." See also 
 
 'Spade V. Rai way Co., 168 Mass., fiosi, Ch. 14, where the question of 
 
 285 Hailev. Railway Co., 60 Fed., 557; the right to recover damages for 
 
 vf ??>? T i^^'^^'^J ?°' ''^.^"°- <N- negligently sending and delivering a 
 
 Vhi^' ^ll7 "'■ Te'eS'-aph Co., 54 telegram is discusstd. 
 
 Fed. Rep , 634. 4 gee Victoria R. Comrs. v. Coultas, 
 
 L. R., 13 App., 222. 
 
'75 MENTAL SUFFERING. 
 
 i 96 
 
 injury. If not, then there can be no recovery, no matter 
 howgrave or sen mis the consequences. ' ' 
 
 By some courts the rule is laid down to exclude a 
 recovery of damages in all cases of mental distress or 
 nervous shock, resulting from negligence, where there is 
 no physical injury contemporaneous therewith.' 
 
 All of the authorities claim that they are right in their 
 reasoning and conclusions, and that the others are wrong. 
 But they seem to fail to draw the distinction between 
 cases where no actual physical injury followed from the 
 fright and nervous shock, and those where some direct 
 consequence or effect of a physiological character re- 
 sulted from such fright and shock. They assume that 
 their premise is absolutely correct, and that no damage 
 can be recovered for fright without contemporaneous 
 physical injury. They then reach the conclusion that 
 where there was no contemporaneous physical injury, no 
 liabilitj'- attaches or can arise and attach for the eon- 
 sequences of such fright and shock, however serious or 
 grave they ma}^ be. 
 
 It may be admitted that damages are not recoverable 
 for mere temporary fright without any actual injury to 
 the person resulting therefrom, but where a physiological 
 effect follows as a result of a fright caused by the negli- 
 gence, both good sense and justice demand that the 
 wrongdoer should be held responsible, providing no inter- 
 vening cause occurred to account for such physiological 
 effect. No ironclad rule can be laid down for these cases, 
 but each injury should be determined by its own peculiar 
 facts and circumstances, and by the exercise of good 
 common sense, and a judgment broad enough to distin- 
 guish between a fright followed by physical effect and 
 consequences, and one without any such consequences. 
 The law should be so administered as to do justice and 
 furnish a redress for any wrong actually done. 
 
 § 96. What is Bodily Injury. Before the right to 
 recover damages for fright and nervous shock is denied 
 
 ' Chapman V. Telegraph Co., 88 Ga., 3 Dakota., 315 ; Chase v. Telegraph 
 
 763, 30 Am. St., Rep, 183, 17 L. R. A., Co., 44Fed. Rep.,554; Crawson v.Tel- 
 
 430 ; Renner v, Canfield, 36 Minn., 90 ; egraph Co., 47 Fed. Rep., 544 ; Tyler v. 
 
 Trigg V. Railway Co., 74 Mo., 147, 41 Telegraph Co., 54 Fed. Rep., 634; 
 
 Am. Rep., 305 ; Strange v. Railway Western Union Telegraph Co. v. 
 
 Co., 1 Mo. App. R., 209; West v Tel- Wood, 57 Fed. Rep., 471; Western 
 
 egraph Co , 39 Kmn., 93, 7 Am. St., Union Telegraph Co. v. Rogers, 68 
 
 Rep., 530 Russell v. Telegraph Co., Miss., 748, 24 Am. St. Rep., 300. 
 
? 96 MFNTAL SUFFERING. 176 
 
 because there was no physical injury to the person, as 
 laid down by some authorities, it is necessary to know 
 what is meant by bodily injury. The best test of the 
 question of what is bodily injury, is the effect of the act 
 of negligence upon the person. If the effect is physiolog- 
 ical rather than psychological, then whatever that effect 
 may be, it furnishes a ground of action for damages, 
 whether there was an actual physical injury or not. It is 
 not necessary that there should be a bruise, or wound, or 
 actual bodily pain or even impact with the person, in order 
 to recover damages for fright and nervous apprehension, 
 resulting from or cotemporaneous with such negligent 
 act. ^ 
 
 In Warren v. Railway Co., 163 Mass., 484, the evidence 
 tended to show that the carriage of the plaintiff was struck 
 by the railroad train of the defendant throwing plaintiff 
 out upon the ground, although not doing him any actual 
 bodily injury. That he had a severe shock by the acci- 
 dent, and that at the time of the trial he was still suffer- 
 ing fi^om nervous prostration caused by the said accident. 
 It was held that in estimating damages the jury might 
 take into account, not only the physical injury, but also 
 the fright and nervous shock. The court said : "It is 
 physical injury to the person to be thrown out of a wagon 
 or to be compelled .to jump out even though the harm done 
 consists mainly of a nervous shock." Citing Canning v. 
 Williamston, 1 Cush., 451, Victorian Railway Comr's v. 
 Coultas L. R.,13 App., 222; Bell v. Railway Co., 26 L. R. 
 Ir., 428; Segur v. Barkhamsted, 22 Conn., 290. 
 
 In Buchanan v. Railway Co., 52 N. J. L., 41, it ap- 
 peared that the plaintiff (a woman) was rightfully upon 
 the platform of the railroad depot and was obliged to throw 
 herself prostrate upon it in order to escape being struck 
 by a piece of timber projecting from a car in motion. The 
 nervous shock occasioned by the fright greatly impaired 
 her health. It was held that this was a physical injury, 
 and that she was entitled to recover damages for such 
 impairment of her health. 
 
 'Bell V. Railroad Co., L. R., 26 Ir., PurceHv.Reilwav Co.,48 Minn., 134,16 
 
 428; Warren V. Railway Co., 163 Mass., L. R. A., 203; Mack v. Railway Co., 
 
 484 ; Buchanan v. Railway Co., 52 N. .52 S. C, 323, 40 L. R. A., 679 ; Sloane 
 
 J. L., 484 ; Consolidated Traction Co. v. Southern Cal. R. Co., Ill Cal., 668, 
 
 y Lambertsen, 59 N.J. L., 297, 30 Atl. 32 L. R. A., 193 ; Razzo v. Varni, 81 
 
 100 ; Gulf Coast & S. P. R. Co, v. Hav- Cal., 289 ; Yoakum v. Kroeger, (Tex. 
 
 ter,93Tex.239.,7 Am. Neg. Rep., 359; Civ. App.) 27 S. W. Rep., 953. 
 
'77 MENTAL SUFFERING. 
 
 ? 96 
 
 In Consolidated Traction Co. v. Lambertson, 59 N. J. 
 L., 297, it appeared that the plaintiff was in a wagon which 
 was struck by one of the cars of the defendant going at a 
 great speed. The car carried the wagon along some dis- 
 tance before it could be stopped. It was held that there 
 was an actual injury done to the plaintiff's person and 
 that damages could be recovered for fright. 
 
 In Canning v. Williamstown, 1 Cush., 451, it appeared 
 that the bodily injury was very insignificant, yet the 
 court held that if the injury was a ground for an action, 
 and caused the mental suffering complained of, that such 
 suffering might be considered a part of the injury for 
 which damages might be recovered. 
 
 In Sloane v. Railway Co., Ill Cal. 668, 32 L. R. A., 193, 
 the reasoning of the court commends itself as both prac- 
 tical and sound. The evidence showed that the plaintiff 
 was a very nervous person, and the fright and nervous 
 shock produced insomnia and paroxysms. The court 
 said: " The real question presented is whether the sub- 
 sequent nervous disturbance of the plaintiff was a suffer- 
 ing of the body or of the mind. The interdependence of 
 the mind and body is in many respects so close that it is 
 impossible to distinguish their respective influence up(m 
 each other. It must be conceded that a nervous shock 
 or paroxysm, or a disturbance of the nervous system is 
 distinct from mental anguish and falls within the physio- 
 logical rather than the psychological branch of the human 
 organism. It is a matter of general knowledge that an 
 attack of sudden fright or an exposure to imminent peril 
 has produced in individuals a complete change in their 
 nervous system and rendered one who was physically 
 strong and vigorous, weak and timid. Such a result must 
 he regarded as an injury to the body rather than to the mind, 
 even though the mind be at the same time injuriously af- 
 fected. Whatever may be the influence by which the 
 nervous system is affected, its action under that influence 
 is entirely distinct from the mental process which is set 
 in motion by the brain. The nerves and nerve centers of 
 the body are a part of the physical system, and are not 
 only susceptible of lesion from external causes, but 
 are also liable to be weakened and destroyed from 
 causes primarily acting upon the mind. If these nerves 
 
 12 
 
96 
 
 MENTAL SUFFERING. '78 
 
 or the nerve system are thus affected, there is a phy- 
 sical injury thereby produced ; and if the primal cause 
 of this injury is tortious, it is immaterial whether it is 
 direct, as by a blow, or indirect through some action upon 
 the mind. * * * The mental condition which super- 
 induced the bodily harm, in the foregoing cases, was 
 fright, but the character of the mental excitation by 
 which the injury to the body is produced is immaterial. 
 If it can be established that the bodily harm is the direct 
 result of the condition, without any intervening cause, it 
 must be held that the act, which caused the condition, set 
 in motion the agencies by which the injury was produced 
 and is the proximate cause of such injuries." 
 
 In Purcell v. Railway Co., 48 Minn., 134, 16 L. R. 
 A., 203, it appeared that the defendant so negligently 
 managed its cars that a collision seemed imminent and 
 was so nearly caused, that the incident and attendant 
 confusion of ringing alarm bells, and passengers rushing 
 out of the car, caused to the plaintiff sudden fright and 
 reasonable fear of immediate death or great bodily injury, 
 and that the shock thus caused threw her into violent 
 convulsions and resulted in, she being pregnant, a mis- 
 ■ carriage and subsequent illness. The court said: "Of 
 course negligence without injury gives no right of action. 
 On the argument there was much discussion of the ques- 
 tion whether fright and mental distress alone constitute 
 such injury that the law will allow a recovery for it. 
 The question is not involved in the case. So it may be 
 conceded that any effect of a wrongful act or neglect on 
 the mind will not furnish ground of aeticra. Here is a 
 physical injury, as serious certainly as would be the 
 breaking of an arm or a leg. Does the com plaint sliow that 
 the defendant's negligence was the proximate cause of 
 that injury? If so, the action will lie. There may be 
 a succession of intermediate causes, each produced by 
 the one preceding, and producing the one following it. 
 It must appear that the injury was the natural conse- 
 quence of the wrongful act or omission. The new, inde- 
 pendent, intervening cause, must be one not produced 
 by the wrongful act or omission, but independent of it, 
 and adequate to bring about the injurious result, whether 
 the natural connection of events was maintained or was 
 broken by such new independent cause is generally a 
 
'^8 MENTAL SUFFERING. g 96 
 
 question for the jury. In this case the only cause that 
 can be suggested as intervening between the neffliffence 
 and the mjuryis plaintiff's condition of mind, to-wit, her 
 fright. Could that be a natural adequate cause of the 
 nervous convulsions? The mind and the body operate 
 reciprocally on each other. Physical illness "or iniurv 
 sometimes cause mental disease. A mental shod or 
 dxsturhame sometimes causes injury or illness of body 
 especially of the nervous system. 
 
 "Now if the fright was the natural consequence of— 
 was brought about, caused by— the circumstances of 
 peril and alarm in which defendant's negligence placed 
 plaintiff, and the fright caused the nervous shock, and 
 convulsions, and consequent illness, the negligence was 
 the proximate cause of those injuries. That a mental 
 condition or operation on the part of the one injured 
 comes between the negligence and the injurv does not 
 necessarily break the required sequence ' of "intermedi- 
 ate causes." 
 
 In Bell V. Railway Co., L. R., 26 Ir., 428, Mrs. Bell 
 was a passenger upon one of the defendant's trains, and 
 on account of the negligence of the defendant in its 
 management of the train suffered great fright. She 
 had been previously a strong, .healthy woman, but after 
 this occurrence she suffered from fright and nervous 
 shock, was troubled with insomnia, and her health was 
 greatly impaired. 
 
 The jury were instructed that if in their opinion great 
 fright was a reasonable and natural consequence of the 
 circumstances in which the defendant by its negligence 
 had placed her, and that she was actually put in fright 
 by those circumstances, and if the injury to her health 
 was in their opinion the reasonable and natural conse- 
 quence of such great fright, and was actually occasioned 
 thereby, the plaintiff was entitled to recover damages 
 for such injury. This was objected to on the ground that 
 unless the fright was accompanied by physical injury, 
 even though there might be a nervous shock occasioned 
 by such fright, such damages would be too remote. 
 
 The court held that the objection was not well founded; 
 that the nervous shqck was to he considered as a bodily in- 
 jury, and that if such bodily injury was a natural conse- 
 
g 96 MENTAL SUFFERING. 180 
 
 quence of the fright, it was an element of damage, for 
 which a recovery might be had. 
 
 Referring to the contention of the defendant the court 
 said: "It is admitted that as the negligence caused 
 fright, if the fright contemporaneously caused physical 
 injury, the damage would not be too remote. The. propo- 
 sition insisted upon is one of time only. The proposition 
 is that, although, if an act of negligence produces such an 
 effect upon particular structures of the body as at the 
 moment to afford palpable evidence of physical injury, 
 the relation of proximate cause and effect exists between 
 such negligence and injury, yet such relation cannot, in 
 law in the case of a similar act producing upon the same 
 structures an effect which at a subsequent time, say that 
 a week, a fortnight, or a month, must result without any 
 intervening cause in the same physical injury. As well 
 might it be said that a death caused by poison is not to 
 be attributed to the person who administered it, because 
 the mortal effect is not produced contemporaneously with 
 its administration. " 
 
 At the close of the opinion. Lord Chief Baron Palles 
 says: " 1 n conclusion, lam of the opinion that as the 
 relation between fright and injury to the nerve and brain 
 structures of the body is a matter which depends entirely 
 upon scientific and medi'cal testimony, it is impossible 
 for any court to lay down as a matter of law that if negli- 
 gence caused fright, and such fright so in turn affects 
 such structures as to cause injury to health, such injury 
 cannot be a consequence which, in the ordinary course of 
 things, would flow from the negligence, unless such in- 
 jury accompanied such negligence in point of time.'" 
 
 This fact must be kept in mind, that where there is no 
 physical injury at the time of the accident, and where no • 
 physiological effect from the fright and nervous shock ap- 
 pears at any subsequent time, but there is only a possible 
 and temporal y mental apprehension or disturbance, which 
 soon passes away, no damages can be recovered.' But if 
 the fright and nervous shock caused by the negligent act 
 is the natural and proximate result thereof, as it appears 
 in its subsequent effect upon the person, then damages 
 
 1 This opinion is approved by Mr. Negligence, vol. 1, pp. 77-81. 
 
 Sedgwick in his Treatise on Damages, » Post, chapter 19," on " Mental Suf- 
 
 (8 ed ) Sec. 860, and by Mr. Seven in fering Alone." 
 his recent edition of his Work on 
 
•81 MENTAL SUFFERING. j 96 
 
 may be had and recovered for all the consequences of 
 such negligence. This question turns upon what is the 
 proximate cause of the physical injury, resulting from or 
 caused by the fright.. If the negligence caused the fright, 
 and the fright causes the physical injury as a reasonable 
 and natural consequence, then the negligence is the proxi- 
 mate cause of the physical injnry, occasioned by the fright, 
 unless another cause, not incident to, but independent of it, 
 is shoton to have intervened between it and the result.^ 
 
 In Kear v. Garrison, 7 O. C. D., 515, an action was 
 brought to recover damages for selling intoxicating liq- 
 uors to the husband of plaintiff. One of the injuries 
 claimed to have been sustained was the nervousness cre- 
 ated by the abuse which the husband caused to his wife. 
 This was objected to because nervousness is not such a 
 physical or personal injury as to be the basis of an action. 
 In reply the court said: " Now nervousness, as I said a 
 moment ago (to throw this woman into a nervous condi- 
 tion, and to make her sick from that) , is a physical injury 
 and is recognized by this authority (21 Ohio St., 191) ; it 
 arises from physical injury to the person or health." 
 
 In Milwaukee and St. Paul R. Co. v. Kellogg, 94 U. S., 
 469, the court said: "The primary cause may be the 
 proximate cause of a disaster though it operate through 
 successive instruments, as an article at the end of a chain 
 may be moved by force applied at the other end, that 
 force being the proximate cause of the movement; or as 
 in the oft cited case of the squib thrown in the market 
 place. Scott v. Shepherd, 2 W. BL, 892. The question 
 always is, was there an unbroken connection between the 
 wrongful act and the injury — a continuous operation ? 
 Did the facts constitute a continuous succession of 
 events, so linked together as to make a natural whole, or 
 was there some new and independent cause between the 
 wrong and the injury ? " 
 
 In Harrison v. Berkley, 1 Stroble L. 525, it appears that. 
 an action was brought to recover damages against a shop 
 keeper for unlawfully selling whisky to a slave by means 
 
 1 Harrison v. Berkley, 1 Stroble, ^,., Rep., 848; Mack. v. Railway Co., 52 S. 
 
 525, 47 Am. Dec, 578 ; Purcell v. Rail- Car., 323, 40 L. R. A. 679; Milwaukee & 
 
 way Co., 48 Minn., 134. 16 L. R. A., St. Paul R. Co. v. Kellogg, 94 U. S. 469 ; 
 
 203; Schumaker v. Railway Co., 46 Mentzer v. Telegraph Co., 98 Iowa, 
 
 Minn. 89, U L. R. A., 259 ; Haverly v. 752, 28 L. R. A., 76; Kear v. Garrison, 
 
 Railway Co., 135 Pa. St., 50, 20 Am. St. 7 O. C. D., 515, 13 O. C. C. R., 447. 
 
g 96 MENTAL SUFFERING. r82 
 
 of which he became intoxicated and died. The court 
 said: " it is therefore required that the consequences 
 to be answered for should be natural as well as proxi- 
 mate. Ward V. Weeks, 7 Bing., 211;^ I^elly v. Partington, 
 5 Barn. & Ad., 645. By this I understand not that they, 
 should be such as upon calculation of chances would be 
 found likely to occur, nor such as extreme views might 
 anticipate, but only that they should be such as have ac- 
 tually ensued one from' another, without the concurrence 
 of any such extraordinary conjuncture of circumstances 
 or the intervention of any such extraordinary supposition 
 as that the usual course of nature should seem to have 
 departed from. * * * The defendant has, however, 
 further insisted that if the drinking and intoxication 
 were the proximate and natural consequences of his act, 
 the exposure and death were not; but that the death 
 resulted mainly from the exposure, and not from the 
 intoxication only. It may well be said (speaking in the 
 language of every day life which attempts no philosophi- 
 cal analysis) that the exposure was the immediate effect 
 of the intoxication and that the two produced the death. 
 Thus without any unconnected influence to be perceived, 
 the death has come from the intoxicatitm which the 
 defendant's act occasioned. The defendant cannot com- 
 plain that an agent which his own act naturally brought 
 into operation has occurred to produce the result." 
 
 In Schumaker v. Railway Co., 46 Minn., 89, 12 L. R. 
 A., 257, it appeared that the plaintiff had been taken by 
 the defendant to a point on its road to repair a wrecked 
 caboose, nine miles from any shelter or food. That it 
 was extremely cold weather. That the defendant left 
 the plaintiff there and failed to return or furnish him any 
 safe place for shelter, and he was obliged to walk nine 
 miles in the cold at night time. That he was not pre- 
 pared with sufficient clothing for the exposure, and that 
 from the exposure he became sick and impaired in 
 health. The court held : That the direct or proximate 
 consequences of a wrongful act are those which occur 
 without any intervening cause, and where an efficient 
 adequate cause for the injuries has been found, it must 
 be considered as the true cause, unless another, not 
 incident to it, but independent of it, is shown to have 
 intervened. That the question as to what is the direct 
 
• 83 MENTAL SUFFERING. § 96 
 
 or proximate cause of an injury, is ordinarily, not one of 
 science or of legal knowledge, but of fact, for a jury to 
 determine in view of the accompanying circumstances. 
 
 In Haverly v. Railway Co., 135 Pa. St., 50, 20 Am. St. 
 Rep., 848, the court approved the following rule: The 
 test by which the line is to be drawn between proximate 
 and remote cause, in reference to liability for the conse- 
 quences of negligence, is whether or not the facts consti- 
 tute a continuous succession of events, so linked together 
 that they become a natural, whole, or whether the chain of 
 events is so broken that they become independent, and 
 the final result cannot be said to be the natural and prob- 
 able consequence of the negligence. In the first instance 
 liability attaches; in the latter it does not. 
 
 The liability then is made to rest and turn upon the sole 
 question of proximate cause, and whether the weakness 
 and nervous manifestations and results can be traced to 
 and were produced by the accident or injury, whatever 
 may be its character. If physiological results follow as 
 the result of such shock and injury, then the party liable 
 must respond for the damages suffered and sustained. 
 You may twist or turn the matter as much as you please, 
 if such be the result there is no escape from the con- 
 clusion. A person aflicted with insomnia, or any other 
 of the many forms of nervous diseases, is often worse 
 incapacitated than when he has an acute trouble. The 
 pleasure of living is partially destroyed. That such a 
 person suffers goes without argument or refutation. His 
 body is a home for the prey of other diseases. If all 
 these troubles are caused by the injury sustained, then 
 the party responsible therefor should be liable for the 
 consequences arising therefrom — as much so as if the 
 injury had been a lost arm, or member of the body or 
 the impairment of the mind or reason. 
 
 Every physical infirmity must have a cause. If a per- 
 son was strong and healthy before the accident, and is 
 now subject to nervous troubles and afflictions, they must 
 be due to some cause. If they are the result of such 
 accident, then it follows as a natural and logical conclusion 
 that tbey were produced by such accident. Immediate 
 manifestations need not appear, if the nervous troubles 
 do manifest themselves and can be traced to this proxi- 
 mate cause. 
 
Sec. 
 
 Sec 
 
 97. Damages for Mental Suffering 
 
 100. 
 
 for Humiliation, etc., without 
 
 101. 
 
 Physical Injury. 
 
 102. 
 
 98. Insults to Woman. 
 
 103. 
 
 99. Basis of recovery. 
 
 104. 
 
 97 MENTAL SUFFERING. 184 
 
 .CHAPTER X. 
 
 MENTAL SUFFERING CONTINUED. 
 
 Servants Duty of. 
 Discrimination Between Races. 
 Measure of Damage for Insult. 
 Proof of Damage lor Insult. 
 Elements of Damages forlnsult. 
 
 § 97. Damages for Mental Suffering for Humilia- 
 tion, Insult, and Indignity without Physical Injury. 
 
 There is a class of injuries where damages for mental 
 suffering are recoverable although there is no physical 
 injury inflicted ; and although, in some cases, no physio- 
 logical effect follows as the consequence of the wrong 
 done. It grows out of and depends upon a personal wrong 
 done to the person or in violation of some inalienable or 
 personal right. No distinction can be made between the 
 forms or kinds of mental suffering caused by a physical 
 injury and mental suffering caused by an insult or wilful 
 wrong, although in the latter case no physical injury is 
 inflicted yet follows as a consequence thereof.' 
 
 It has been the boast of our government, that we do not 
 know nor recognize any one sect, creed, class or race as 
 superior to another, or entitled to greater rights, con- 
 sideration or privileges. This principle has been incor- 
 porated into the organic law of the nation. Every person 
 of this country, however humble he may be, has the 
 inalienable and indisputable right to receive and demand 
 the same treatment, privilege and protection, in all pub- 
 lic places, upon all trains of common carriers for hire, 
 and in the enjoyment of the public patronage, that is 
 granted to or enjoyed by any other person under similar 
 conditions and circumstances. 
 
 Every person has a right to recover damages for men- 
 tal suffering caused by any insult, indignity or humilia- 
 tion, done to or put upon him without cause in a public 
 place or in violation of the personal right of such i»erson 
 against his will, whether in the act itself or in the offen- 
 
 1 See opinion of court in Croaker Rep., 504, where this question is dis- 
 V. Railway Co., 36 Wis., 657, 17 Am. cussed with clearness and ability. 
 
185 
 
 MENTAL SUFFERING. 
 
 i 97 
 
 sive manner in which the act is done.' It may be an act 
 of pure negligence, or a wanton or wilful wrong practiced 
 upon such person. In the latter case exemplary damages 
 may be allowable, in addition to the compensatory dam- 
 ages. 
 
 In Smith v. Railway Co., 23 O. S., 10, the plaintiff 
 brought an action to recover damages for being wrong- 
 fully and unlawfully put off from the defendant's train. 
 
 iBlake v. Railway Co , 18 Queen's B. 
 93 ; Quigley v. Railway Co., 5 Saw. 
 (U. b.), 107 ; Boyle v. Case, 9 Saw. (U. 
 S), 386; Louisville, etc. Rd. Co. v. 
 Whitman, 79 Ala., 328; Lunsford v. 
 Deidrick, 86 Ala., 250, 11 Am. St.Rep., 
 37 ; Ward v. Blackwood, 48 Ark., 396 ; 
 Seg[ur V. Barkhamsted, 22 Conn., 290 ; 
 Masters v. Warren, 27 Conn., 29 ; 
 Swift V. Dickerman, 32 Conn., 285; 
 Atlanta, etc., R. Co. v. Keeney, 99 Ga., 
 266, 25 S. E. Rep., 629 ; Head v. Rail- 
 way Co., 79 Ga. 358, 11 Am. St. Rep., 
 434 ; Chicago, etc. Rd. Co. v. Flagg, 
 43 111, 364, 92 Am. Dec, 133; 
 Chicago, etc. Rd. Co. v. William- 
 son, 55 111. 185, 8 Am. Rep., 641; Chi- 
 cago, etc. Rd. Co. V. Chisholm, 79 111. 
 584; Penn., etc. Rd. Co. v. Connell, 
 112 111. 295 ; Adams v. Smith, 58 111. 
 418 ; Lake Erie, etc. Rd. Co. v. Christ- 
 ison, 39 in. App.. 495; Wolf v. 
 Trinkle, 103 Ind., 355 ; Lake Erie, etc. 
 Rd. Co. V. Fix, 88 Ind. 381, 45 Am. 
 Rep., 464 ; Moyer v. Gordon, 113 Ind., 
 282 ; Richmond & Danville R. Co. v. 
 Jefferson, 89 Ga. 554, 17 L. R. A., 571 ; 
 Parkhurst v. Mastellar, 57 Iowa, 474 ; 
 McKinley v. Railway Co., 44 Iowa, 3 14; 
 Prime v. Eastwood, 45 Iowa, 640 ; 
 Shepard v. Railway Co., 77 Iowa, 54 ; 
 Southern Kan. Rd. Co. v. Rice, 38 
 Kan.,398,5Am. St. Rep., 766; Connolly 
 V. Railway Co., 41 La. Ann., 57, 17 Am. 
 St. , Rep. 389 ; Dufort v. Abodie, 23 La. 
 Ann., 280 ; Miller v. Roy, 10 La. Ann., 
 231; Lafitte v. Railway Co., 43 La 
 Ann., 34, 12 L. R. A., 337; Prentiss 
 V. Shaw, 56 Me. 427, 96 Am. Dec. 
 435; Wads worth v. Treat, 43 Me., 
 163 ; Murdock V. Railroad Co., 137 
 Mass., 293; 8 Am. Neg. Cases, 416, 
 note ; Blumhardt v. Rohr, 70 Md., 328 ; 
 Commonwealth v. Power, 7 Mete, 
 596; Smith v. Holcomb, 99 Mass., 
 552; Hastings v. Stetson, 130 Mass., 
 76; Chesley v. Tompsor, 137 Mass., 
 176 ; Mahoney v. Belford, 132 Mass., 
 
 393; Morgan v. Curley, 142 Mass., 
 107; Carsten v. Railroad Co., 44 
 Minn., 454, 47 N. W. Rep., 49; 
 Ross V. Leggett, 61 Mich., 445; 
 Day V. Owen, 5 Mich., 620; Scripps 
 V. Reilly, 38 Mich., 10; Fay v. 
 Swann, 44 Mich., 544; Newman v. 
 Skein, 75 Mich. , 402 ; Welch v. Ware, 
 32 Mich., 77; Johnson v. Disbrow^ 
 47 Mich., 59 ; DeMay v. Roberts, 46 
 Mich., 160; 41 Am. Rep., 154; 
 Barnes v. Campbell, 60 N. H., 27; 
 Dwinelle V. Railway Co., 120 N. Y., 117, 
 17 Am. St. Rep., 611 ; Ford v. Jones, 62 
 Barb. (N. Y,), 484; Hamilton v. Rail- 
 way Co., 53 N. Y., 25; Smith v. 
 Railway Co., 23 O. S., 10 ; Hayes v. 
 Creary, 60 Tex., 445 ; Fordyce v. 
 Manuel, 82 Tex., 527, 18 S W. Rep., 
 657 ; Missouri Pac. R. Co. v. Kaiser, 
 82 Tex., 144, 18 S. W. Rep., 305; 
 Alexander v. Blodgett, 44 Vt., 476; 
 Vinal V. Core, 18 W. Va , 1 ; Stutz v. 
 Railway Co., 73 Wis., 147 ; 9 Am. St. 
 Rep., 769 ; Croaker v. Railway Co , 36 
 Wis., 657 ; 17 Am. , R. 504 ; R obinson v. 
 Superior Rapid Tr. Co., 94 Wis., 345 
 34 L. R. A., 205; Schmitt v. Railway 
 Co., 89 Wis., 195 ; Fenelon v. Butts, 
 63 Wis., 344 ; Paine v. Railway Co., 
 45 Wis., 657 ; Wij<htman v. Railway 
 Co., 73 Wis., 169, 2 L. R. A., 186 ; 
 Grace v. Dempsey, 75 Wis., 323; 
 Nichols V. Brabagon, 94 Wis., 549; 
 Reinke v. Bently, 90 Wis., 469; 
 Draper v. Baker, 61 Wis., 450, 50 Am. 
 R. 143 ; Campbell v. Pullman Palace 
 Car Co., 42 Fed. 484; Pittsburg, etc., 
 Rd. Co. V. Russ, 67 Fed., 662, 14 C. C. 
 A. 612; Railroad Co. v. Brown, 17 
 Wall. 446; Nieto v. Clark, 1 Cliff. 
 (U. S. C. C.) 145; Chamberlain v. 
 Chandler, 3 Mason (U. S.), 242; 
 Pullman Palace Car Co. v. King (U. 
 S.) C. C. A.; 7 Am. Neg. R, 376, Full 
 discussion p. 378. 
 
 In Morgan v. Curley, 142 Mass., 
 107, it was held that in an action for 
 
97 
 
 MENTAL SUFFERING. 
 
 186 
 
 He went aboard the train to ride from Crestline to Mans- 
 field, without buying a ticket. The fare was fifty cents 
 if ^a ticket was bought. On the train the fare charged 
 was eighty cents. The plaintiff tendered the fifty cents, 
 but refused to pay the eighty cents demanded by the 
 conductor. He was put off. The court held that he was 
 entitled to recover compensation in damages for all the 
 natural, necessary and probable injuries resulting from 
 the wrongful act, and that injury to the feelings was a 
 proper subject for consideration by the jury. The court 
 said: "That physical pain caused by an act of trespass 
 
 ger may recover for his time, incon- 
 venience, the necessary expenses to 
 which he is subjected, and if treated 
 with violence or in an insulting 
 manner, for the injuries to his per- 
 son and feelings. If the expulsion 
 be malicious or through negligence 
 which is gross and wanton, then 
 exemplary damages may be awarded. 
 
 See International, etc. Ry. Co. v. 
 Wilkes, 68 Tex. 617, 2 Am. St. Rep., 
 515, where it is held that damages 
 may be recovered for mortification, 
 pain of body and mind, loss of time 
 and medical expenses. 
 
 In Richmond & Danville R. Co. v 
 Jefferson, 89 Ga. 554, 17 L. R. A., 571, 
 it appeared that a colored person was 
 a passenger upon defendant's train. 
 Two intoxicated men came into the 
 car where he was sitting and where 
 he had a right to be, and where 
 he was conducting himself in a proper 
 manner. During the course of the 
 journey he was insulted, assaulted 
 and beaten. He was cursed and 
 abused by two drunken passengers. 
 The conductor was appealed to and 
 refused to interfere. The plaintiff 
 was made to dance and to sing. He 
 was subjected to many indignities. 
 The plaintiff recovered one thousand 
 dollars, which was aflSrmed. 
 
 The court said : " Under the facts 
 the question presented is a new one 
 in this state From Hutchinson on 
 Carriers, Sec. 595, we have: 'The 
 passenger is entitled not only to 
 every precaution which can be used 
 for his personal safety by the carrier, 
 but also to respectful treatment from 
 him and his servants. From the 
 moment the relation commences, as 
 
 damages for assault and battery in 
 unlawfully arresting the plaintiff, he 
 was entitled to recover compensa- 
 tion for the indignity suffered by 
 him. 
 
 - In Draper v. Baker, 61 Wis., 450, 
 50 Am. R. 143, an action was brought 
 for assault upon a woman for spit- 
 ting in her face, and she recovered 
 one thousand and two hundred 
 dollars. The court held this was 
 not excessive. 
 
 I In Robinson v. Transit Co., 94 Wis., 
 544, 34 L. R. A., 205, the plaintiff 
 paid his fare, and the conductor, hav- 
 ing forgot it, put him off. He 
 brought an action for having been 
 unlawfully and with force ejected 
 from the car. The court said: 
 " The plaintiff was therefore entitled 
 to compensatory damages. What- 
 ever may be the rule in other states, 
 it is settled in this state that 
 * * * such compensatory damages 
 include not merely the plaintiff's 
 pecuniary loss, but also compensa- 
 tion for mental suffering ; and that 
 in awarding such damages in such a 
 case, no distinction is to be made 
 between other forms of mental suffer- 
 ing and that which . consists in a 
 «ense of wrong or insult," but no 
 exemplary damages are allowable in 
 this state, unless the conduct of the 
 conductor was malicious, and his 
 act was either authorized or ratified 
 by the principal, citing authorities. 
 
 In Southern Kan. Ry. Co. v. Rice, 
 38 Kan., 398, 5 Am. St. Rep. 766, it was 
 held by the court that the rule of 
 damages for wrongful expulsion 
 from a railroad train is that a passen- 
 
187 
 
 MENTAL SUFFERING. 
 
 ?97 
 
 on the person constitutes a legitimate ground for com- 
 pensatory damages no one disputes. And why should 
 not mental suffering as well ? Is it more endurable than 
 physical suffering ? Is it a less probable consequence of 
 a trespass against the person of another ? Is the mind 
 an object of less concern in the judgment of the law than 
 the body ? Is it any less a part of the person ? Is com- 
 pensation in money for mental suffering more difficult to 
 estimate than for physical pain? I can find no good 
 reason for affirming any of these distinctions." 
 
 has been seen, the passenger is in a 
 great measure under the protection 
 of the carrier, even from the violent 
 conduct of other passengers or of 
 strangers who may be temporarily 
 upon his conveyance.' Section 596. 
 ' The carrier's obligation is to carry his 
 passenger safely and properly and to 
 treat him respectfully; and if he in- 
 trusts the performance of their duty 
 to his servants, the law holds him 
 responsible for the manner in which 
 he executes his trust. The law now 
 seems to be well settled that the car- 
 rier is obliged to protect his pas- 
 senger from violence and insult from 
 whatever source arising. He is not 
 regarded as an insurer of his passen- 
 ger's safety against every possible 
 source of danger, but he is bound to 
 use all such reasonable precautions 
 as human judgment and foresight 
 are capable of to make his passen- 
 ger's journey safe and comfortable. 
 He must not only protect his passen- 
 ger against the violence and insults 
 of strangers and co-passengers, but 
 a Jortiori, against the violence and 
 insults ol his own servants.' These 
 men, whose acts are set forth in this 
 record, amused themselves by tor- 
 menting and insulting this plaintiff. 
 It seems that the conductor, signal- 
 ing with a wink, was willing that it 
 should go on. The defendant com- 
 pany forgot — through their represen- 
 tative forgot — that at the time it had 
 this plaintiff's money in its coffers, 
 and was under contract and obliga- 
 tions to carry him safely and comfort- 
 ably. This conductor placed his pas- 
 senger at the mercy of these drunken 
 brutes, for their distraction and occu- 
 pation. It would be strange indeed 
 
 if there were no law to extend pro- 
 tection to passengers under such cir- 
 cumstances. It would follow that the 
 good and pure women of this state 
 have no protection on railroad trains 
 beyond what it suits the conductor 
 to give them, and that they are sub- 
 ject to the insults of any beast whose 
 liquor and lust combine for an 
 assault. There are few conductors 
 who would see a passenger mis- 
 treated ; the law says no conductor 
 shall permit it." 
 
 In Head v. Railway Co., 79 Ga. 358, 
 11 Am. St., 434, an action was brought 
 to recover damages for being ejected 
 from defendant's cars, when he was 
 refused passage, the cars were filled 
 with other passengers and he alleged 
 that he was greatly troubled and in- 
 jured in feelings. The court, by its 
 charge, limited the plaintiff to his 
 actual damages, seven dollars. The 
 judgment was reversed because he 
 was cut off " from the recovery of 
 such damages of every kind as he sus- 
 tained." The court said : " Wound- 
 ing a man's feelings is as much actual 
 damage as breaking his limbs. The 
 difference is that one is internal and 
 the other external ; one mental and 
 the other physical ; in either case, 
 the damage is not measurable with 
 exactness. At common law, compen- 
 satory damages include, upon prin- 
 ciple, and I think upon authority, 
 salve for wounded feelings." 
 
 In Wightman v. Railway Co., 73 
 Wis. 169, 2 I/. R. A., 185, an action was 
 brought for damages for expulsion 
 from a train of defendant. The jury 
 assessed his damages for injury to 
 his feelings at $299.60, which was sus- 
 tained by the Supreme Court. 
 
98 
 
 MBNTAL SUFFERING. 
 
 isa 
 
 §98. Insults to Women. The right to recover damages 
 for mental suffering may arise from an indecent proposal, 
 or improper conduct to a woman, while riding upon the 
 train of a railway, or in a steamer navigating upon the 
 seas or lakes or elsewhere, when such woman is conduct- 
 ing herself in a proper manner'and is above criticism in 
 her demeanor/ 
 
 In Brown v. Railway Co., 5 Fed., 499, the plaintiff, a 
 colored woman, had bought a first class ticket, and took 
 a seat in the ladies car, where she was conducting herself 
 in a proper manner. She was neatly clothed. The con- 
 
 ^Wolf V. Frinkle, 103 Ind., 355, 3 
 N. E. Rep., 110 ; Georgia etc., Rd. 
 Co. V. Eskew, 86 Ga., 641, 22 Am. St. 
 Rep., 497 ; Croaker v. Railway Co., 36 
 Wis., 657, 17 Am.Rep., 504; Brown v. 
 Railway Co., 5 Fed. Rep., 499 ; Leach 
 V. Leach, 11 Tex, Civ. App., 399, 33 S. 
 W. Rep., 703 ; Ramsden v. Railway 
 Co., 104 Mass., 117, 6 Am. Rep., 117. 
 2 Wood Railway Law, Sec. 315 ; 
 Nieto V. Clark, 1 Cliff (U. S.), 145; 
 Chamberlain v. Clark, 3 Mason, 242; 
 Commonwealth v. Power, 3 Mete, 
 596; Johnson v. Disbrow, 47 Mich., 
 59. 
 
 In Louisville & N. R. Co. v. Bal- 
 lard, 88 Ky., 159, 2 L. R. A., 694, the 
 plaintiff was a female school teacher, 
 and was carried by the railroad train 
 beyond her station and was put off 
 between stations. In doing so, the 
 employes were insulting and inde- 
 corous in words, tone and manner. 
 It was held that she was entitled to 
 recover punitive damages, and a ver- 
 dict of $3,005 was sustained. 
 
 In Wolf v. Trinkle, 103 Ind., 35.5, it 
 appeared that the defendant went to 
 the house of the plaintiff, Jeremiah 
 Trinkle, who was away from home in 
 the evening about eight o'clock and 
 found his wife alone in bed with her 
 three small children, that he went to 
 the bed and took improper liberties 
 with her. He remained nearly one- 
 half hour, but being repelled, he 
 shortly left the house. The fright to 
 herwap such that she got up and re- 
 mained up the balance of the night. 
 The court said : "It is well settled 
 that in the case of a character of this 
 damages may be awarded for physi- 
 cal suffering, for mental trouble as 
 
 anguish of mind, sense of shame or 
 humiliation, loss of honor and good 
 name, all of which are considered 
 compensatory, and not exemplary or 
 punitive damages." Citing Fisher v. 
 Hamilton, 49 Ind., 341, and Lake Erie 
 & W. Ry. Co. V. Fix, 88 Ind., 381. 
 
 In Ramsden v. Railway Co., 104 
 Mass., 117, the plaintiff (a female) 
 was a passenger upon the defendant's 
 railroad and upon being called upon 
 by the conductor for her fare, paid it 
 to him. Soon after the conductor 
 called upon her again for her fare 
 and she declined to pay him. There- 
 upon the conductor used very abusive 
 and insulting language to her and 
 demanded that she give to him her 
 parasol to keep as security for her 
 fare, which she refused to do; and 
 the conductor thereupon took hold 
 of her parasol and forcibly wrenched 
 It from her possession. The court 
 held that the company was liable for 
 an assault. 
 
 In Tex. & Pac. Ry. Co. v. Jones, 39 S. 
 W. R., 124, 1 Am. Neg. Rep., 531, it 
 appeared that the appellee went into 
 the station of the railWad about 
 forty-five minutes before train time 
 with some bundles which she placed 
 on a seat and sat down by them. She 
 intended to purchase a ticket and 
 become a passenger on the appel- 
 lant's train; she went across the 
 street to see a friend and returned in 
 about fifteen minutes. She found 
 her bundles thrown out of the wait- 
 ing room and she inquired of the 
 station agent's- wife where her bun- 
 dles were and was told by the agent's 
 wife that she did not know and did 
 not care, using abusive language. 
 
489 MENTAL SUFFERING. ? 98 
 
 ductor ejected her from the car and compelled her to 
 ride in the smoliing car, on the sole ground that her 
 reputation for chastity was not good. (She brought suit 
 in the United States court and recovered a judgment of 
 $5,000 before a jury composed entirely of white men. 
 
 Justice Hammond in his charge to the jury said : "A 
 female passenger traveling alone is entitled to ride in the 
 ladies car, notwithstanding an alleged want of chastity, 
 if her behavior is lady-like and proper, and she cannot be 
 compelled to accept a seat in another car offensive to her 
 because of smoking and bad ventilation; and this whether 
 she be white or colored. A carrier of passengers may 
 rightfully exclude a passenger whose conduct at the time 
 is annoying, or whose reputation for misbehavior is so 
 notoriously bad that it furnishes a reasonable ground that 
 the person will be offensive to other persons; but the 
 social penalties of exclusion of unchaste women from 
 hotels, theaters and other public places, cannot be im- 
 ported into the law of common carriers; nor can the 
 carrier classify his passengers according to their respec- 
 tive reputations for chastity, whether they be men or 
 women. " A motion for a new trial was made and argued, 
 and justice Hammond reviews the question elaborately 
 and affirmed his charge in 7 Fed., p. 51. 
 
 In the case of Croaker v. Railway Co., 36 Wis., 657, 17 
 Am. Rep., 504, a young lady was a passenger upon the 
 defendant's road, and for a portion of the way was the 
 
 The jury found that appellant was her there, to protect her in such 
 
 charged by the station agent's wife right, while there, is as clear in one 
 
 withbeingindecent, with having un- case as in the other." 
 
 dressed before men and with having In Leach v. Leach, 11 Tex. App., 
 
 stolen her scissors, and rendered a 699, 3c! S. W., 703, it was held that a 
 
 verdict for $^50. virtuous woman coulH recover dam- 
 
 The court said : "On her right to ages for mental suffering consequent 
 
 recover damages for mental suffer- upon an unwarranted proposal for 
 
 ing," for the insult and humiliation, sexual intercourse. 
 
 " we think it was the duty of the ap- In Fay v. Swan, 44 Mich., 544, an 
 
 pellant's station agent to protect ap- action was brought and judgment 
 
 pellee from insult and abuse from all obtained (or damages for an assault 
 
 persons while she was at its station by the defendant upon the plaintiff 
 
 waiting to become a passenger on its with intent to ravish her. Theatteu.pt 
 
 train, whether she received physical was unsuccessful. The court sus- 
 
 injuries or did not. * * * The tained the judgnient holding that a 
 
 right of a lady passenger to be secure wrongdoer is liable for the natural 
 
 from personal insult and abuse in the results of his trespass, and that the 
 
 waiting room of a railroad station jury in estimating damages may take 
 
 and the correlative obligation of the into account the disgrace as well as 
 
 railroad company, who has invited the physical suffering caused by it. 
 
i 98 MENTAL SUFFERING. 190 
 
 only passenger in the car; and while pursuing her journey 
 the conductor of the train forcibly kissed her. Jn rela- 
 tion to the contract between railroad companies and their 
 passengers, and the duty imposed upon them, the ccfurt 
 adopts the rule laid down by Justice Story in Chamber- 
 lain V. Chandler, 3 Mason (U. S.), 242, where he uses this 
 comprehensive and appropriate language : "It is a stipu- 
 lation not for toleration merely, but for respectful treat- 
 ment, for that decency of demeanor which constitutes the 
 charm of social life, for that attention which mitigates 
 evils without reluctance, and that promptitude which 
 administers aid to distress. 
 
 "In respect to females it proceeds yet further. 'It 
 includes an implied stipulation against general obscenity, 
 that immodesty of approach which borders on lascivious- 
 ness and against that wanton' disregard of feelings which 
 aggrevates every evil. ' " ^ 
 
 The court used this forcible language in relation to 
 the liability of the defendant in this case: "Every 
 woman has a right to assume that a passenger car is not 
 a brothel; that when she travels in it, she, will meet 
 nothing, see nothing, hear nothing, to wound her delicacy 
 or insult her womanhood." 
 
 In this case the court held .that she was entitled to 
 recover full compensatory damages and was not limited 
 to her pecuniary loss, and "all mental suffering directly 
 consequent upon tort * * * is ground for compensa- 
 tory damages in action for the tort." 
 
 The trial court, on the question of damages, charged 
 the jury, that "if the plaintiff, while a passenger was 
 abused, insulted or ill-treated by the conductor of the 
 train, defendant was liable to her for such injury as 
 might be found from the evidence to have been inflicted; 
 that the measure of damages would be such compensa- 
 tion as the jury might see fit to award for the injury 
 sustained, including injury to the feelings, the elements 
 of which are such insult, indignity, contumely and the 
 like as she may have suffered ; that they could not give 
 anything by way of example or punishment or what is 
 
 1 Subsequently Judge Story states eludes an implied stipulation that 
 
 the nile in N.eto v Clark 1 CliflF (U. they shall be protected against ob- 
 
 b.), 145, in the following language: scene conduct, lascivious behavior 
 
 In respect to female passengers, the and every immodest and libidinous 
 
 contract proceeds yet further, and in- approach." 
 
< 9 ' MENTAL SUFFERING. g 98 
 
 termed vindictive damages, as they might do if they had 
 been the party committing the assault before them." 
 
 The court approves this charge, saying: "The re- 
 spondent appears to be of respectable rank in life and of 
 sufficient culture to qualify her for teaching in public 
 schools. In the painful trial of character and temper of 
 the scene which culminated in the assault, in her action 
 and demeanor following upon it, in the interview intruded 
 upon hrr by the appellant, and in the embarrassment of 
 her examination upon the trial, she appears to have acted 
 with great propriety, free from all exaggeration and 
 affectation. She appears in the record to be a person 
 who would feel such a wrong keenly. She was entitled to 
 liberal damages for her terror and anxiety, her outraged 
 feelings and insulted virtue, for all her mental humilia- 
 tion and suffering. We cannot say that the damages are 
 excessive. * * * Who can be found to say that such 
 an amount would be in excess of compensation to his own 
 or to his neighbor's wife, sister or daughter? Hewlett 
 v. Crutchley, 5 Taunt, 276.'" 
 
 Proof of Amount Unnecessary. Where an action 
 was brought to recover damages by the husband against 
 the defendant for an unlawful assault upon his wife and 
 compelling her to have unlawful sexual intercourse with 
 him, it was held that he was entitled to recover damages" 
 for his injured feelings, and no evidence as to the amount 
 thereof in dollars and cents need be proved on the trial. ^ 
 
 Damages for mental suffering may be recovered from 
 an attempt to do unlawfully and m ithout cause or provo- 
 
 iCollins V. Tex. & Pac. Ry. Co., 15, In Louisville & H. R. Co v. Bal- 
 
 39 S. W. Rep., 643, 15 Tex. Civ. App., lard, 88 Ky. 159 ;'3 S. W. Rep., 530, it 
 
 169^. where the court held that a rail- is held that a railroad company is- 
 
 road company which hires its trains bound to protect female passengers- 
 
 to an association for an excursion, from obscenity, immodest conduct 
 
 the association selling the tickets to or wanton approach, but not from 
 
 the passengers, is bound to protect indecent or impolite conduct, and 
 
 its lady passengers from insult, and for failure to provide such protec- 
 
 abuse, obscenity and wanton ap- tion it, is liable for exemplary dam- 
 
 proach, and is liable in damages if ages. 
 
 it fails so to protect. 'Johnson v. Disbrow, 47 Mich., 69. 
 
i 98 
 
 MENTAL SUFFERING. 
 
 192 
 
 cation, some violence to the person ;' or from the use of 
 vulgar and profane language.' 
 
 1 Dwinnelle v. Railway Co., 120 N. 
 Y., 117, 17 Am. St. Rep., 611. 
 
 Ill Dwindle v.Railway Co., 120N.Y., 
 117, 17 Am. St. Rep., 611, it appeared 
 that the plaintiff had purchased 
 tickets for himself and wife at 
 Geneva to New York. He also pur- 
 chased tickets from the porter of a 
 sleeping car which entitled them to a 
 section in the latter. At Utica the 
 passengers were transferred on ac- 
 count of a washout. The porter 
 took the hand baggage of the plain- 
 tiff and his wife and conducted them 
 to the train they were to take. They 
 were taken into an ordinary car, as 
 there was no vacant seat in the 
 sleeping car. The plaintiff asked 
 the porter for his sleeping car 
 tickets, which he refused to give up 
 or to give any check or ticket to be 
 shown to the conductor on the other 
 side of the washout. In fact the 
 porter insisted that further caring for 
 the plaintiff was none of his busi- 
 ness. The plaintiff, touching his 
 arm slightly, said : ~~ " You must not 
 leave me without some satisfaction 
 in this business." The porter an- 
 awered : " Take your hand off from 
 me or I will hit 5'ou," and at the 
 same time struck Ihe plaintiff a vio- 
 lent blow on the face, knocking him 
 down, and rendering him un- 
 conscious. 
 
 All this took place in the yard of 
 the defendant at Utica. An action 
 ■was brought to recover damages for 
 an assanlt upon the plaintiff by the 
 porter. The defendant moved to dis- 
 miss the action on the ground that 
 the act of the porter was not within 
 the scope of his authority, nor done 
 ■while engaged in the performance of 
 any duty which the defendant owed 
 to the plaintiff; and the court 
 granted the motion. The judgment 
 was reversed. The court held that 
 among the obligations which a car- 
 rier assumes is that of protecting its 
 passengers against any injury from 
 the negligence or wilful misconduct 
 of its servants and of their fellow 
 passengers and strangers, so far as it 
 is practicable, and to provi'le them 
 with the usual accommodations and 
 
 any information and facilities neces- 
 sary for the full performance of the 
 contract on the part of the carriers 
 and that a porter of a sleeping or 
 drawing room car is a servant of the 
 railroad company, for whose miscon- 
 duct it is answerable. 
 
 The authorities on this question 
 might be multiplied to almost any 
 extent for they are legion and are 
 readily found in the reports and di- 
 gests. But see McKinley v. Chicago & 
 N. W. Rd. Co., 44 Iowa, 314; Louis- 
 ville, etc., Rd. Co. V. Falvey, 104 Ind., 
 409; McGinuis v. Railway Co., 21 Mo. 
 App., 399; Claybrook v. Railway Co., 
 19 Mo. App., 432; Delaware, etc., R. 
 Co. V. Walsh. 47 N. J. L., 548; Geor- 
 gia, etc., Rd. Co. v. Eskew, 86 Ga., 
 641, 22 Am. St. Rep. 497 ; Carstens v. 
 Railway Co., 44 Minn., 454 ; 20 Am. St. 
 Rep. 589 ; Southern Kan. Rd. Co. v. 
 Rice, 38 Kan., 398, 5 Am. St. Rep., 766; 
 Georgia, etc., Rd. Co v. Dougherty, 
 86 Ga., 744, 22 Am. St., 499; Tex. & 
 Pac. Rd. Co. v. Cary, 52 Tex, 112; 
 Indianapolis, etc., Rd. Co. v. Hower- 
 ton, 127 Ind., 236 ; Hufford v. Railway 
 Co., 64 Mich. 631, 8 Am. St. Rep., 859. 
 
 2 St. Louis, etc. Rd. Co. v. Mackie, 
 71 Tex 491, 1 L. R. A. 667, 10 Am. St. 
 Rep., 760; Texas & Pac. Ry. Co. v. 
 Jones, Tex. Civ. App., 1 Am, Neg. 
 Rep., 531 ; Collins v. Railway Co., 
 15 Tex. Civ. App., 169, 2 Am. Neg. 
 Rep., 241. 
 
 In St. Louis Ark. & Tex. R. Co. v. 
 Mackie, 71 Tex., 491, 1 L. R. A., 677, 
 an action was brought to recover 
 damages for wrongfully compelling 
 plaintiff and his family to ride in a 
 second class car. The plaintiff desir- 
 ing to go from Athens, Texas, to 
 some place in North Carolina, pur- 
 chased through tickets to Nashville, 
 Tenn., paying the price charged for 
 first class tickets. After the train had 
 gone only a few miles, the conductor 
 required the plaintiff and his family 
 to leave the first class car and take 
 seats in a second class car. While no 
 force was used by the conductor in 
 bringing this about, it was done 
 under circumstances calculated to 
 humiliate and mortify the plaintiff 
 and his wife, who, from the record. 
 
'93 MENTAL SUFFERING. 
 
 a 99-100 
 
 §99. Basis of Recovery. Damages for mental suffer- 
 ing- may be based upon threats, duress or exhibition of 
 superior and greater physical force.' 
 
 But a person is not entitled to recover any compensa- 
 tion for mere rudeness or incivility practiced upon him 
 by the physician of the defendant in attending and in 
 examining him for the injuries complained of ; ' or where 
 a person is laughed at in a fall from the train.' 
 
 § 100. Servants Duty of. The right to recover dam- 
 ages for mental suffering may arise from the wanton or 
 unlawful exercise of authority, or from failure to exer- 
 cise authority, by a person clothed with quasi police pow- 
 er, whose duty it is not only to serve his master, but 
 also, in serving his master, to serve the public by acts of 
 kindness and courtesy, and to protect the public, "rich and 
 poor, intelligent or ignorant alike, while in the discharge 
 of his duty, from the assaults, insults or indignities of 
 strangers or co- passengers of a railway train or steam- 
 boat.* 
 
 In 2 Wood on Railway Law, Sec. 315, p. 1194, the rule 
 is laid down as follows : "A person who employs serv- 
 
 appear to be people of refinement i Drake v. Reilly, 93 Pp. St., 492; 
 
 and intelligence. Stutts v. Railway Co., 73 Wis., 147, 9 
 
 The coaches in which they rode Am. St. Rep., 769. 
 
 from Athens, Texas, to Nashville, In Drake v. Reilly, 93 Pa. St., 492, a 
 
 Tenn , were uncomfortable, loul with boy of about nine years was kept in 
 
 smoke, dirt, and filth, and filled with the caboose of a freight train against 
 
 negroes and coarse whites, who his will and carried several miles 
 
 smoked tobacco, drank whiskey and away from his home, when he was 
 
 used violent, profane, and obscene put off. He ran all the way home in 
 
 language in the presence of plaintiff a drizzling rain. He contracted a 
 
 and his family, by reason of which fever, which together with the fright 
 
 they were greatly humiliated and and nervous shock, rendered him a 
 
 injured mentally and physically. No cripple for life, for which he recov- 
 
 effort was made by the conductor to ered damages in an action therefor, 
 
 restrain the acts of the other passen- ^Goodhart v. Railway Co., 177 Pa. 
 
 gers. The smoke caused the plain- St., 1. 
 
 tiff's wife to become sick. 'Campbell v. Alston (Tex. Civ. 
 
 The court held that a railroad com- App.), 23 S. W. Rep., 33. 
 
 pany cannot subject passengers, even * Illinois Cent. R. Co v. Minor, 69 
 
 in a second class car, to noxious influ- Miss., 710, 16 L. R. A., 627 ; Richmond 
 
 ences not necessarily or ordinarily & Danville R. Co. v. Jefferson, 89 Ga., 
 
 incident to such travel, such as hear- 554, 17 L. R. A., 571 ; Dwinelle v. 
 
 ing rough, profane language, and Railway Co., 120 N. Y., 117, 17 Am 
 
 witnessing acts of violence and St. Rep. ,611. 
 
 drunkenness, which the company, by In Chicago, etc., R. R. Co. v. Flex- 
 
 the exi=rcise of proper care and due man, 103 111., 546, 42 Am. Rep., 33, a 
 
 regard for the welfare of passengers, brakeman upon a freight train as- 
 
 could have prevented. saulted the plaintiff, who was a pas- 
 13 
 
J 101 MENTAL SUFFERING. '9* 
 
 ants is bound by the acts of those servants, in the line of 
 their employment, where they are tortious or otherwise, 
 under the maxim qui facit per alium facit perse; and 
 this rule of liability applies with increased force, where, 
 as in the case of railway companies, the operation of their 
 road and the discharge of all its subsidiary functions 
 must be performed by employes. 
 
 "It is among the implied provisions of the contract 
 between a passenger and a railway company, that the 
 latter has employed suitable servants to run its trains, 
 and that passengers shall receive proper treatment from 
 them; and a violation of this implied duty or contract, is 
 actionable in favor of the person injured by its breach, 
 although the act of the servant was wilful and malicious, 
 as for a malicious assault upon a passenger, committed 
 by any of the train hands, whether within the line of his 
 ' employment or not. The duty of the carrier towards a 
 passenger is contractual and among other implied obliga- 
 tions is that of protecting a passenger from insults or as- 
 saults of other passengers, or by their awn servants.'''' 
 
 § 101. Duty Towards Sick Persons. This right to re- 
 cover damages for mental suffering may also arise from 
 the neglect or carelessness of the servant of a common 
 carrier to care for and protect any sick passenger, or 
 
 senger, because he accused him of agents or servants of the appellant 
 
 stealing his watch ; aud the company in charge of the train. The company 
 
 was held liible. The court stated placed these men in charge ot the 
 
 the obligation and rule of liability in train. It alone had the power of re- 
 
 the following language: "The law moval, and justice demands that it 
 
 requires the appellant, as a common should be hefd responsible lor their 
 
 carrier, to use all reasonable exer- wrongful acts towards passengers 
 
 tion to protect its passengers from in- while in charge of the train. Any 
 
 sultoriujury fromfellowservautswho other rule miglit place the travelling 
 
 might be on the train; and if the public at the mercy of any reckless 
 
 agents of the appellant in charge of employe, a railroad company might 
 
 the train should fail to use reasona- see fit to employ, and we are not in- 
 
 ble diligence to protect its passen- clined to establish a precedent which 
 
 gers from injuries from strangers will impair the personal security of 
 
 while on board the train, the com- a passenger." 
 
 pany would be liable. So, too, the See Wood Law of Master aud Ser- 
 
 contract which existed between the vant. Sec. 648, et seq.; Day v. Owen, 
 
 appellants as a common carrier and 5 Mich., 520; Nieto v. Clark, 1 Cliff 
 
 the appellee as a passenger, was a (U. S. C. C), 145; Chamberlain y. 
 
 guaranty on behalf of the carrier Chandler, 3 Mason (U. S. C.C), 242 
 
 that the appellee should be protected Commonwealth v. Power, 7 Mete; 
 
 against personal injury from the 601 ; Goddard v. G T. Ry. 57 Me. 202, 
 
• 95 MENTAL, SUFFERING. § 102 
 
 from leaving such sick passenger on the public street in 
 a helpless condition.' 
 
 It is hardly necessary to add that common experience, 
 and daily observation teach us that any one of the acts, 
 or conditions, which have been set forth in the authori- 
 ties cited herein, may cause mental pain and suffering; 
 and under certain circumstances serious injury to the 
 health, or may produce sickness or develop disease, or 
 may permanently affect the person in following his trade, 
 business or profession. It needs no argument to prove 
 that it is not necessary that there should be a physical 
 bruise to cause intense mental suffering and anguish. A 
 wrong may be done without personal violence. The full 
 force of a blow may be inflicted without a stroke or a 
 wound may be made without drawing blood. The mental 
 suffering and pain occasioned by a wicked insult or un- 
 lawful assault, or an indecent proposal to a pure woman, 
 will be as keen and intense as any direct physical injury. 
 To deny adequate damages for any such mental suffer- 
 ing, is to put a premium on lawlessness, a stigma upon 
 justice, and a discount upon common decency and ordi- 
 nary intelligence. 
 
 § 102. Discrimination Between Races. The spirit 
 of discovery and of conquest has been a prominent 
 characteristic of the Caucasian race. This has been 
 
 \Conolly V. Railway Co., 41 La. of his exclusion, excuse the carrier's 
 
 Ann., 57, 17Am. St Rep, 389;Lapleine liability. The court sa\s: "That 
 
 V. Morgan L. & T. R. & St. Co., 40 hia sufferings were severe * » * 
 
 La. Ann. 661, 1 L. R. A., 378. and the humiliation of his position 
 
 In Conolly v. Railway Co., 41, La. was extreme," and that "on the 
 
 Ann., 57, 17 Am. St. Rep. 389, it was whole considering all the circum- 
 
 held that where a passenger on a stances we consider that an award of 
 
 street car, who has been conveyed a fifteen hundred dollars will do 
 
 considerable distance, without volun justice," which was approved on a 
 
 tary misconduct on his part, is sud- rehearing. 
 
 denly stricken with apoplexy, and In Lapleine v. Railway & Steam- 
 thus rendered helpless and speech- boat Co., 40 La. Ann.. 661, the court 
 less and subject to severe fits of vomit- say: "The duty of care and of 
 ing, his removal from the car by the abstaining from injuring another is 
 driver into the road way of the street, due to the weak, the sick, the infirm, 
 and leaving him there on an incle- equally with the healthy and strong; 
 ment day, without the slightest and when the duty is violated, the 
 attempt at that time or afterwards to measure of damages is the injury 
 have him taken care of, is a gross inflicted, even though that injury 
 violation of duty for which the might have been aggravated, or 
 carrier is liable in damages, nor will might not have happened at all but 
 the mistaken supposition of the for the peculiar physical condition of 
 driver that he was drunk at the time the person injured." 
 
? 102 MENTAL SUFFERING. 196 
 
 particularly true of the Anglo-Saxon. It has led him to 
 explore unknown continents and to navigate the seas 
 'and to discover the islands thereof. Not satisfied 
 with the discovery, he was led by this same spirit to dis- 
 possess and supplant the races found in occupation of such 
 new lands, and by the use of force if necessary. It led 
 him to claim such lands as absolute owner in the name of 
 his sovereign, by the so called right of discovery. 
 
 This spirit of conquest recognized two elements of 
 power which may have been practical in former centuries, 
 but which are not accepted now, to-wit : "The Divine 
 Right of Kings," and the superiority of the white race 
 or the right of property in the black race. The right to 
 assert ownership of occupied lands by discovery was a 
 flctioi;, wrong in theory and in principle. The right to 
 assert ownership and property in the black race and to 
 reap and enjoy the fruits of his unrequited labor was 
 also wrong for the same reasons. 
 
 Our forefathers rejected the theory of the "Divine 
 Right of Kings " when they established this nation, and 
 adopted the principle of the equality of man and inviola- 
 bility of property, except by due process of law. This 
 principle was incorporated into the constitution of the 
 United States and into the constitutions of the several 
 states. 
 
 Human slavery, although sanctioned at the time of the 
 formation of this nation by common practice and commpn 
 consent, has been destroyed, almost within the present 
 generation, by the force of the moral and intellectual 
 influences of modern civilization, or through the instru- 
 mentality of the sword and by means of a great sacrifice 
 of life and property, it wilJ still require patience, 
 vigilance, education and religion to eradicateevils result- 
 ant from slavery, particularly in respect to class or 
 racial distinctions. 
 
 In the accomplishment of this purpose constitutions 
 have been changed and laws have been enacted until, 
 if laws fail to secure the result of equal rights to every 
 individual, the failures are due to the fallibilities of human 
 agencies. Every person,, of whatever race or color, who 
 IS a citizen of the United States, is entitled under the 
 constitution and the laws, to equal rights and privileges 
 m public places. "Whenever any person, whose appearance 
 
'97 MENTAL SUFFERING. 
 
 i 102 
 
 is proper and whose conduct is civil, whether white or 
 black, does not receive rights and privileges equal to 
 those shown and extended to others in public places, 
 theaters, or restaurants, or upon any railroad trains or 
 at railway stations, he may recover damages for the 
 injury caused by any such discrimination.' The law 
 recognizes no discrimination against color or race nor 
 grants favor to wealth or social position in public places. 
 
 One of the leading cases upon this subject is that of 
 Ferguson v. Gies, 82 Mich., 35S. The plaintiff was an 
 educated and prominent colored man in the city of De- 
 troit. The defendant was the proprietor of a large and 
 well patronized restaurant. The plaintiff, in company 
 with a colored friend, went into the restaurant and took 
 seats at a prominent table in that part of the restaurant 
 where the public were generally received and waited 
 upon. They ordered a supper. The defendant refused 
 to receive and fill their order, or wait upon them at that 
 table, or in that part of the dining restaurant, solely on 
 the ground of tfieir color. They were told to go into the 
 room adjoining this one in which liquors were sold, where 
 their order would be filled. The plaintifp and his friend 
 wei-e not served. The plaintiff brought an action for 
 damages for the discrimination practiced upon him on 
 account of his color. In the trial court, the defendant, 
 on account of an error in bhe charge, obtained a judg- 
 ment. The plaintiff took the case to the Supreme Court. 
 Justice Morse, who lost an arm in the civil war, wrote 
 the opinion, in which the following forcible language was 
 used : 
 
 "The humane and enlightened judgment of our people 
 has decided, although it cost blood and treasure so to 
 determine, that the negro is a man ; a freeman; a citizen; 
 and is entitled to equal rights before the law with the 
 white man. This decision was a just one. Because it 
 was divinely ordained that the skin of one man should 
 not be as white as that of another furnishes no more 
 
 » Ferguson v. Gies, 82 Mich., 368, People v. Kirip, HON. Y., 418, 1 L. R. 
 
 21 Am. St. Rep., fa^. 9 L. R. A., 589 A., 293; Derry v. Lowry, 6 Phil. (Pa.), 
 
 and note; Railway Co. v. Brown, 17 30; Richmond & Danville R. Co. v. 
 
 Wall., 416: Gray v. Railway Co., 11 Jefferson. 89 Ga. 554, 17 L. R. A., 571, 
 
 Fed. 683; Brown v. Memphis etc. Rd. 52 Am.& Eng.R. R.Cas. 4.S8and note. 
 
 Co. V. Willi ims, 55 111. 85 ; Baylies m. Bryan v. Adler, 97 Wis. 124, 41 h. R A. 
 
 Curry. 128 111. 287 ; Rose v. Railroad 658. 
 Co., 70 Miss., 725, 12 S. Rep., 825; 
 
i 102 MENTAL SUFFERING. 198 
 
 reason that he should have less rights and privileges 
 under the law than if he had been born white, but cross- 
 eyed or otherwise deformed. The law, as I understand 
 it, will never permit a color or misfortune that God has 
 fastened upon him from his birth to be punished therefor 
 by the law unless the misfortune leads to some contagion 
 or criminal act ; nor while he is sane and honest can he 
 have less privileges than his more fortunate brothers. 
 The law is tender rather than harsh towax-ds all infirmity, 
 and if to be born back is a misfortune, then the law 
 should lessen rather than increase the burden of_^the 
 black man's life." 
 
 A conductor of a passenger train has no right to eject 
 a passenger on account of color or race. No regulation 
 of the company will justify such a proceeding or protect 
 him from liability in damage.^ 
 
 But any such person so discriminated against must 
 present a good appearance, be properly clothed and 
 cleanly in person, before he has a right to demand and 
 receive the same accommodations, attention and privileges 
 afforded to the public, or to recover damages for any dis- 
 crimination practiced towards him. A ragged, repulsive 
 and unkempt person, or a drunken, boisterous ai:d quar- 
 
 1 Derry v. Lowry, 6 Phila. (Pa.), 30. ladies car on accountof her color, and 
 In Baylies v. Curry, 128 III. 287, 21 was directed to take a seat in another 
 N. E., 595, it was held that a proprie- car, which was set apart for and mostly 
 tor of a theatre who denies a colored occupied by men, but which she de- 
 person access to his theatre, or to the clined to do, insisting upon her right 
 several circles or grades of seats to be admitted to the ladies car ; and 
 therein, on account of his race or the evidence justifying the conclu- 
 color, is responsible to such colored siou that thebrakeman, in excluding 
 person in damages for the injury. her from that car, did so in a very 
 In Gray V. Railroad Co., 11 Fed., rude manner, and in the presence of 
 683, it appeared that a colored woman several person— Held, a verdict of 
 purchased a first class ticket, but the $200 was not excessive, she being en- 
 company relused to carry her except titled to something for the indignity 
 in the smoking car, in which were and disgrace. 
 
 men only, some of whom were smok- In People v. King, 110 N. Y. 418 the 
 
 iug. She was lady-like in appear- court said : "Both justice and' the 
 
 ance and conduct, and at the time public interest concur in a policy 
 
 was carrying a sick child. Held, that which shall elevate them as individ- 
 
 she was entitled to such compensa- uals and relieve from oppressive or 
 
 tory damages, as would make her degrading discrimination and which 
 
 whole, considering her 1( ss of time shall encourage and cultivate a spirit 
 
 and the inconvenience to which she which shall make them self respect- . 
 
 was put, and the expense of prosecu- ing, contented and loyal citizens, and 
 
 ting the suit. give them a fair chance in the strug- 
 
 H»,^= ^\ ,!r ^8^- \^- ^°- '•,'^'l- «'^ °^ ^''^ weighted, as they are It 
 Hams, 55 111., 185, where a colored best, with so many disadvantages." 
 woman was refused admittance to a 
 
'99 MBNTAL SUFFERING. J 102 
 
 relsome one, whatever his color or nationality, can only 
 expect such consideration as his personal regard and 
 respect for himself show and suggest. If his appear- 
 ance and manners show that he has no respect for him- 
 self, then such person has no ground for complaint if he 
 does not receive the same treatment and privileges ac- 
 corded to a respectable man or woman in public places, 
 and by the public* 
 
 The persons who have been most discriminated 
 against are the colored persons, when they have insisted 
 upon receiving the rights and privileges granted to 
 them hj the fourteenth amendment of the constitution of 
 the United States and the laws enacted in pursuance of 
 its adoption. And much litigation has arisen under that 
 amendment and the laws thereunder, resulting always in 
 their favor.* 
 
 One of the elements of damages recoverable in an 
 action of this kind is the mental suffering caused by the 
 insult and humiliation, growing out of or occasioned by 
 the discrimination. 
 
 Of course it is not contended that the railroad company 
 cannot make regulations by which white and black may 
 or must ride separately, provided that the facilities and 
 accommodations are substantially equal in quality, in 
 safety and in comfort, and that the cars are equipped and 
 furnished with the same conveniences and without dis 
 crimination. 
 
 In Munn v. Illinois, 94 U. S., 113, Chief Justice Waite, 
 speaking of this principle, says: "When one therefore 
 devotes his property to a use in which the public has an 
 interest, he in effect grants to the public an interest in 
 that use and must submit to be controlled by the public 
 for the common good, to the extent of the interest he 
 has thus created." 
 
 In People v. King, 1 10 N. Y., 418, the court said : "In 
 the judgment of the legislature the public has an interest 
 to prevent race discrimination between citizens on the 
 part of persons maintaining places of public amusement, 
 and the quasi public use to which the owner of such a 
 
 1 Railway Co. v. Valleley, 32 O. S., ^ Munn v. Illinois, 94 U S., 113; 
 
 345 ; Baltimore, Pitts, etc., R. Co. v. People v. King, 110 N. Y., 418, 1 h. R. 
 McDonald. 63 Ind., 316; Railroad Co. A., 293. 
 V Hinds, 53 Penn. St., 512; Flint v. 
 Railway Co , 34 Conn., 554. 
 
g 103 MENTAL SUFFERING. 200 
 
 place devoted his property, gives the legislature the right 
 to interfere. ' ' 
 
 There is a long line of decisions sustaining both such 
 regulations and such legislation providing for sepa- 
 rate railway cars and separate schools for white and 
 black persons if the equality is recognized in their accom- 
 modations.^ But a regulation which discriminates 
 against passengers on account of race prejudice is not 
 reasonable,^ A colored passenger upon a train is entitled 
 to the same protection against drunken and violent, men 
 seeking to molest, outrage and humiliate him, as a white 
 passenger." 
 
 § 103. Measure of Damages for Insult. The com- 
 pensation which an injured person may recover for men- 
 tal suffering caused by an insult, indignity or humiliation, 
 must of necessity be determined by the facts and cir- 
 cumstances of each particular case. It will depend upon 
 the nature and character of the insult or indignity, the 
 publicity thereof, and the humiliation and effects caused 
 thereby. The social, professional, or commercial stand- 
 ing of the injured person will become a factor or element 
 of damage for consideration by the jury,* in estimating 
 the amount of the compensation, if such relation is 
 affected by such injury. These damages will include 
 both the temporary and permanent effects of the injury. 
 
 'Houckv. Railway Co., 38 Fed. 226. Mich., 620; Cozer v. N. W. etc. 
 
 White and colored persons may be Packet Co., 37 Iowa, 145; Rose v. 
 
 separated if the cars furnished to Railway Co., 70 Miss., 725, 12 So. Rep., 
 
 each are equally safe, and comforta- 823. 
 
 ble ; and equipped without discrimi- ' Richmond etc. D. R. Co. v. Jefifer- 
 
 nation. Councill v. Railway Co., 1 Int. son, 89 Ga., 554, 17 L. R. A., 571, 16 S. 
 
 Com. R., 638 ; Heard v. Railway Co., E., 69 ; Britton v. Railway Co., 88 N. 
 
 2 Int. Com. R., 508; Heard v. Railway Car., 636, 43 Am. R., 749; Brown v. 
 
 Co.,] Int. Com. R., 719; Chilton v. Railway Co., 7 Fed. 51; The Civil 
 
 Railway Co., 114 Mo, 88; 19 L.R. A., Rights Bill (W. Dist.) N. Car., 1 
 
 269, Chesapeake O. & S. W. R. Co. v. Hughes, 541 ; U S. v. Bunton, 10 Fed. 
 
 Wells, 85 Tenn, 613, 31 Am. & Rep., 730, note; Railroad Co. v. 
 
 Eng. Rd. Cases, 111; Logwood v. Brown, 17 Wall., 449. 
 
 Railway Co., 23 Fed., 318; Murphy v. *Carsten v. Railway Co,. 44 Minn., 
 
 Railway Co., 23 Fed., 637 ; The Sue., 22 454 20 Am. St. Rep., fi89n. ; Shepard v. 
 
 'Ped..8AS;ExparUF\esfy,ibha.Ann., Railway Co., 77 Iowa, 54 ; Cain v. 
 
 80, 18 L. R. A., 639 ; State v. MrCann, Railway Co., 77 Iowa, 297 ; Brown v. 
 
 21 O S.. 198; Ward v. Flood, 48 Cal., Railway Co., 6 Fed. 499 ; Croaker v. 
 
 36 4!); Westchester & P. R. Co. v. Railwav Co., 36 Wis. 657, 17 Am. 
 
 Miles, .55 Pa. St , 209. Rep., 504. 
 
 ^People V. King, 110 N. Y.,4I8. 1 In Carsten v. Railway Co., 44 Minn., 
 
 L. R. A., 293; Secuir v. Beiisoi., 27 La. 454, 20 Am. St. Rep. 589, an action was 
 
 Ann., 1 ; Chic. & N. W. R. Co. v. Wil- brought to recover damages forforci- 
 
 hams, 55 111., 185 ; Day v. Owen, 5 ble ejection from the defendant's 
 
201 MENTAE SUFFERING. 
 
 ? loa 
 
 There is no mathematical rule by which to assess or 
 measure damages for insult or indignity. A general rule, 
 however, as universally accepted by the courts as any, is 
 that the compensation must be reasonable in view of the 
 injury done, in the light of the facts and circumstances 
 incident thereto. The reason why there is no rule, other 
 than the one that the damages should be reasonable, is 
 because language is inadequate to describe the full mean- 
 ing of the mental pain and anguish of an inexcusable 
 insult, an improper proposal, an unjustifiable assault, or a 
 malicious injury. No person is able to ascertain, or know 
 the wrong: done or the extent of the injury inflicted in the 
 publication of a willful libel or slander, and the time it 
 may exist, or tell the occasion when it may arise to annoy, 
 embarrass or hinder. When it becomes possible to express 
 the complete force and effect of the pain and suffering, 
 caused by an insult, indignity or humiliation; or when some 
 instrument can be so accurately and delicately made and 
 adjusted as to discover and indicate pain and suffering, 
 including its degree and extent, then a rule may be given 
 or expressed. Until such time, the measure of damages 
 must be left to the consideration, intelligent judgment 
 and common sense of an enlightened jury or a tribunal 
 clothed with the same power and duty.' 
 
 train. The court, in discussing the damages for her terror and anxiety, 
 
 question of damages, said: "The her outraged feelings and insulted 
 
 evidence tended to prove that the virtue, and for all her mental humilia- 
 
 agents of the defendants laid tion and suffering." 
 
 hands on him, and were proceeding 'Georgia, etc. Rd. Co. v. Dougherty, 
 
 to eject him by force if necessary 86 G^. 744, 22 Am. St. Rep., 501 ; 
 
 from the car which was full of pas- Ward v. White, 85 Virginia, 212, 19 
 
 sengers. The fact that he escaped Am. St. R-p.,889; Georgia etc., Rd. 
 
 personal violence by non-resistence Co. v. Eskew, 86 Ga. 641, 22 Am. St. 
 
 does not deprive him of his right of Rep., 498 ; Schumaker v. Railway 
 
 action; and the jury were entitled Co., 46 Minn., 39 12 L. R. A, 2.58; 
 
 to consider, in connection with the South Kan. etc. Rd. Co. v. Rice, 38 
 
 physical acts of the conductor in Kan. 398, 5 Am. St. Rep., 766; Head 
 
 wrongfully attempting to eject him, v. Railway Co., 79 Ga., 358, 11 Am. 
 
 the annoyance, vexation and mortifi- St. Rfp., 434. 
 
 cation suffered by him, and the in- In Georgia, etc., Rd. Co. v. Eskew, 86 
 
 dignity put upon him," citing Chi- Ga., 641, 22 Am. St. Rep, 497, the court 
 
 cago, etc., R. R. Co. V. Flagg, 43 111., said: " Compenpation for wounded 
 
 364; 92 Am Dec. 133: 3 Sutherland feelings and to redress any indignity 
 
 on Damages, 712, 715 ; 2 Beach on offered to the plaintiff while upon 
 
 Railw y Law, Sec. 891. the train as a passenger is for esti- 
 
 In Croaker v. Railway Co., 36 Wis., malion by the jury, and not only the 
 
 657, 17 Am. Rep , 504, the court s 'id: literal facts in evidence, but their 
 
 " she appears in the record to be a actual effect on the emotions should 
 
 person who would feel such a wrong be considered and regarded." 
 keenly. She was entitled to liberal 
 
i 104 
 
 MENTAI, SUFFERING. 
 
 202 
 
 In estimating the damages the jury may take into con- 
 sideration the plaintiff's condition in life, his reputation 
 in community and any circumstances attending the act 
 complained of; but they cannot consider the wealth of the 
 defendant nor poverty of the plaintiff.' 
 
 § 104. Proof of Damages for Insult, Indignity, etc. 
 
 Where a party is with force or without authority, or both, 
 ejected from a railway car, in the presence of other 
 passengers, and the announcement is publicly made by 
 the conductor that such party has refused to pay his 
 fare, the jury would be authorized to find from such 
 facts that the person so ejected suffered feelings of dis- 
 grace, annoyance, and humiliation without any proof on 
 the subject/ 
 
 If such conductor used more force than was necessary 
 to eject such passenger, or used vile epithets or profane 
 language towards him, such conduct should always be 
 considered by the jury in aggravation of damages.' 
 
 Georgia, etc., Rd. Co. v. Dougherty, 
 86 Ga., 744, 22 Am. St. Rep., 501, the 
 court also said : " In some torts, the 
 entire injury is to the peace, happi- 
 ness or leeliugs of the plaintiff In 
 such cases, no measure of damages 
 can be prescribed, except the enlight- 
 ened conscience of impartial jurors. 
 The worldly circumstances of the 
 parties, the amount of bad faith in 
 the transaction, and all attendant 
 facts should be weighed,' 
 
 In South Kan. Ry. Co. v. Rice, 38 
 Kan., 398, 5 Am. St. Rep., 766, the 
 following instruction was approved : 
 " That in estimating damages the 
 jury might take into consideration, 
 the indignity, insult, and injury to 
 plaintiff's feelings by being publicly 
 expelled." 
 
 In Head v. Railway Co., 79 Ga , 358, 
 11 Am. St. Rep., 434, in an action for 
 damages for ejection from the rail- 
 road train, the court held that the 
 plaintiff was entitled to damages for 
 wounded feelings, and said: "There 
 can be a closer approximation in es- 
 timating the damages to a limb than 
 to the feelings, but at the best the 
 amount is indefinite. The jury would 
 have a much wider discretion in deal- 
 ing with feelings than with an ex- 
 ternal injury." In Ward v. White, 85 
 
 Va., 212, 19 Am. St. Rep., 889, the ac- 
 tion was for damages (or assault and 
 battery. In dealing with the question 
 of damages for injured feelings the 
 court said : " From the prolific 
 fountain of litigation, numerous 
 cases must daily spring up calling for 
 adjudication for alleged injuries, ac- 
 companying with facts and circum- 
 stances affording no definite standard 
 by which these alleged wrongs can 
 be measured, and which, from the 
 necessity of the case, must be judged 
 oi and appreciated by the views that 
 inay be taken of them by impar- 
 tial tnen. To the jury, therefore, as a 
 favorite and almost sacred tribunal, 
 is committed by unanimous consent 
 the exclusive task of examining those 
 facts and circumstances, and valuing 
 the injury and awarding compensa- 
 tion in the shape of damages." 
 
 'Hays V. Railway Co., 46 Tex., 
 272; Chic, B. & Q. R. R. Co. v. 
 Bryan, 90 111., 126. 
 
 "Chicago & N. W. R. R. Co. v. 
 Chisholm, 79 111., 584: Chicago & N. 
 W. R. R. Co. V. Williams, 55 111., 185; 
 Head v. Railway Co., 79 Ga., 3-58, 11 
 Am. St. Rep., 434. 
 
 ' Croaker v. Railway Co , 36 Wis., 
 657, 17 Am. R. 504 ; Chic. & N. W. 
 Rd. Co. V. Williams, .55 111., 185; 
 
203 MENTAL SUFFERING. g 105 
 
 "It is, of course, impossible to pi'ove in dollars and 
 cents the amount of injury -which the plaintiff has suf- 
 fered in cases where the injury is to his feelings. The 
 courts in some states have therefore established the rule 
 that the plaintiff need not give any evidence of the 
 amount of such suffering, provided they are such as 
 would naturally flow from the injury complained of. 
 " The jury is at liberty to make its own estimate of these 
 sufferings, and their verdict is conclusive unless the 
 amount given by them is so excessive as to show passion 
 or prejudice." ' 
 
 § 105. Elements of Damages for Insult. The com- 
 pensation which an injured person is entitled to recover 
 in an action for personal injuries for any insult, indignity, 
 humiliation and annoyance, will include all the damages 
 which are the natural result and effect of the injury or 
 wrong done. The different elements of damages will not 
 vary materially from the well defined elements which 
 must be shown in any action for damages for a physical 
 injury to the person. Some one or more of the following 
 elements of damages will appear in every meritorious 
 cause of action for an insult, indignity or humiliation, 
 according to the nature, extent, and effect of the injury, 
 the publicity of the act by which an injury is done, the 
 want of cause, and the conduct and motive of the wrong- 
 doer, to- wit; 
 
 First. Any injury to the health of the person, caused 
 by the insult, indignity or humiliation and which is the 
 natural consequence thereof. Any expenses paid to 
 effect a cure, any time lost, any sickness or disease caused 
 or developed, and any permanent effect of such injury 
 upon the person to follow his trade." 
 
 Second. Any injury to the character or credit of the 
 injured person by reason of the unlawful act, insult or 
 indignity.' 
 
 Southern Kan. Ry. Co. v. Rice, 38 Union Tel. Co. v. Houghton 82 Tex., 
 
 Kan 398 5 Am. St. Rep., 766 : Quig- n61 ; Western Union Tel. Co. v. 
 
 Uy V. Railwty 6o , 11 Ne^., 350. " McLeod, 22 a W Rep 988 ; Johnson 
 
 iCrosswell on Law of Electricity, v. Disbrow, 47 Mich , 59 
 
 ?a 662 663 ■ Western Union Tel. Co. v. ^ See Chapters 4, 6 and b. 
 
 Cunningham, 99 Ala., 309 ; Western ' See Chapter 12, post. 
 
105 MENTAL SUFFERING. 204- 
 
 Third. Any iaconvenience, delay, hindrance or physi- 
 cal hardship endured by the injured person growing 
 out of the wrongful act/ 
 
 Fourth. Compensation for the mental pain and suffer- 
 ing caused by the insult, indignity or humiliation, and for 
 wounded feelings, loss of peace and happiness of mind or 
 disgrace occasioned thereby." 
 
 Fifth. Punitive damages may also be recovered. 
 They are dependent upon the motive, injustice, or malice 
 entering into the injury or wrong done.^ 
 
 There is no distinction in the application of the rule 
 as to the damages which may be recovered between white 
 or colored persons.* , vii] 
 
 1 Georgia Rd., etc., Co. v. Eskew, 86 erty, 86 Ga., 744, 22 Am. St. Rep. 499. 
 
 Ga., 641, 22 Am. St. Rep., 495. » South. Kan. Ry. Co. v. Rice, 38 
 
 ' Georgia Railroad, etc., Co. v. Es- Kan., 398, 5 Am. St. Rep. 766 ; Georgia 
 
 kew, 86 Ga., 641, 22 Am St. Rep. 495 ; Rd., etc., Co. v. Eskew, 86 Ga., 641, 22 
 
 Carsten v. Railway Co., 44 Minn., 454, Am. St. Rep., 495 ; Sullivan v. Oregon 
 
 20 Am. St. Rep., 589; Shepard v. Rail- Ry. & Nav. Co., 12 Or. 392,53 Am .R. 
 
 way Co., 77 Iowa, 54; Cain v. Rail- 364, 7 Pac. Rep. 508. 
 
 way Co., 39 Minn.,.297 ; Brown v. Rail- 'Brown v. Railway Co., 7 Fed. R., 
 
 way Co., 7 Fed. Rep., 54; Croaker v. 51 ; Richmond & Danville R. Co. v. 
 
 Railway, 36 Wis., 657, 17 Am. R., 504; Tefiferson, 89 Ga., 554, 17 h. R. A., 571. 
 Georgia Railroad etc., Co. v. Dough- 
 
205 
 
 MENTAL SUFFERING. 
 
 i 106 
 
 CHAPTER XI. 
 
 MENTAL SUFFERING, CONTINUED. — MENTAL SUFFERING 
 CAUSED BY LIBEL OR SLANDER. 
 
 Sec. 
 
 106. Damages for Mental Suflfering 
 
 Caused by Libel or Slander. 
 
 107. Damages, Elements of. 
 
 Sec. 
 
 108. Mental Suffering, Damages for. 
 
 109. Damages, Evidence of. 
 
 § 106. Damages for Mental Suffering Caused by 
 liibel or Slander. Where libelous or slanderous words 
 are spoken about another person, which are untrue, and 
 affect liis credit, character and standing as a citizen in 
 the communit}' in which he lives, an injury is done to 
 such person. In most cases, the injury is largely to the 
 feelings, and liumiliation, disgrace and mental suffering 
 to the person are caused by the wrongful act. In such 
 cases the jury may consider mental suffering, and award 
 reasonable damages therefor.' 
 
 Wounded feelings, enfeebled health and capacity to 
 perform labor as a result of slanderous words spoken 
 about a young lady, charging her with unchastity, may 
 be taken into consideration by the jury in estimating 
 damages for slander.^ 
 
 The fact that the jury acquits the defendant of any 
 malice or wilfulness in the publication of an article, 
 charging a virtuous young woman with the grossest im- 
 morality, will not prevent her from recovering lor the 
 injury to her feelings, character and reputation, for 
 humiliation, shame and disgrace, which the publication 
 brought upon her, and for illness of body and worry of 
 mind.' 
 
 In an action of libel brought to recover damages for a 
 libelous article published by the Detroit Evening News, 
 charging one of the circuit judges- with having 
 
 Queen v. Fulgham, 27 Tex. 46S ; 
 Gomez v. Joyce, 1 N. Y. Supp. 337 ; 
 Rea V. Harrington, 58 Vt. 181 ; Far- 
 rand V. Aldrich, 85 Mich. 593, 48 N. 
 
 'ZeliflF V. Jennings, 64 Tex. 458 
 Mahoney v. Belford, 132 Mass. 393 
 Marble v. Chapin, 132 Mass. 255 
 Hastings v. Stetson, 130 Mass. 329 
 Chelsey v. Thompson, 137 Mass. 176 
 Markham v. Russell, 12 Allen (Mass.) 
 573; Scripps v. Reilly, 38 Mich. 10; Mc- 
 Dougal V. Coward, 95 N. C. 368; Mc- 
 
 W. Rep. 620. 
 
 'Zeliff V. Jennings, 61 Tex. 458. 
 
 'Farrand v. Aldrich, 85 Mich. 593, 
 48 N. W. Rep. 620. 
 
g 106 MENTAL SUFFERING. 206 
 
 committed thecrimeof adultery, Judge Marston laid down 
 the following rules, as applicablein determining the allow- 
 ance of damages, to-wit: 
 
 "1. In any injury entitling the party to redress, dam- 
 ages to the person, property aad reputation, together 
 with such special damages as may be shown, are recover- 
 able. 
 
 "2. Whej'e the act done is one which from its very 
 nature must be expected to result in mischief, or where 
 there is malice or wilful or wanton misconduct, careless- 
 ness or negligence, so great as to indicate a reckless dis- 
 regard of the rights or safety of others, a new element of 
 damages is allowed, namely, for injury to the feelings of 
 the plaintiff. 
 
 "3. Damages for injuries to the feelings are only 
 allowed in those torts which consist of some voluntary act 
 or very gross neglect, and depend in amount very much 
 upon the degree of fault evinced by all the circumstances. 
 
 "4. Where the tort consists of some voluntary act, 
 but no element of malice, carelessness or gross negli- 
 gence is shown to have existed, but that the wrong was 
 done in spite of proper precaution, the damages to be 
 awarded on account of injured feelings will be reduced to 
 such sum as must inevitably have resulted from the 
 wrong itself. 
 
 "5. Where, however, the elements exist in a case en- 
 titling the party to recover damages for injured feelings, 
 the amount to be allowed for shame, mental anxiety, in- 
 sulted honor and suffering and indignation consequent 
 on the wrong, may be increased or aggravated by the 
 vindictive feelings, or the degree of malice, recklessness, 
 gross carelessness or negligence of the defendant, as the 
 injury is much more serious where these elements or 
 either of them are shown to have existed. 
 
 "8. In cases of libel, the publication is always consid- 
 ered a voluntary act and is presumed to have proceeded 
 from malicious motives. The actual motive, however, 
 may be shown either in aggravation or reduction of the 
 damages to the feelings of the injured person. In other 
 words, the spirit and intention of the defendant in publish- 
 ing the libel may be considered by the jury in estimating 
 the injuries done to the plaintiff's feelings." ' 
 
 iScripps V. Reilly, 38 Mich. 10, McArthur, 16 Mich. 447 ; Livingston 
 citing; Detroit Daily Post Co. v. v. Burroughs, 33 Mich. 511. 
 
207 MENTAL SUFFERING. g 107 
 
 § 107. Amount Recoverable— Elements of Dam- 
 ages. The amount which the injured party ought to re- 
 cover is referred to the sound discretion of the jury, and 
 the elements or factors which should be taken into con- 
 sideration are the plaintiff's injured feelings and tar- 
 nished reputation, the nature of the imputation, and the 
 character, condition and influence of the parties as they 
 may be shown by the evidence. Likewise all mitigating 
 circumstances proved are to be considered by the jury in 
 determining the amount of recovery. In a case where no 
 punitive or exemplary damages are claimed, the jury 
 should be instructed that their verdict should not be 
 based upon any idea of the punishment of the publisher 
 of the libel nor include any damages by way of punish- 
 ment or example. In such cases, the verdict must be 
 purely compensatory under the rules as above stated.^ 
 
 Where the plaintiff was accused of having stolen from 
 his employer during an angry dispute at an election in 
 the presence of from twenty to sixty persons, the follow- 
 ing instruction was held correct: "That they (the jury) 
 might consider the injury, if any were shown, to the men- 
 tal feelings of the plaintiff which was the natural and 
 necessary result of the words used, if in fact they were 
 used as alleged, and were slanderous; that mental suffer- 
 ing was an element of damage. " The court quoted the 
 words of Chief Justice Bigelow in Markham v. Russell, 12 
 Allen, 573, to- wit: "Undoubtedly the material element 
 of damage in an action for slander is the injury done to 
 character. But it is not the sole element. A jury may 
 have a right also to consider the mental suffering which 
 may have been occasioned to a party by the publication 
 of the slanderous words." ^ 
 
 Damag-es may be recovered for injury to feelings and 
 for humiliation arising from an assault and denunciation 
 of a person in a court building, in the presence of officers 
 of the court and others, as a thief, and as having robbed 
 the party making- such denunciations, and for the latter's 
 threat to cowhide the former, although the former is a 
 person of bad character and reputation.^ 
 
 The plaintiff's mental suffering caused by the false 
 publication of defamatory matter which is libellous 
 
 > Fenstermaker v. Tribune Publish- See also Marble v. Chapin, 132 Mass. 
 ing Co., 12 Utah, 439, 35 L. R. A. 611. 255. 
 'Mahoneyv.Belford, 132 Mass. 393. 'Casper v. Prosdame, 46 La. Ann 
 
 36. 
 
^^ 108-109 MENTAL SUFFERING. 208 
 
 per se is a proper element to be considered in estimating- 
 general compensatory damages, although special damages 
 are not alleged or proved. Mental pain and anxiety, the 
 law cannot value and does not pretend to redress, when 
 the unlawful act complained of causes that alone, though 
 where a material damage occurs and is connected with it, 
 it is impossible that a jury in estimating it should alto- 
 gether overlook the feelings of the party interested.* 
 
 § 108. Mental Suflfering, Damages for. Mental suf- 
 fering may be said to be one of the principal elements of 
 damage, and may be allowed, even if the jury acquit the 
 defendant of malice or wilfuUness in the publication. 
 The court of Michigan, speaking' of this subject, used 
 this language : "If a virtuous, young woman is entitled 
 to no consideration for her injured feelings when she has 
 been charged with the grossest immorality, courts might 
 as well deny her a cause of action."^ 
 
 § 109. Damages, Evidence of. It is proper to per- 
 mit the plaintiff to testify as to the mental sufferings 
 caused by the slander, and its effect upon his ability to 
 sleep or work ; that is, that he was not able to sleejp or 
 
 WM^k." 
 
 Evidence that the plaintiff has often been heard to cry 
 and sob in the night is admissible; likewise testimony of 
 conduct, exclamations and acts of the plaintiff when she 
 first read the article, was held proper.* 
 
 It is also competent for the jury to consider the effect 
 such publication charging a virtuous young woman with 
 unchastity would have upon her in the future.' 
 
 The contrary doctrine is held in Wisconsin, i. e., dam- 
 ages for prospective suffering cannot be recovered in an 
 action for libel." 
 
 But when the libel is not actionable per se, mental 
 anguish cannot be recovered as a part of the damages 
 without proof of some other injury or damage.' 
 
 1 Republican Publishing Co v. ' Rea v. Harrington, 58 Vt. 181; 
 
 Mossman 15 Colo. 399. Per Lord Farrand v. Aldrich 85 Mich. 593. 
 
 Wrfe!'9^H't'cif7"'='Ai:o,^Htthor^ 7^^^^^ - ^"^-»'. «^ ^^^^- '''■ 
 
 V. Lawson, 3 C. & P. 196; Le Pann v. "Farrand v. Aldrich, 85 Mich. 593. 
 
 Malcolmson, 8 Ir. L. R. 418 ; Swift v. ^ Bradley v. Cramer, 66 Wis. 297. 
 
 Dickerman, 31 Conn. 285; Wads- ' Hirstfield v. Ft. Worth Nat. 
 
 ''°i"iy- ^'■^^k*^ ^°- ^^^ ' Mahoney Bank, 83 Tex. 452, 15 L. R. A. 639 
 
 V. Bedford, 132 Mass. 393 ; Farrand Trawick v. Martin Brown Co., 79 Tex. 
 
 V. Aldnch 85 M,ch. 593 460; Cooley on Torts, p. 204, and 
 
 'Farrand v. Aldrich, 85 Mich. 593, note. > i- > 
 604. 
 
209 
 
 MENTAIv SUFFERING. 
 
 108-109 
 
 But where the publication is libellous per se the mental 
 suffering of the plaintiff caused by the publication may- 
 be considered by the jury in awarding damages, even 
 though there is no proof of any other injury or damage.^ 
 
 Again the mental suffering- and humiliation which are 
 necessarily caused by the publication of a libel reflecting 
 upon the character of a reputable man, are elements of 
 general damages, which the jury may consider."^ 
 
 The mental suffering which may be considered as an 
 element of damages in an action for libel must be such 
 as the plaintiff naturally experiences, as the direct, 
 immediate and proximate effect of the libel on the mind 
 and feelings/ 
 
 The repetitions of the libel by others than the defend- 
 ant or comments made thereon cannot be shown to en- 
 hance such damages.* 
 
 A parent cannot recover damages for a libellous publi- 
 cation about his deceased adult son.'* 
 
 iVan Ingen v. Star Co., 37 N. Y. 
 Sppp. 114. 
 
 ^Palmer v. Publishing Co., 52 N. 
 Y. Supp. 539; Cribbs v. Yore, 119 
 Mich. 237, 77 N. W. Rep. 927 ; Van 
 Ingen v. Star Co., 157 N. Y. 695, 51 
 N. E. Rep. 1094. 
 
 'Turner v. Hearst, 115 Cal. 394; 
 47 Pac. Rep. 129; See also, Forke v. 
 Bamann, Tex. Civ. App. 39 S. W. 
 
 Rep. 210; Young v. Sheppard, Tex. 
 Civ. App. 40 S. W. Rep. 62. 
 
 'Fisher v. Patterson, 14 Ohio 418, 
 and authorities in note to ceutury an- 
 notated edition . / oVIa .4^ 
 
 'Bradt v. Non Pariel Co., >6 la. 9«, 
 45 L. R. A. 681 ; Sorensen v. Balaban, 
 42 N. Y. Supp. 654, 11 App. Div. 164; 
 Wellmau v. Sun Printing & Pub- 
 lishing Assn., 66 Hun, 331. 
 
 14 
 
§ 110 
 
 MENTAL SUFFERING. 
 
 2IQ 
 
 CHAPTER XII. 
 
 MENTAL SUFFERING CONTINUED— MENTAL SUFFERING 
 CAUSED BY A WRONGFUL ASSAULT, FALSE IM- 
 PRISONMENT, OR MALICIOUS PROSECUTION. 
 
 Sec. 
 
 110. Wrongful Assault. 
 
 111. False Imprisonment. 
 
 112. Malicious Prosecution. 
 
 113. Damages Confined to one Assess- 
 
 ment. 
 
 Sec. 
 
 114. Wrongful Attachment. 
 
 115. Seduction. Damages Recover- 
 able by Parent. 
 
 § 110. Wrongful Assault. When a person is sub- 
 jected to any indignity, wrong or humiliation before his 
 fellow men in the community where he lives, or in any 
 public place, without cause, he suffers to a less or greater 
 degree in mind and feelings, by reason of such indignity, 
 wrong or humiliation. It becomes a personal injury 
 becai;se it is personal to him. For any such suffering, 
 on account of any assault or any prosecution without 
 merit or foundation, or for any imprisonment upon any 
 false accusation, or any arrest or interference with his 
 person without due process of law, or with his liberty 
 in his ordinary business or profession without cause, 
 such person is entitled to recover damages for the mental 
 anguish, shame and humiliation occasioned by any such 
 wrongful or illegal act.^ 
 
 What the nature of the mental suffering may be will 
 depend upon the wrongful act, its publicity, and the 
 malice, if any, evinced by the wrongdoer. The damages 
 in this class of injuries are not limited to the actual 
 damages sustained. To confine the damages to the 
 actual damages sustained would be in practice a denial of 
 justice, because damages of this character to the person 
 or reputation cannot be measured by the loss of money ; 
 
 1 Fisher v. Hamilton, 49 Ind. 341 ; 
 Stuart V. Maddox, 63 Ind. 51 ; Byrne 
 V. Gardner, 83 La. Ann. 6 ; McGee v. 
 Holland, 27 N. J. L. 86; Stowe v. 
 Heywood, 7 Allen, 118; Weaver v. 
 Bachert, 2 Pa. St. 60 ; 44 Am. Dec. 
 178n; Lunsford v. Dietrich, 86 Ala. 
 250, 11 Am. St. 37; Meagher v. Dris- 
 
 coll, 99 Mass. 281 ; Larson v. Chase, 
 47 Minn. 307 ; 14 L. R. A. 85 ; Beck 
 V. Thompson, 31 W. Va. 459, 13 Am. 
 St. Rep. 870 ; Fay v.Swan , 44 Mich. 644; 
 Ross V. Lepgett, 61 Mich. 445; Pal- 
 mer V. Railway Co. 92 Me. 399, 44 L. 
 R. A. 673; West v. Forrest, 22 Mo. 
 344 ; Welch v. Ware, 32 Mich. 76. 
 
211 MENTAL SUFFERING. i no 
 
 they are not capable of financial measurement; they 
 are called compensatory damages by some courts;^ by 
 others they are classed as exemplary damages, being- 
 compensatory damages increased according to the degree 
 of gross carelessness or malice evinced by the person 
 guilty of the wrongful act. As a wrongdoer is liable for 
 any natural results of his trespass, the victim of an 
 indecent assault may recover for the disgrace and 
 mental suffering, as well as the physical suifering caused 
 by it.' 
 
 Mental anguish, shame and dishonor suffered by the 
 plaintiff must be considered in awarding compensatory 
 damages for the assault and battery.'' 
 
 So exemplary damages are recoverable for an oppres- 
 sive or malicious assault upon a person.* 
 
 In Michigan, in an action for damages for assault and 
 batterj'. Judge Campbell said: "A person assaulted may 
 not be disabled or even disturbed in his business, and 
 may not be put to any outlay in repairs or medical 
 service; he may not be made poorer in money directly or 
 consequentially; he may incur no pecuniary damage 
 whatever, yet it is very clear that the shame and mental 
 anguish and suffering or indignity consequent upon such 
 wrong are not capable of a money measurement. No one 
 would vow in advance that he would willingly for a given 
 sum meet that experience, and no one who would seek it 
 as a means of putting money in his pocket would be 
 likely to receive compensation at the hands of the jury. 
 
 " So, a person who is struck down by a blow from the 
 arms of a wind-mill may be much more seriously hurt 
 than by a blow from a fist or whip; but no one would 
 dream of comparing these injuries by their physical 
 effects. 
 
 "When the law gives an action for wilful wrongs, it 
 does it on the ground that the injured person ought to 
 receive pecuniary amends from the wrongdoer. It 
 assumes that every such wrong brings damages upon 
 the sufferer, and that the principal damage is mental 
 and not physical, and it assumes further that this is 
 actual and not metaphysical damages and deserves 
 compensation. 
 
 " Scripps. V. Riley, 38 Mich. 10. ' Beck v. Thompson, 31 W. Va. 469, 
 
 2 Fay V. Swan, 44 Mich. 544 ; Camp- 13 Am. St. Rep. 870. 
 
 bell V. Palace Car. Co., 42 Fed. Rep. *Bundy v. McGinnis, 76 Cal. 532. 
 
 484. 
 
2 111 MENTAI, SUFFERING. 212 
 
 "If actual damage is not confined to pecuniary conse- 
 quences and cannot be measured by a money standard, 
 all redress in damages must partake of a pecuniary 
 character to some extent, and the line between actual and 
 what are called exemplary damages cannot be drawn 
 with much nicety. In every such case the jury are com- 
 pelled to determine from their own sense of justice and 
 their knowledge of human nature what the amount of 
 damages should be.'" 
 
 But where a person voluntarily enters into a fight for 
 the sake of fighting and not in self defense, he cannot 
 recover for damages which he may have sustained, from 
 his adversary, unless the defendant beat him excess! velj' 
 and unreasonably.'' 
 
 § 111. False Imprisonment. The sense of shame, 
 mortification, outrage and disgrace inflicted upon a 
 person incident to a false imprisonment may be con- 
 sidered by the jury. 
 
 In a celebrated case in Michigan, the court laid down, 
 in an action for false imprisonment, this proposition as 
 to what constitutes actual damages: "Actual damages 
 are those which an injured person is entitled to recover 
 for wrong received and injuries done, where none were 
 intended, but in cases where the injuries are inflicted 
 intentionally or occur through carelessness or negligence 
 amounting to a wrong so reckless and wanton as to be 
 without palliation or excuse, further damages are 
 frequently and properly given, and have been variously 
 designated as exemplary, punitory, vindictive, compensa- 
 tory or added damages. The important question always 
 is in every case, 'Was the character of the wrong 
 suffered or injury sustained such as may be lawfully 
 atoned for or compensated for in money?'" " 
 
 In New York it was held that taking an elderly man into 
 custod V an d marching him through a crowded thoroughfare 
 in charge of an officer, depriving him of his liberty, away 
 from his friends and facilities for bail, putting him on 
 trial, causing him fear and suspense, are acts to call for 
 substantial rather than nominal damages.* 
 
 Humiliation, insult and wounded sensibilities conse- 
 quent upon an unlawful arrest without warrant or an 
 
 > Welch y Ware, 32 Mich. 77. • Ross v. Leggett, 61 Mich . 445. 
 
 i«, o, ^T^li^ r^- Flewing. 60 Mich. 3 Xoomey v. Delaware, L. & W. R. 
 
 403, 27 N. W. Rep. 581. Co., 24 N. Y. Supp. 108. 
 
213 MENTAL SUFFERING. j 11^ 
 
 unfounded charge, and upon subjection to great indignity- 
 are proper subjects of compensation, in an action for 
 false imprisonment.^ 
 
 Mental sufFering and injury to feelings caused by an 
 arrest in the presence of a number of persons in a pub- 
 lic place are properly considered in assessing damages 
 for unlawfully making an arrest. '^ 
 
 -It is not essential to the maintenance of an action for 
 false imprisonment that the original prosecution should 
 have been malicious. The question of malice is imma- 
 terial, except so far as it affects the question of dam- 
 ages.' 
 
 § 112. Malicious Prosecution. In an action for 
 malicious prosecution, it is settled, as a general proposi- 
 tion, that the loss of fiduciary position held by a person 
 directly attributable to such prosecution, the expense of 
 litigation in his vindication, any general impairment of 
 his integrity in social and mercantile relations, and the 
 shame and humiliation endured as the direct result of the 
 charge against him, including peace of mind and indi- 
 vidual happiness, may be considered in estimating dam- 
 ages.* 
 
 In actions for malicious prosecution, mental anguish 
 has always been held a proper subject for compensatory 
 damages." 
 
 In this last case, it was held that in a malicious prose- 
 cution for larceny, the court may instruct the jury that, 
 the plaintiff, if entitled to recover at all, can recover 
 such actual damages as naturally and proximately follow 
 the arrest, as physical sufFering and wounded pride. 
 
 In Michigan, in an action for malicious prosecution, the 
 Supreme Court laid down this rule : "We may observe 
 in general terms that the elements of damages were the 
 expenses of the plaintiff, if any, in and about the prose- 
 cution complained of to protect himself, his loss of time,, 
 his deprivation of liberty, and the loss of his society to^ 
 
 1 Ball V. Horrigan, 19 N. Y. Supp. * Willard v. Holmes, 21 N. Y. Supp:, 
 913. 998 ; Fisher v. Hamilton, 49 Ind. 341. 
 
 2 Yount V. Carney, 91 la. 559 ; 60 N. * Coleman v. Allen, 79 Ga. 637; 
 W. Rep., 114. Lunsford v. Dietrich, 86 Ala. 250, 11 
 
 'Johnson v. Bouton, 35 Neb. 898; Am. St. Rep. 37; Parkhurst v. Mas 
 
 63 N. W. Rep. 995 ; Kolzeni v. Broad- tellar, 57 la. 474 ; McWilliams v. 
 
 way & S. A. R. Co., 20 N. Y. Supp. Hoban, 42 Md. 56. 
 700; Stewart v. Madden, 63 Ind. 51. 
 
?? 113-114 MENTAL SUFFERING. 214 
 
 his family, the injury to his fame, mortification, and the 
 smart and injury of the malicious arts and acts of oppres- 
 sion of the parties."^ 
 
 In an action by a watch-maker against his former 
 employer for malicious prosecution on a charge of 
 embezzlement, the plaintiff should be permitted to show 
 the nature of his business and the tools required and 
 used in it, the subsequent difficulty he had in procuring 
 employment, the trouble to which he was subjected by 
 taking away his property on which he relied to obtain 
 other tools, the amount of his earnings, the injury to his 
 feelings and reputation, and indignity he suffered, for 
 the reason that the natural and necessary result of the 
 charge made against him would be to render it more 
 difficult for him to obtain emploj^ment, and to impair his 
 credit and affect his reputation, as well as to injure his 
 feelings and subject him to indignity/ 
 
 Damages for expenses of counsel and costs in obtain- 
 ing sureties on a bond are also recoverable.' 
 
 § 113. Damages Confined to one Assessment. There 
 can be but one assessment of damages in an action for 
 malicious prosecution, and all the damages accruing 
 after, as well as before, the action was brought, must be 
 included in such assessment. Evidence as to the dam- 
 ages after the issuance of a writ is therefore rightly 
 admitted.* 
 
 An action for malicious prosecution is not like that of 
 a continuing trespass, as where new causes of action 
 arise from day to day, or in a case of successive breaches 
 of a contract.' 
 
 § 114. Wrongful Attachment. In an action for 
 damages for the issuance of a wrongful attachment upon 
 the ground that the defendant was about to dispose of his 
 property with intent to defraud his creditors, or had ab- 
 sconded, or was about to abscond with like intent, or had 
 fraudulently contracted a debt any of which was untrue 
 any mortification or humiliation caused thereby form a 
 part of the actual damages to be recovered." 
 
 1 Hamilton V. Smith, 39 Mich. 222. ^ Wheeler v. Hanson, 161 Mass. 
 
 2 Wheeler v. Hanson, 161 Mass. 370, 370; 42 Am. St. Rep. 108. 
 
 42 Am. St. Rep. 408. 6 gyrne v. Gardner, 33 La. Ann. 8. 
 
 lao 1^ ^' ^^^°"' 26 Am. St. Rep. In this case, there was a serious in- 
 
 162, 164n ; Wheeler v. Hanson, 161 jury to the plaintiff's businefe stand- 
 
 f?f "'S; Tomlinson v. Warner, 9 Ohio 
 
 * Fay V. Guinon, 131 Mass. 31. ' 103; WiUard v. Holmes, 21 N. Y. 
 
 Supp. 998. 
 
215 
 
 MENTAL, SUFFERING. 
 
 § U5, 
 
 Elements of Damages. Where plaintiff's integrity 
 was unimpeached up to the time of defendant's prosecu- 
 tion, and he was rated high in financial circles, and had 
 been solicited to assume the presidency of a bank, and 
 other equally important fiduciary positions, the loss of 
 which were directly attributable to defendant's prosecu- 
 tion, impugning his integrity; the loss of such office, 
 together with the money expended in vindicating himself, 
 the general impairment of his social and mercantile 
 standing, and the shame and humilation endured, were 
 all proper elements of damages against the defendant.' 
 
 § 115. Seduction — Damages Recoverable by Par- 
 ent. In computing the damages suffered by the parent 
 in a suit for seduction, the elements of damages to be 
 considered are not only the loss of services which he suf- 
 fered and the expenses incurred by him by reason of the 
 seduction, pregnancy, confinement and sickness; but also 
 the anxiety and the suffering of mind caused by the loss 
 of virtue of his daughter, the corrupt influence upon his 
 other children, and the disgrace to his family.^ 
 
 1 Willard v. Holmes, 21 N. Y. Supp. 
 998. In this case a verdict of $31,700 
 was sustained. 
 
 ' Riddle v. McGinnis, 22 W. Va. 
 253; Phillips v. Hogle, 4 Gray, 568; 
 Rollins V. Chalmers, 51 Vt. 592 ; Tay- 
 lor V. Shelkett, 66 Ind. 297 ; Barbour 
 V. Stephenson, 32 Fed. Rep. 66 ; Wilds 
 V. Bogan, 57 Ind. 453 ; Hatch v. Fuller, 
 131 Mass. 574; Leucker v. Steileu, 89 
 111. 545, 31 Am. Rep. 104; Clem v. 
 Holmes, 33 Gratt. 722, 36 Am. Rep. 
 793 ; Phelin v. Kenderline, 20 Pa. St. 
 354, Simpson v. Grayson, 54 Ark. 404 
 26 Am. St. Rep. 52. 
 
 In Barbour v. Stephenson, 32 Fed. 
 Rep. 66, the plaintiff recovered a 
 judgment of $15,000. The court 
 charged the jury upon the question 
 of damages, as follows : " To the 
 credit of modern jurisprudence. * 
 * * the father now is entitled not 
 only to compensation for loss of ser- 
 vices and expenses attendant upon 
 he daughter's confinement, but for 
 
 all that he can feel from the nature 
 of the injury. * ' * You may 
 give to the plaintjfF damages in your 
 discretion up to the limit claimed in 
 the declaration for the loss of that 
 comfort and consolation which he 
 had a right to feel in the purity and 
 virtue of his child. You may take 
 into consideration his loss of hope 
 in the future of his daughter and 
 compensate him for the same. You 
 may award him damages not only for 
 the mental anguish in the disgrace 
 of his daughter, but for his anxiety 
 as to what is to become of her in the 
 future. You may take into considera- 
 tion his feeling of anxiety as to the 
 effect of that daughter's example 
 upon his other child. You may look 
 to the loss to him and his family of 
 social standing and position by 
 reason of the daughter's disgrace. 
 You may consider his mortification, 
 humiliation and sense of dishonor." 
 
§ 115 
 
 MENTAL SUFFERING 
 
 216 
 
 Exemplary damages are also recoverable in cases of 
 seduction/ where no circumstances of mitigation are 
 shown.* 
 
 2 Irwin V. Dearman, 11 East, 23; 
 Torre v. Summers, 10 Am. Dec. 597; 
 Ivipe V. Eiseulerd, 32 N. Y. 229 ; Badg- 
 ley V. Decker, 44 Barb. 577, In Riddle 
 V. McGinnis, 22 W. Va. 253, the court 
 said : " That the jury, in estimating 
 the damages sustained by the plain- 
 tiff, may take into consideration the 
 mental anguish, the dishonor, and 
 shame endured by the plaintiff, as 
 well as the actual expenses incurred 
 by reason of the wrongful act of the 
 defendant." 
 
 1 Lipe V. Eisenlerd, 32 N. Y. 229 ; 
 Lavery v. Crooke, 52 Wis. 6i2, 38 Am. 
 Rep. 768, and authorities cited ; 
 Badgley v. Decker, 44 Barb. 577 ; Fox 
 V. Stevens, 13 Minn. 272 ; Morgan v. 
 Rose, 74 Mo. 318 ; Davidson v. Abbott, 
 52 Vt. 570, 36 Am. Rep. 767 ; Johnston 
 V. Disbrow, 47 Mich. 69, 10 N. W. 
 Rep. 79;'Geise v. Schultz, 69 Wis. 
 521, 34 N. W. Rep. 913 ; Franklin v. 
 McCorkle, 16 Lea. 609; Phelin v. 
 Kenderline, 20 Pa. St. 354. 
 
217 
 
 MENTAL SUFFERING. 
 
 116 
 
 CHAPTER XIII. 
 
 MENTAL SUFFERING — CONTINUED. — NEGLIGENCE IN TRANS- 
 MITTING AND DELIVERING TELEGRAMS. 
 
 Skc. 
 
 116. Mental Suffering Caused by 
 
 Negligence in Transmitting 
 and Delivering Telegrams. 
 
 117. Disclosure of Relation of Parties. 
 
 Sec. 
 
 118. Damages for Mental Suffering 
 
 Denied. 
 
 119. Physical Pain and Suffering Re- 
 
 coverable. 
 
 § 116. Mental Suffering Caused by the Negligence 
 or Failure to Transmit or Deliver Telegrams under 
 Certain Circumstances. The right to recover damages 
 for the neglect or failure of a telegraph company to 
 transmit a telegram promptly, so far as any mental suf- 
 fering is caused thereby, has been and is a question 
 which has received extended consideration by the courts. 
 The right has been granted and refused, and the question 
 is still unsettled except in those states and tribunals 
 where the question has been squarely decided. The 
 right to recover is an innovation upon the old common 
 law rule that no damages can be recovered for mental suf- 
 fering alone. The courts which have allowed a recovery 
 of damages base their decision upon this new element of 
 power, unknown to the common law, and upon the fact 
 that a negligence or failure of a telegraph company to 
 transmit and deliver telegrams is the natural or proxi- 
 mate cause of mental suffering, as certain and definite as 
 when the injured person has sustained a physical injury 
 to his person, especially if the effect is physiological in its 
 nature, or if the subject matter of the telegram is such as 
 to apprise the telegraph company, and to cause mental 
 suffering, if the company neglects to perform its duty 
 with promptness.' 
 
 The decisions upon this question are numerous, and it 
 is deserving of more than passing notice, with what con- 
 tention the question is argued pro and con by the courts 
 and how thoroughly just and absolutely right each court 
 maintains it is, in the conclusion reached by it. The 
 
 1 Western Union Telegraph Co. v. Adams, 75 Tex., 531, 16 Am. St. Rep. 
 
 920. 
 
i 116 MENTAL SUFFERING. 218 
 
 Texas^ decisions were first criticised with considerable 
 vehemence, when the Supreme Court of that state made 
 its first decision and innovation upon the common law. 
 Since then, and it is only comparatively a few years, the 
 growth of decisions has been in recognition of the Texas 
 doctrine, until now there is a respectable number of au- 
 thorities accepting the rule that damages for mental suf- 
 fering for negligently transmitting and delivering of a 
 telegram may be recovered. 
 
 It is my opinion that this rule is based upon a sound 
 doctrine and upon a right reason, if a person will give 
 the question a candid and careful consideration, guarded 
 by certain rules and limitations. It is true that it may 
 be easy to run into the field of pure speculation and 
 theory, but this would be true of damages for any mental 
 suffering, and against these the courts should be able to 
 guard, direct, and protect. 
 
 ^ \ My conclusion is based upon the reason that a great 
 deal of mental suffering may be caused by the negligence 
 of a telegraph company or the failure to transmit and de- 
 liver a telegram promptly, and if such negligence is the 
 proximate cause of such mental suffering, then such 
 company should respond in such damages as may have 
 been produced by such negligence. There are two 
 classes of persons who are entitled to bring an action for 
 damages for mental suffering caused by the negligence 
 of the telegraph company, to-wit: 
 First — The sender of the telegram.' 
 Second — The addressee of the telegram.^ 
 The test of this question is whether there is any duty 
 imposed upon a telegraph company to transmit and de- 
 liver promptly a telegram couched in intelligent and 
 
 'Western Union Tel. Co. v. Strate- graph Co., 124 N. C, 459, 45 L. R. A. 
 meier,6Ind. App.,125; Reese v. Tele- 160 ; Havener v. Western Union Tel. 
 graph Co., 123 Ind., 291 ; Logan v. Co., 117 N. C. 540, 23 S. E. Rep., 437. 
 Telegraph Co., 84 111., 468 ; Western 2 Wadsworth y. Telegraph Co., 86 
 Union Tel. Co. v. Newhouse, 6 Ind. Tenn., 695, 6 Am. St. Rep., 864; Young 
 App. 422; Sherrill v. Telegraph Co., v. Telegraph Co., 107 N. Car. 370, 22 
 109 N. C, 527 ; West v. Telegraph Co., Am. St. Rep., 883; Thompson v. Tele- 
 93 Ala. 32 ; West v. Telegraph Co., 39 graph Co., 107 N. Car., 449 ; Chapman 
 Kan., 93; Western Union Tel. Co. v. v. Telegraph Co., 90 Ky., 265; Stuart 
 Henderson, 89 Ala., 510; Western v. Telegraph Co., 66 Tex., 580; Beas- 
 Union Tel. Co. v. Broesche, 72 Tex., ley v. Telegraph Co., 39 Fed. Rep., 181 ; 
 654; Western Union Tel. Co. v. Western Union Tel. Co. v. Cunning- 
 Cooper, 71 Tex., 507 ; Western Union ham, 99 Ala., 314 ; Lynne v. Telegraph 
 Tel. Co. V. Simpson, 73 Tex., 422; Co. 123, N. Car. 129. 5 Am. Neg. Rep., 
 Crosswell on Law relating to Elec- 85 ; Mentzer v. Telegraph Co., 93 
 tncity. Sec. 634-642 ; Cashion V .Tele- Iowa 752, 28 L R A 72 
 
219 MENTAL SUFFERING. 
 
 § 116 
 
 proper language. If so, and who will not admit that 
 there is such a duty imposed upon it, then any failure or 
 neglect on its part to perform such duty must render it 
 responsible for all damages sustained and caused by such 
 failure or neglect. It is immaterial whether the action 
 grows out of the violation of a contract or not. Nearly 
 all actions for damage for a personal injury are based 
 upon an express or implied contract. All passengers 
 upon railways and steamboats who are injured by negli- 
 gence of the common carrier ai-e transported upon an 
 express contract for safety and promptness as to de- 
 livery and time. Employees of a corporation work on an 
 implied contract that safe machinery will be furnished. 
 From this relation arises aduty the negligent performance 
 of which gives a right of action in tort, when inquiry oc- 
 curs. 
 
 What was said by Caldwell, J., in Wadsworth v. Tele- 
 graph Co., 86 Tenn. 696, applies with force in illustration 
 of this question: "The messages in question were 
 couched in decent language, and were lawful in their 
 purposes. Such being true, Walden had a right to send 
 them and Mrs Wadsworth (the plaintiff) a legal right 
 to receive them ; and it was the plain duty of the defend- 
 ant to deliver them promptly. Its dereliction of duty 
 and violation of her legal right, as averred in the declara- 
 tion and confessed in the demurrer, unquestionably gave 
 her a right of action. ' Every infraction of a legal right, 
 in contemplation of law, causes injury. This is practi- 
 cally and legally an incontrovertible proposition. If the 
 infraction is established, the conclusion of damages in- 
 evitably follows. " ' 1 Sutherland on Damages, 2. The 
 court further says : " The plaintiff having a clear right 
 of action for some damages, as we have already 
 seen, may maintain her action and recover all the dam- 
 age she may show herself to have sustained by reason of 
 the wrongful act of the defendant; and in ascertaining 
 the amount thereof, all proven elements of damage 
 admissible in either form of action, (action ex delicto 
 and ex contractu) are for the consideration of the jury." 
 
 In an opinion filed by Tierney, C. J., in the same case, 
 he says : "Some damages may be recovered in any sort 
 of ease when the law has been violated " and adds: " The 
 love of a sister for her brother and her desire to be with 
 him in his last moments and after death care for his body 
 and its burial are not mere sentiments. They are the 
 
§ 116 MENTAL SUFFERING. ' 22a 
 
 promptings and commands of nature, affection, humanity, 
 and duty and should not be trifled with by indifferent 
 and heartless operators in telegraph oflflees." 
 
 Shearman and Redfleld say: " In case of delay or total 
 failure of delivery of messages relating to matters not 
 connected with business, such as personal or domestic 
 matters, we do not think that the company in fault ought 
 to escape with mere nominal damages on account of the 
 want of stript commercial value in such messages. Delay 
 in the announcement of a death, an arrival, the straying 
 of a child and the like, may often be productive of an 
 injury to the feelings which cannot be easily estimated 
 in money, but for which a jury should be at liberty to 
 award fair damages. Yet in such cases the damages 
 should not be enhanced by evidence of any circumstances 
 which could not have reasonably been anticipated as 
 probable from the language of the written message."^ 
 
 In the case of Wadsworth v. Telegraph Co., supra, 
 after an elaborative discussion of the question, the court 
 held: Where a telegram was sent to a sister containing 
 information of the serious illness of her brother, and 
 subsequently another one was sent informing her of his 
 death, and by reason of the negligence of the company 
 was not promptly delivered, and the brother was de- 
 prived of that attention at her hands which he would 
 have received but for such negligence, and she is in con- 
 sequence unable to make preparation for his funeral, she 
 is entitled to the damages for the wrong done to her 
 affections and feelings. 
 
 In the case of Younsr v. Telegraph Co., 107 North Car. 
 370, 22 Am. St. Rep., 883, an action was brought by the plain- 
 tiff to recover damages against the telegraph company 
 for its failure to deliver promptly the following message: 
 "Greenville, S. C, February 26, 1889. To J. T. Young, 
 New Berne, N. C. : Come in haste; your wife is at the 
 point of death. J. W. Rice." The message was re- 
 ceived the next day by the company at New Berne, and 
 could have been delivered within a few moments after its 
 receipt, as the business and residence of the plaintiff 
 were well known to the company, being within twelve 
 hundred feet of its ofBce. The plaintiff had no notice of 
 the message for seven days, when, being informed by 
 letter, he went to the company ' s office and recei ved it. He 
 
 1 Sherman and Redfield, »Sec. 605, p. 662. 
 
221 MENTAL, SUFFERING. J 116 
 
 was during all this time at his place of business. In the 
 interim his wife died and was buried. Had he been 
 promptly notified, he could have been present during the 
 last hours of her sickness, and consoled her and at- 
 tended her funeral. 
 
 The first question raised was whether a. receiver of 
 a telegram who is not a party to the contract could 
 maintain an action for its breach. This question is 
 answered in the affirmative, quoting from Shearman and 
 Redfield on Negligence, Sec. 560, to-wit : " We think, 
 therefore, upon the principle of these decisions, a tele- 
 graph company is responsible for its negligence to a 
 person to whom a message is addressed, as well as to 
 the sender. If it were not so, it is obvious that the 
 receivers of telegrams would often receive great damage . 
 without any means of redress." ^ 
 
 The reasons stated for this rule are given as follows : 
 
 "1. A teleg-raph company is a public agency and respon- 
 sible as such to any one injured by its negligence, or at 
 least it is the common agent of sender and receiver and 
 responsible to each for any injury sustained by them, 
 respective]}', by its negligence. 
 
 "2. In a case like this, the receiver is the beneficiary 
 of the contract, and the injury, if any, caused by the com- 
 pany's negligence must be to him. 
 
 "3. The message is the property of the party 
 addressed, in analogy to a consignee of goods. 
 H"4. Upon the face of the message, such as this, the 
 sender is the agent of the receiver, and the latter as the 
 principal can maintain an action for breach of the con- 
 tract or for a tort if injury is done him by negligence in 
 performance of the duty contracted for. The company's 
 employment is of a public character, and it owes the duty 
 of care and good faith to both sender and receiver. 
 
 " Upon authority and reason, we think it clear that the 
 plaintiff could maintain the action, and whether it is an 
 action ex contractu for breach of the contract for speedy 
 and safe transmission, or ex delicto for negligence and 
 violation of the duty owed as a public corporation, or as a 
 common sender and receiver, at least nominal damages 
 could be recovered."" 
 
 'Wadsworth v. Telegraph Co.. 86 v. Drybury, 35 Pa. St., 298, 78 Am. 
 
 Tenn., 865 ; Elwood v..Same 45 N. Y. Dec. 338. 
 
 549, 6 Am. Rep. 140; Ellis v. Same, 23 Sutherland on Damages, 314. 
 
 13 Allen, 227; New York, etc. Tel. Co. 
 
g 116 MENTAL SUFFERING. 222 
 
 The next question discussed was whether the plaintiff 
 could recover damages for mental pain and suffering- 
 when there was no physical injury. 
 
 The court quotes the rule of Shearman and Redfleld 
 heretofore cited, and adopts it. It also quotes from a 
 large number of decisions. It says : "It is a matter of 
 importance to the public that it should be settled what 
 legal obligation, if any, rests upon the telegraph com- 
 panies to deliver promptly messages of a social nature^ 
 not concerning pecuniary transaction. To many, and in 
 many instances they are far more important. If no 
 pecuniary damages can be recovered for a breach of the 
 duty to deliver such messages, beyond the recovery of 
 the petty sum paid for transmission, the usefulness and 
 value to the public of such corporation will be materially 
 diminished. * * * Damages for injury to the feelings, 
 such as mental anguish or humiliation, are given though 
 there may be no physical injury, in many cases. They 
 are allowed where a party is wrongfully put off a train; 
 in action for breach of promise of marriage; in actions 
 for slander and libel; in actions for malicious arrest and 
 prosecution; in actions for false imprisonment; for ille- 
 gally suing out an attachment; for crim. con. and for 
 seduction; and in t>ther cases. Damages for injured feel- 
 ings were also allowed where a conductor kissed a female 
 passenger against her will. In actions by a father for 
 seduction of a daughter, by fiction of law, the damages 
 are laid per quod servitium amisit, but the recovery is 
 generally out of all proportion to any possible valuation 
 of services; and it is well understood that in fact com- 
 pensation is not given for them, but for the wounded and 
 outraged feelings of the parents. We see, therefore, no 
 reason tvhy the doctrine of compensation for injury to feel- 
 ings should not embrace a case like the one before us. 
 
 "When a passenger, while traveling on the ears, is in- 
 jured by a collision or other negligence, though there is 
 a breach of the contract of safe carriage, yet the plaintiff 
 can elect to hold the carrier liable in tort for the negli- 
 gence which caused the injury. 
 
 "By analogy, when there is an injury caused by negli- 
 gence and delay in the delivery of a telegram, the part^n 
 injured is entitled to sue in tort foi* the wrong done. 
 It seems to us that this action is in reality in the na- 
 
223 • MENTAL SUFFERING. 
 
 ? 116. 
 
 ture of tort for the negligence, and that, as is usually the 
 case in such action, the plaintiff is entitled to recover, in 
 addition to nominal damages, compensation for the actual 
 damages done to him, and that mental anguish is actual 
 damage. It is very truthfully and appropriately re- 
 marked hj a learned author that ' the mind is no less a 
 part of the person than the body, and the sufferings of 
 the former are sometimes more acute and lasting than 
 those of the latter. Indeed the suffering of each fre- 
 quently, if not usually, act reciprocally on the other.' 3 
 Sutherland on Damages, l'(30. And Cicero (who certainly 
 may be quoted as an authority among lawyers) says in 
 his Eleventh Phillippie against Anthony: 'Nam qua 
 major vis est animi quam corporis hoc sunt graviora ea 
 quae concipiunter animo quam ilia quae corpm^e.^ 'h'or as 
 the power of the mind is greater than that of the body, 
 in the same way, the sufferings of the mind are more 
 severe than the pains of the body. ' 
 
 "The difficulty of measuring damages to the feelings 
 is very great, but the admeasurement is submitted to the 
 jury in many other instances, as above stated, and it is 
 better that it should be left to them, under the wise su- 
 pervision of the presiding judge, with his power to set 
 aside excessive verdicts, than, on account of such diffi- 
 culty, to require parties injured in their feelings by the 
 negligence, the malice or wantonness of others, to go with- 
 out remedy. * * * Our own opinion, however (cer- 
 tainly when no malice is alleged), is, that they (damages) 
 are awarded as compensation to the plaintiff for the 
 wrong he has sustained in the mental anguish needlessly 
 inflicted on him hy the negligence of the defendant, 
 Sedgwick v. Damages, 35." 
 
 In Chapman v. Telegraph Co., 90 Ky., 265, it was held 
 that the plaintiff could recover damages for delay in the 
 delivery of a message announcing the illness and death of 
 the plaintiff's father. The court says : "Many of the text 
 writers say that a person cannot recover for mental 
 anguish alone, and that he can recover such damages only 
 where he is entitled to recover some other damages upon 
 some other ground. It will be generally found, however, 
 that they are speaking of cases of personal injury. If a 
 telegraph company undertakes to send a message, and it 
 fails to use ordinary diligence in doing so, it is certainly 
 liable for some damage. It has violated its contract; and 
 
§ 116 MENTAIv SUFFERING. 224 
 
 whenever a party does so, he is liable at least to some 
 extent. Every infraction of a legal right causes injury, 
 in contemplation of law. The party being entitled, in 
 such a case, to recover something, why should not an 
 injury to the feelings, which is often more injurious than 
 a physical one, enter into the estimate ? Why, being 
 entitled to some damage bj'' reason of the other party's 
 wi'ongful act, should not the complaining party recover 
 all the damage arising from it ? It seems to us that no 
 sound reason can be given to the contrary. The busi- 
 ness of telegraphing, while yet in its infancy, is already 
 of wonderful extent and importance to the public. It is 
 growing and the end cannot yet be seen. A telegraph 
 company is a quasi public agent, and as such it should 
 exercise the extraordinary privileges accorded to it with 
 diligence to the public. If in matters of mere trade it 
 negligently fails to do its duty, it is responsible for all 
 the natural and proxi mate damage. Is it to be said or held 
 that, as to matters of far greater interest to a person, it 
 shall not be, because feelings or affections only are 
 involved? If it negligently fails to deliver a message 
 which closes a trade for one hundred dollars, or even less, 
 it is responsible for the damage. It is said, however, 
 that if it is guilty of like fault as to a message to the hus- 
 band that the wife is dying, or to the father that the son 
 is dead, and will be buried at a certain time, there is no 
 responsibility save that which is nominal. Such rule at 
 first blush merits disapproval. It would sanction the 
 company in wrongdoing. It would hold it responsible in 
 matters of the least importance and suffer it to violate 
 its contracts with impunity as to the greater. It seems 
 to us that both reason and public policy requires that it 
 should answer for all injury resulting from its negh- 
 genee, whether it be to the feelings or the purse, subject 
 only to the rule that it must be the direct and proximate 
 consequence of the act. The injury to the feelings 
 should be regarded as a part of the actual damage, and 
 the jury be allowed to consider it. If it be said that it 
 does not admit of accurate pecuniary measurement, 
 equally so may it be said of any case where mental 
 anguish enters into the estimate of injury for a wrong, 
 ^nd it furnishes no sufficient reason why an injured 
 party should not be allowed to look to the wrongdoer 
 for reparation. If injury, to the feelings be an ele- 
 
225 MENTAL SUFFERING. 
 
 HI 
 
 ment of damage to actual damages in slander, libel, and 
 breach of promise cases, it seems to us that it should be 
 equally so considered in cases of this character. If not, 
 then most grievous wrongs maybe inflicted with impu- 
 nity; legal insult added to outrage by the party, by offer- 
 ing one cent, or the cost of the telegram, as compensa- 
 tion to the injured party. Whether the injury be to the 
 feelings, or pecuniary, the act of the violator of a right 
 secured by contract has caused it. The source is the 
 same, and the violator should answer for all the proxi- 
 mate damages. ' ' 
 
 In the case of William Reese v. Telegraph Co., 123 
 Ind. 294, 7 L. R. A. 583, the court lield that a message 
 reading: "My wife is very ill, not expected to live" is 
 sufficient to inform the company that mental anguish will 
 probably result from its failure to deliver the message 
 promptly; and that mental suffering is a ground for the 
 recovery of substantial damages against the company on 
 account of any such failure or neglect. The message lay 
 in the ofiice of the telegraph company for more than 
 twenty days and was never delivered until called for. 
 
 The court says: "Although the telegram had no rela- 
 tion to any business transaction which would have 
 involved dollars and cents merely, this did not justify 
 the appellee in neglecting its duty. It had undertaken 
 for a valuable consideration to deliver the message 
 promptly, and its failure so to do, or to make reasonable 
 effort in that direction, was negligence, and a violation of 
 its undertaking. The diligence which a telegraph com- 
 pany is required to use in the delivery of a message, will 
 be determined, to some extent from the character and 
 importance of its message. Upon humane grounds, 
 messages like the one here involved should be promptly 
 delivered, and should be regarded as of more importance 
 to the parties than mere business messages, and in 
 promptness of delivery should have preference over 
 messages of the latter class. * * * From the infor- 
 mation it had before it, when it entered into the under- 
 taking, the appellee was bound to know that mental 
 anguish might, and most probably would, come to some 
 person in case it failed to act promptly in transmitting 
 and delivering the dispatch, and therefore such a result 
 was contemplated when the message was delivered by 
 
 15 
 
g 111 MENTAL SUFFERING. 226 
 
 the appellant to appellee's agent at Jamestown, and is 
 within the undertaking. * * * The appellant having 
 suffered great mental anguish, because, as he alleges, of 
 the failure to promptly deliver the message, it would be 
 a harsh rule which would deny to him all redress except 
 the mere pittance which he paid to have the telegram 
 transmitted and delivered. Some of the authorities seek 
 to draw a distinction, as to the right to recover damages 
 for mental suffering, between cases where there may be 
 a recovery for pecuniary loss, and eases where there is 
 or can be no pecuniary loss, to which class the present 
 action belongs. With this distinction we have no sym- 
 pathy, and confess we can see no good reason for it to 
 rest upon. If a telegraph company undertakes to trans- 
 mit and deliver promptly a message wherein dollars and 
 cents are alone involved, and its negligence occasions loss, 
 it is conceded by all the authorities that it may be com- 
 pelled to respond in damages. Why ? Because it has neg- 
 ligently broken its agreement, or as is sometimes said, 
 failed to perform a duty which it owed to the sender of 
 the message or the person to whom it is ad-dressed, as the 
 case may be. For the same pecuniary consideration it 
 undertakes to transmit and deliver a message informing 
 a husband of the dangerous illness of his wife, the wife 
 of her husband, the parent of the child, the child of the 
 parent, and it negligenth^ fails to deliver the telegram, 
 and, as a result, the relation dies without having the 
 comforting presence of a husband, wife, father, mother, 
 son, or daughter with all the benefit, physical and mental, 
 which would follow. Is it to be said that under such cir- 
 cumstance, the most that the telegraph company is liable 
 for is nominal damages because of the greater mental 
 anguish suffered by the sender of the telegram, who may 
 be the father, mother, husband, wife, or child ? In our 
 judgment no such rule can or should prevail. In 
 failing to promptly deliver the telegram, the telegraph 
 company negligently fails to perform a duty, which it 
 owes to the sender of a telegram, and should be held lia- 
 ble -for whatever injury follows as the proximate result 
 of its negligent conduct. It is not a mere breach of con- 
 tract, but a failure to perform a duty which rests upon it 
 as a servant of the public. In our opinion, the appellant 
 is entitled to recover damages for the mental suffering 
 which he has endured, and his measure of damages is the 
 
227 
 
 MENTAL SUFFERING. 
 
 § 111 
 
 amount paid for the transmission of the message, and in 
 addition what would seem to be just as a compensation 
 for his mental anguish." 
 
 There are a large number of Texas cases where this 
 same doctrine was enunciated and aflBrmed. It is unnec- 
 essary to cite or quote from all of those cases. ^ 
 
 V. Western Union Tel. Co., 55 Tex., 
 310,40 Am, Rep., 805), and the two 
 Levy cases (Galveston, etc., Ry. Co. v. 
 Levy, 69 Tex., 643, 46 Am. Rep., 278, 
 and Galveston, etc., Ry. Co. v. Levy, 
 59 Tex., 563), the case of Hays v. 
 Houston, etc., Ry. Co., 46 Tex., 272, 
 and other authorities.uses the follow- 
 ing language : ' But it is claimed 
 that the mental is an incident to the 
 bodily pain, and that without the 
 latter the former cannot be consid- 
 ered as actual damages. In cases of 
 bodily injury the mental suflFering 
 is not more directly and naturally 
 the result of the wrongful act 
 than in this case, not more obvi- 
 ously the consequences of the wrong 
 done than in this case. What differ- 
 ence exists to make the claimed dis- 
 tinction ? That it is caused by and 
 contemplated in doing the wrongful 
 act is the principle of liability. The 
 wrongdoer knows that he is doing 
 this damage when he afflicts the mind 
 by withholding the message of mor- 
 tal illness as well as by a wound to 
 the person.' The conclusion derived 
 from the opinion in the case from 
 which the foregoing extract is taken 
 is, that injury to feelings caused by 
 a failure to deliver a message relat- 
 ing to domestic affairs, where the 
 failure is the result of negligence on 
 the part of the company or its serv- 
 ants, is an element of actual dam- 
 age. The same principle was decided 
 by the commission of appeals in the 
 case of Miller (Wilson) v. Railway 
 Co., 69 Tex., 739, and it was held that 
 the right to recover would not de- 
 pend upon the degree of negligence 
 causing the injury. If the inexcusa- 
 ble negligence of the defendant's 
 servants is found to be the proximate 
 cause of the injury, damages may be 
 recovered, commensurate with the 
 
 ' In the case of Western Union Tel- 
 egraph Co. V. Moore, 76 Texas, 66; 18 
 Am. St. Rep., 25, the court held that 
 a message delivered for transmission 
 containing the words: " Billy is very 
 low, come at once," is sufficient to 
 apprise ihe company that the mes- 
 sage refers to a near relative to whom 
 it is addressed, and of the fact that 
 mental suffering is likely to result 
 from a lailure to transmit the mes- 
 sage with diligence and dispatch. It 
 says : " In the case of Western Un- 
 ion Telegraph Co. v. Adams, 75 Tex , 
 531 ; 16 Am. St. Rep ,920, it was held, 
 in effect, that a recovery could be 
 had lor mental suffering resulting 
 from a failure to deliver with dili- 
 gence a telegraphic message an- 
 nouncing the sickness or death of a 
 relative, provided the language em- 
 ployed in the message was reason- 
 bly sufficient to put the company 
 upon inquiry as to the relationship 
 between such person and the party 
 addressed, and to apprise them that 
 its object was to afford the party an 
 opportunity to attend upon his rela- 
 tive in his last sickness or to be pres- 
 ent at his funeral in case of death." 
 The same principle was enunciated 
 in the case of Western Union Tele- 
 graph Co. V. Feegles, 75 Tex., 537, 
 and Western Union Telegraph Co. v. 
 Broesche, 72 Tex., 664; 13 Am. St. 
 Rep., 843. 
 
 In Western Union Tel. Co. v. 
 Cooper, 71 Tex.. 507, 10 Am. St. Rep., 
 772, the court says : " Appellant 
 claims that its demurrers to plain- 
 tiff's petition should have been sus- 
 tained because injury to feelings, 
 disconnected from all actual injury, 
 are exemplary damages, and the facts 
 alleged are not sufficient to recover 
 exemplary damages. The very ques- 
 tion raised here was before the Su- 
 preme Court in the case of Stuart v. 
 Telegraph Co., 66 Tex.,58C, 59 Am. 
 Rep ,623; and the court after dis- 
 cussing the So Relle case (So Relle 
 
 injurv. 
 
 In Western Union Tei. Co. v. Na- 
 tions, 82 Tex., 539, 27 Am. St. Rep. 914, 
 it was held : Where a telegraph com 
 
§ 111 
 
 MENTAL SUFFERING. 
 
 228 
 
 One of the recent leading cases upon this question is 
 Mentzer v. Western Union Telegraph Co., 93 Iowa, 752, 
 28 L. R. A. 72. The opinion is an elaborate, logical and 
 forcible discussion of the question in favor of allowing 
 damages for mental suffering. 
 
 The facts in this case are briefly these : That on the 
 11th day of April, 1893, one H. Dorn delivered to the 
 defendant at Creston, Ohio, the following telegram : 
 ''Creston, Ohio, 11, 1892. To J. B. Msntzer, Cedar 
 Rapids, Iowa: Mother dead. Funeral Wednesday. An- 
 swer if coming or not. H. Dorn." That Dorn paid the 
 regular charges for transmitting the same, and at the 
 time of the delivery of the message informed defendant's 
 employe in charge of the office at Creston that it was plain- 
 
 pany receives a prepaid message from 
 a mother to her son consisting of the 
 words, "your step-father died this 
 morning," with notice that it is im- 
 portant that it be sent at once, she 
 may recover damages for the mental 
 anguish sustained from the non- 
 delivery of the message. 
 
 In Western Union Tel. Co. v. 
 Broesche, 72 Tex., 658, 53 Am. St. 
 Rep., 843, the telegram was : " Mrs. 
 Broesche is dead, will bring corpse on 
 train to-night." It was held: "It 
 was sent for the benefit of the sender 
 and the court said it was too obvious 
 to require explanation " 
 
 In Potts V. Western Union Tel. Co., 
 82 Tex., 545, a prepaid telegram was 
 delivered to defendant at Detroit, 
 Texas, to be sent to Sulphur Springs, 
 Texas. The message was from a 
 sister to her brother and read as 
 follows : " Come at once; Mr. Potts 
 is not expected to live " The tele- 
 gram was never delivered. Mr. Potts 
 mentioned therein died three days 
 after it was sent. The person to 
 whom it was addressed did not reach 
 the sender until seven days after the 
 message was received by the com- 
 pany. It was held : In an action 
 against the telegraph company for 
 its negligence in failing to deliver 
 the message, that the message on its 
 face Showed its importance, charging 
 the company with notice of whatever 
 would have been developed by in- 
 quiry, and that the sender was 
 entitled to recover damages for the 
 mental suffering sustained by reason 
 
 of her not having her brother with 
 her during her deep distress at the 
 death of her husband, all of which 
 was caused by the gross negligence 
 of the defendant's company in failing 
 to promptly deliver said message. 
 The following authorities were cited 
 in support thereof : Gulf, etc. Tele- 
 graph Co. V. Richardson, 79 Tex., 649 ; 
 Stuart V. Telegraph Co., 66 Tex., 580, 
 586, 59 Am. Rep., 623; Western Union 
 Tel. Co. V. Moore, 76 Tex., 66, 18 Am. 
 St. Rep., 2.') ; Western Union Tel. Co. 
 V. Adams, 75 Tex., 531, 16 Am. St. 
 Rep., 920; Western Union Tel. Co. v. 
 Feegles, 75 Tex., 537 ; Western Union 
 Tel. Co. V. Simpson, 73 Tex.. 422; 
 Western Union Tel. Co., v. Rosen- 
 treter, 80 Tex, 406; Erie Telegraph 
 etc., Co. V. Grimes, 82 Tex., 89. 
 
 In Beasley v. Telegraph Co., 39 Fed 
 Rep., 181, it was held, that a husband 
 could recover for disappointment 
 and anguish caused by his being 
 unable to be present at his wife's 
 death-bed owing to the failure of the 
 defendant to deliver a telegram. But 
 Maxey, J., in his charge to the jury, 
 said : " It is my duty to say to you 
 in reference to the question of dam- 
 ages, that great caution ought to be 
 observed in the trial of cases like 
 this, as it will be so easy and natural 
 to confound the corroding grief occa- 
 sioned by the loss of a wife with the 
 disappointment and mental anguish 
 occasioned by the fault or negligence 
 of the company, for it is only the 
 latter for which a recovery may be 
 had." 
 
229 MENTAL SUFFERING. ^ 111 
 
 tiff's mother who was dead. That the message reached de- 
 fendant's office at Ledar Rapids at 9:16 A. M., April 11, 
 1892, but through the negligence and carelessness of 
 defendant's employes was not delivered until 9 P. M., 
 April 13. The plaintiff inquired at defendant's office at 
 Cedar Rapids at about 7 o'clock in the evening of April 
 11th, and was informed that no telegram had been re- 
 ceived for him. Jt was shown beyond dispute that plain- 
 tiff's mother died at Creston, Ohio, on April 11, 1892, and 
 was buried on April 13, and that by reason of the failure 
 of defendant to deliver the message informing plaintiff of 
 her death, he was prevented from attending her funeral^ 
 
 With reference to the measure of damages the court in- 
 structed the jury: " If you find for plaintiff, then you will 
 allow him for the amount he paid for messages, if any; 
 for loss of time caused by the failure to deliver said mes- 
 sage and rendered useless thereby, if any ; and in addi- 
 tion thereto such an amount as you may find from the 
 evidence to be just and reasonable to compensate plain- 
 tiff for the damage sustained by reason of mental an- 
 guish suffered by him by reason of failure to deliver said 
 message, if any. But you should not allow plaintiff any- 
 thing for loss of time, or expense in going to Creston, O., 
 nor should you allow plaintiff for the money paid by Dorn 
 for the message in question." The court, after disposing 
 of some minor questions, says : "We have then the ques- 
 tion as to whether damages for mental suffering can be 
 recovered in actions of this kind, independent of any 
 physical injury, where the company is advised of the 
 character of the message and negligently fails to deliver 
 it. The question has been variously decided by the 
 different courts of this country. * * * The following 
 cases answer the proposition in the affirmative.' While, 
 perhaps, equally large a number answer it in the nega- 
 
 1 Relle V W. U. T. Co., 55 Tex. 308 ; 92 Tenti., 694 ; Reese v. Western U.. 
 
 40 Am. Rep. 805: Stuart v. Same, 66 T. Co., 12S Ind., 294, 7 L. R. A.,.'i8;i; 
 
 Tex,580, 59Am. Rep.,fi23;Gulf r. & W. U. T. Co. v. Stratetneir. 6 Ind.,. 
 
 S. F. R. Co. V. Wilson, 69 Tex, 739; W. App , 125 ; Same v Newhouse, Ibid. 
 
 U. T. Co. V. Broesrhe, 72 Tex. , 654 ; 422 ; Same v Henderson, 89 Ala , 510 ;. 
 
 Same v Simpson, 73 Tex., 423 ; Same Thompson v. W. U. T. Co 106 N^ C, 
 
 V. Adams, 75 Tex., 531,6 L.R. A, 844; 549; Y.mngv.Same, 10/ N. <-., 370, 9' 
 
 Womack v. W U. T. Co., Tex , 22 S. L. R. A , 669; Thompson v. Same, 107 
 
 W Rep 417 ■ W U. T. Co v. Carter. 2 N. C, 449 ; Chapman v. Same, 90 Ky.y 
 
 Tex. Civ. Aop-. 624; Wadsworth v. 265; W. U. T Co. v Stephens, 2 Tex. 
 
 W. U T. Co., 86 Tenn., 695; New- Civ. App , 129; Logan v. W. U.T.Co. 
 
 port News & M. V. R. Co. v. GrifBn, 84 111., 46iS. 
 
g 111 MENTAL SUFFERING. 230 
 
 tive/ Of the text writers Shearm. & Red. Ne^., p. 
 692; Thompson on Electricity, section 379 ; 3 Smith Dam., 
 sections 979-980, inclusive; 2 Sedgw. Dam., section 894. 
 And others held that such damages may be recovered, 
 ■while Wood's Mayne Dam., p. 74 ; Cooley Torts, 271, and 
 others seem to deny it. 
 
 "The general rule which has come to us from England, 
 no doubt, is that mental anguish and suffering resulting 
 from negligence, unaccompanied with injuries to the per- 
 son cannot be made the basis of an action for damages. 
 See Lynch v. Knight, 9 H. L. Cas. 577; Hobbs v. London 
 ■& S. W. R. Co., 10 Q. B., 122. And doubtless this is the 
 rule to-day in all ordinary actions, either ex contractu or 
 ■ex delicto. But it must be remembered that there are 
 ■exceptions to the rule and that the telegraph as a means 
 ■of conveying intelligence, is comparatively a new inven- 
 tion. The general rule above referred to was adopted 
 long before the electric current was harnessed and made 
 subservient to the will of man. One of the crowning 
 glories of the common law has been its elasticity and its 
 adaptability to new conditions and new state of facts. It 
 has grown with civilization and kept pace with the march 
 of events so that it is as virile to-day, in our advanced 
 state of civilization, as it was when the race was emerg- 
 ing from the dark ages of the past. Should it ever fail 
 to be adjustable to the new conditions which age and ex- 
 periences bring, then its usefulness is over, and a new 
 social compact must be entered into. J 
 
 "Let us look at this query, then, upon principle and 
 see if such damages are recoverable. And first we must 
 determine the nature, object and purpose of telegraph 
 companies; their legal status and duties to the public, 
 and to those with whom they do business; then the 
 nature of the action; and finally the elements of damages 
 which may be recovered, either by reason of their breach 
 of contract or because of their failure to perform their 
 duties, and see if there is any reason known to and rec- 
 
 i9^^S'7't.^°'T;^°°'''^'^-^--'^-' ^'^ ^- ^' ■*"• ■*^°; Connell v. Sa^, 
 
 432, 57 Fed. Rep. 471, 21 L. R. A., 706 
 Russell V. Western Union Tel. Co 
 3 Dak., 315 ; West v. Same, 39 Kas. 
 93; Western U. Tel. Co. v. Rojjers 
 «8 Miss., 748, 13 L. R. A., 859 ; Chap 
 
 116 Mo., 34, 20 L. R. A., 172; Inter- 
 natiopal Ocean Tel. Co. v. Saunders, 
 32 Fla.,434, 21 L. R. A, 810; Sum- 
 merfield v. West. U. Tel. Co., 87 
 Wis., 1 ; Francis v. Same, 58 Minn., 
 
 man v. West. U. Tel. Co., 88 Ga., 763, 252 ; 25 L. R. A., 406. * 
 
231 MENTAL SUFFERING. § 111 
 
 ognized by the law why such damages should not be 
 allowed. * * * 
 
 "What then are the nature, purpose and object of the 
 telegraph, and what is its legal status? It is a system of 
 appliances conducting the electric cur rent or fluid , used for 
 the purpose of transmitting intelligence, thought, or 
 news from one place to another. Somewhat akin is it to 
 a common carrier in this: that they are both carriers 
 and must serve all alike; but the carrier transports per- 
 sons or goods, while the telegraph conveys intelligence. 
 The very object of the invention is to quickly convey in- 
 formation from one to another, upon which that other may 
 act. It is a public use, and for that reason eminent 
 domain may be exercised in its behalf, and is engaged in 
 business affecting public interests to such an extent that 
 the state may regulate the charges of companies engaged 
 in the business. It is not an insurer of the accuracy or 
 of the delivery of messages intrusted to it, but it is so far 
 a common carrier as to be bound to serve all people alike, 
 and to exercise due care in the discharge of its public 
 duties. Nor can it provide by contract for exemption 
 from liability from the consequences of its own negli- 
 gence. Enough has been stated to show that it owes a 
 duty to all whom it attempts to serve independent of the 
 contractual one entered into when it receives its mes- 
 sages. Telegraph companies are held then to the exer- 
 cise of due care, and for negligence either in sending or 
 delivering messages, are liable to any person injured 
 thereby for all the damages he may sustain. 
 
 " We have stated these rules in order to sho^ that one 
 who is injured by their neglect of duty may maintain an 
 action, either ex contractu or ex delicto for the injuries 
 sustained. The rule no doubt is as announced by Judge 
 Cooley in his work on Torts, p. 104: ' In many cases an 
 action as for tort, or an action for a breach of contract 
 may be brought by the same party on the same state of 
 facts. This at first may seem in contradiction to the 
 definition of a tort as a wrong unconnected with contract, 
 but the principles which sustain such action will enable 
 us to solve the seeming difficulty. * * * There are 
 also, in certain relations duties by law, a failure to per- 
 form is reo-arded as a tort, though the relations them- 
 selves may be formed by contract covering the same 
 ground. * * * Thus for breach of general duty jm- 
 
? ill 
 
 MENTAL SUFFRRING. 232 
 
 posed by law, because of the relation one form of action 
 may be brought, and for the breach of contract another 
 action may be brought.' * * * Having determined 
 the nature and object, the status and relation of the de- 
 fendant company, we turn to the verdict of the jury and 
 find that not only did the defendant break its contract, 
 but that it was guilty of negligence as well, and that 
 under all known rules of law, plaintiff is entitled to some 
 damages. Defendant insists they are simply nominal, 
 and plaintiff contends that he has suffered acute and 
 actual damages for which he should be compensated. The 
 general rule for breach of contract comes down to us 
 from the opinion of Hadley v. Baxendale, 9 Exch., 'Ml, and 
 is as follows: 'When two parlies have made a con tract, 
 which one of them has broken, the damages which the 
 other ought to receive in respect of such breach of con- 
 tract should be such as may fully and rea,sonably be con- 
 sidered either as arising naturally — that is, according to 
 the usual course of things — from such breach of contract 
 itself, or such as may reasonably be supposed to have 
 been in the contemplation of both parties at the time they 
 made the contract as the probable result of the breach of 
 it.' 
 
 "In actions for tort the rule is much broader. The uni- 
 versal and cardinal principle in such cases is that the 
 person injured shall receive compensation commensurate 
 with his loss or injury and no more. This includes dam- 
 ages not for such injurious consequences as proceed im- 
 m€*diately from the cause which is the basis of the action, 
 but consequential damages as well. These damages are 
 not limited or affected, so far as they are compensatory, 
 by what was in fact contemplated by the party in fault. 
 He who is responsible for a negligent act must answer 
 'for all the injurious results which flow therefrom, by ordi- 
 nary natural sequence, without the interposition of any 
 other negligent act or overpowering force.' Whether 
 the injurious consequences may have been, reasonably 
 expected to follow from the commission of the act is not 
 at all determinative of the liability of the person who 
 committed the act to the person suffering therefrom * 
 * * Under all the authorities it was the duty of the 
 defendant to transmit and deliver messages intrusted 
 to it without unreasonable delay ; and in failing to do so, 
 it becomes liable for all damages resulting therefrom. 
 
233 MENTAL SUFFERING. 
 
 i Ul 
 
 Coolej' Torts, 646, 647. Gray Communication by Tele- 
 graph, Sees. 81, 82, et. seg; Whart. Neg. Sec. 767. That a 
 person is entitled to at least nominal damages for the in- 
 fraction of the duty imposed upon a telegraph company 
 is conceded. And it must also be conceded that 
 every person desires to attend upon the obsequies 
 of his near relatives. And when able and anxious to 
 attend, he is, through the negligence of a telegraph com- 
 pany, not notified of their death in time to attend the 
 funeral, he naturally and almost inevitably suffers mental 
 pain and anguish. No man is so depraved but that he 
 •yet remembers his mother, and when able, will pay her 
 the last respect that is her due. In the case at bar it is 
 established that the defendant knew the nature of the in- 
 telligence it was to transmit, and also knew that, if it was 
 not delivered within a reasonable time, plaintiff was 
 likely to be greatly pained on account not only of not 
 knowing of the death of his mother until she was placed 
 under the ground, but also because of his inability to at- 
 tend the funeral on account of the delay. That the de- 
 fendant should reasonably have contemplated such re- 
 sults under the rule laid down in Hadley v. Baxendale is 
 clear. 
 
 "But it is insisted that damages for mental suffering 
 although contemplated by the parties cannot be recover- 
 ered for mere breach of contract. That such is the gen- 
 eral rule announced by the courts and that it is the rule 
 now in reference to all ordinary contracts must be con- 
 ceded. But it must be remembered that this rule grew 
 up at a time when there was no thought of the transmis- 
 sion of intelligence by electricity. Breaches of contract, 
 such as the one in question, were unknown to the common 
 law. The business of telegraphy has grown up within 
 comparatively recent years. But must we say that the 
 law furnishes no remedy because no case of the kind was 
 known to the common law ? If so, such law is no 
 longer aiiplicable to our present conditions. Re- 
 gard must be had, too, to the subject matter of 
 the contract. The message does not relate to prop- 
 erty. In such cases for breach of contract the law 
 furnishes adequate compensation. But it does relate to 
 the feelings, the sensibilities, aye, sometimes even to the 
 life of the individual. It does not affect his pocket book 
 seriously, but it does relate to his feelings, his emotions, 
 
§ 111 MENTAL SUFFERING. • 234 
 
 his sensibilities — those finer qualities which go to make 
 the man. Shall we say that in one ease, the law affords 
 compensation and in the other it does not? Instead of 
 goods which are conveyed by the defendant, it is intelli- 
 gence — thought. But it is said, no damages can be recov- 
 ered for failure to deliver intelligence, beyond the actual 
 amount paid for the message, or nominal damages, 
 although the addressee may endure the greatest of men- 
 tal pangs, notwithstanding the fact that such suffering 
 was in the contemplation of the parties at the time the 
 contract was made. Of course every breach of contract 
 is likely to cause some pain, but most of these contracts 
 relate to property and pecuniary matters, and in such 
 cases the law furnishes what has always been held to be 
 an adequate remedy for the pecuniary loss sustained. 
 Mental suffering has never been considered as within the 
 contemplation of the parties at the time the contract is 
 entered into, and recovery cannot be had therefor. But 
 few contracts have direct relations to the feelings and 
 sensibilities of the parties entering into them, and the 
 pain growing out of the ordinary breach of contracts 
 relating to property is entirely different from that suf- 
 fered from a death message. Sutherland Damag-es, See. 
 ,980. 
 
 "We find a well recognized exception to the general 
 rule, that damages cannot be had for mental anguish in 
 cases of breach of contract, in the action of breach of 
 promise for marriage, and the reason for this exception 
 is quite applicable here. In such cases the defendant in 
 making his ccmtract is dealing with the feelings and 
 emotions. The contract relates almost wholly to the 
 affections, and one is not allowed to so trifle with another's 
 feelings. He knows that at the time he makes the con- 
 tract that if he breaks it, the other will suffer great men- 
 tal pain, and the courts without exception have allowed a 
 recovery in such a ease. See Holloway v. Griffith, 32 
 Iowa, 409, 7 Am. Rep., 208; Royal v. Smith, 40 Iowa, 6J5. 
 The distinction is well pointed out in 1 Sutherland, Dam- 
 ages, Sec. 92. * * * Reverting now to the damages 
 which may be allowed if the action is treated as ex delicto, 
 and to the broader rule of damages in cases of tort, we find 
 that, m very many of these actions, damages are recover- 
 able for mental anguish. It is conceded bv appellant's coun- 
 sel that such damages may in certain cases be recovered, 
 
235 MENTAL, SUFFERING. § 111 
 
 but they insist that they are never recoverable unless 
 accompanied by some physical injury. It seems to us 
 that, when it is conceded that mental suffering may be com- 
 pensated for in actions of tort, the right of plaintiff to 
 recover is established. Damages for injuriestothefeelings 
 are given though there are no physical injuries where a 
 person is wrongfully ejected from a train. Shepard v. Rail- 
 way Co., 77 Iowa, 54. In actions for Slander. Terwilliger 
 v. Wands, 17 N. Y. 54, 72 Am. Dec. 420. For malicious 
 prosecution. Fisher v. Hamilton, 49 Ind., 341. b'or false 
 imprisonment. Stewart v. Maddox, 63Ind., 51. For crim. 
 con. and seduction and for assault. So damages for injures 
 feelings were allowed where a conductor kissed a 
 female passenger against her will. Croaker v. Railway 
 Co., 36 Wis., 657, 17 Am. Rep., 504. So likewise it had 
 been held that the removal of a body of a child from the 
 lot in which it was rightfully buried, to a charity lot, 
 gives the parent a right to recover for injury to his feel- 
 ings. Meagher v. Driscoll, 99 Mass., 281, 96 Am. Dec, 
 751. And a widow may recover for such suffering and 
 nervous shock, against the person who unlawfully muti- 
 lates the dead body of her husband, although no actual 
 pecuniary damages are alleged or proven. Larson v. 
 Chase, 47 Minn., 307, 14 L. R A., 85. See also Suther- 
 land, Damages, Sec. 979, and authorities cited for kin- 
 dred cases. 
 
 "The wrongs complained of in these eases all directly 
 affected the feelings, and injury thereto proximately 
 resulted. But not more so than in the case at bar, where 
 the injury to the feeling is apparent and suffering neces- 
 sarily followed This rule of necessity applies where the 
 feelings are directly affected by the nature of the wrong 
 complained of. It has no application to such mental suf- 
 fering as indirectly results from the commission of every 
 tort." ^ . . 
 
 The court then cites and quotes from its own decisions 
 * * * cases where damages for mental suffering 
 have been allowed.^ 
 
 . 1 Stevenson v. Belknap, 6 Iowa, 9; P^ine v. Chic. R. I. & Pac R Co 
 
 103 71 Am. Dec, S92 ; McKinley v. 45 Iowa, 569 ; Stone v. Chic & N. W. 
 
 Chic. & N. W. R. Co., 44 Iowa, 318, Ry. Co 47 Iowa, 88 29 Am Rep., 
 
 24 Am. Rep.. 748 ; Shephard v. Chic. 458 ; W.Uh v. Chic M & St. Paul R 
 
 R. I. & Pac. R. Co., 77 Iow=., 58; Co., 42 Wis., 23, 24 Am. Rep J76; 
 
 Curtis V. Sioux City & H. P. R Co., Hall v. I°'^0'-Pil"t?'LTw "i,° ««?" 
 
 87 Iowa, 622 ; Parkhursl v. Masteller, son, 90 Iowa, 585, 58 N. W. Rep., 881. 
 57 Iowa 480 ; Lucas v. Flynn, 35 Iowa, 
 
? Ill MENTAL SUi^FERING. 23$ 
 
 The court then says: " From these cases it is appar- 
 ent that in actions of tort this court has frequently 
 announced the rule that damages for mental suffering- 
 may be recovered, although there is no physical injury. 
 And if this be so, why is not this a case where they 
 ought to be allowed? 
 
 "It cannot be possible that here is a legal wrong for 
 which the law affords no remedy. The wrong is plai ii, the 
 injury is apparent, and we think that the law affords a 
 remedy for compensatory damages under the rules above 
 given. It must not be understood to follow that in all 
 actions ex delicto, damages for mental suffering may be 
 allowed. There must be some direct and proximate con- 
 nection between the wiong done and the injury to the 
 feelings to justify a recovery for mental anguish. But 
 when there is this connection so manifest, as in the ease 
 at bar, we think such damages ought to be allowed. Jt is 
 very appropriately said, however, in one of the cases 
 which has been cited, tliat 'great caution should be used 
 in the trial of cases like this, as it will be so easy and 
 natural to confound the corroding grief occasioned by the 
 loss of a parent or other relative with the disappo'ntment 
 and regret occasioned by the fault or neglect of the com- 
 pany, for it is only the latter for which a recovery 
 may be had; and the attention of juries might well be 
 directed to this fact' * * * Let us look for a 
 moment to some of the objections urged to such a rule as 
 we have announced. 
 
 "First. It is said that such suffering is speculative and 
 remote. We have, as we think, answered this by show- 
 ing that in actions of this kind it is direct and proximate 
 to the wrong complained of. 
 
 "Second. Jt is urged that such damages are senti- 
 mental, are vague and shadowy, and that there is no 
 standard by which an injury can be justly compensated 
 or approximately measui-ed.' The objection is answered 
 if we find any case in which such damages are allowed, 
 for if they may be allowed in one kind of a case, they 
 may in all so far as this objection is concerned. We have 
 already seen a number of cases both from this and other 
 states wherein it is iield that damages for mental suffer- 
 ing, independent of physical injury, may be recovered. 
 It IS conceded by counsel that damages can be recovered 
 for mental suffering when accompanied by physical pain 
 
237 MENTAI, SUFFERING. 
 
 i 111 
 
 or bodily suffering. If this be true, then let us ask how 
 the^ can be any more accurately measured when so 
 accompanied than when not? "When it is once conceded 
 that mental anguish can be considered and compensation 
 made therefor, then the objection last urged falls to the 
 ground. 
 
 " Third. It is said that there is no principle on which 
 such damages can be recovered. We have endeavored to 
 show, to the best of our ability that there is abundant 
 authority to justify a recovery in such cases. 
 
 "Fourth. It is contended that the rule opens up a 
 vast and fruitful field for speculative litigation. We have 
 endeavored to so guard and limit the rule that there may 
 be no mistaking its object and effect. If recovery is for 
 the breach of the contract, then it can only be had be- 
 cause of the subject matter — the fact that it is intelli- 
 gence that is transmitted and the feelings only affected. 
 And if the recovery is had because it is tort, then a some- 
 what similar limitation is made which we have tried to 
 make apparent. If as thus limited, the rule opens up a vast 
 and fruitful field of litigation, it is only because telegraph 
 companies fail to do their duty. We cannot think that a 
 rule which will tend to make telegraph companies more 
 careful in the matter of delivering their messages will 
 be fraught with such fearful results as counsel imagine. 
 The single plain duty of a teleoraph company is to make 
 transmission and delivery of messages intrusted to it 
 with promptness and accuracy. When that is done its 
 responsibility is ended. W hen it is omitted, th rough negli- 
 gence, the company should answer for all the injury 
 resulting, whether to the feelings or the purse, one or 
 both, subject to the proviso that the injurv must be the 
 natural and direct consequence of the negligent act. We 
 cannot conceive any danger in such a rule. It seems to 
 us to be in accord with the enlightened spirit of modern 
 jurisprudence, and that in actual practice no evil can 
 result therefrom. 
 
 "Juries may be prone, in cases of this kind to place 
 their estimates high; but the judge is ever present, with 
 a restraining power ample to prevent unconscionable and 
 unjust verdicts." 
 
 The forcible statements of the court, the elegant lan- 
 guage used, and the thorough discussion and comprehen- 
 sive opinion justify the extensive quotations given. The 
 
?? 112-113 MENTAL SUFFERING. 238 
 
 decision is full and complete and covers the whole 
 ground. Nothing can be taken from, and very little, if 
 anything, can be added thereto. The case is worthy the 
 careful study as comprehending the reasons upon which 
 courts lay down the rule, allowing damages for mental 
 anguish and suffering in cases of this kind. 
 
 § 117. Disclosure of Relation of Parties. Where 
 the telegram relates to sickness or death it is not neces- 
 sary to disclose to the company the relation of the par- 
 ties as there is a common sense suggestion that it is im- 
 portant.^ 
 
 The same rule applies where the telegram relates to 
 death or some terrible blow or calamity, although it is 
 not signed by the plaintiff nor his relation explained to 
 the company.^ 
 
 § 118. Damages for Mental SuflFering Denied. There 
 is a long line of authorities, equally respectable, which 
 hold with the same tenacity and firmness that a telegraph 
 company is not liable for damages for any mental suffer- 
 ing and anguish sustained by reason of the failuie or 
 negligence of such telegraph company to transmit and 
 promptly deliver a telegram. The ground upon which 
 these decisions are made and the reasons for so holding 
 are that the mental anguish is not accompanied with any 
 physical injury, and that such damages are speculative, 
 visionary and theoretical, and open up a field of consider- 
 ation which has no substantial basis upon which to rest 
 or to base calculation for compensation. That all such 
 damages come within the rule which has long been estab- 
 lished and recognized, that no damages are recoverable 
 for purely mental nuffering alone. It is universally held 
 by these authorities that there is no distinction to be 
 made between the rule as above laid down and the one 
 made by those authorities which hold that damages may 
 be recovered for mental suffering against a telegraph 
 company, if it was guilty of negligence in the transmis- 
 
 1 Potts V. Western Union Tel. Co., face of the telegram that it was of un- 
 82 Tex., 545; Lyme v. Western Union usual importance to somebody. " The 
 Tel. Co, 123 N. C, 129; 5 Am. Neg. defendantknew that somewhere there 
 Rep., 85; Reese v. Western Union was a vacant chair; that some one 
 Tel. Co., 123 Ind., 294. the lonely watch was keeping. Who 
 
 2 Western Union TeL Co. V. Nations, or where it mattered not to the de- 
 82 Tex., 539 ; Cashion v. Western Uu- fendant, as it had no more right to 
 ion Tel. Co., 124 N. C, 459 ; 45 L. R. wrong one person than another." 
 >., 160, the court saying that on the 
 
239 MENTAL SUFFERING. 
 
 « 113 
 
 sion of a telegram, and such negligence did cause suffer- 
 ing and anguish in mind, independent of any physical 
 suffering. 
 
 It is impossible to reconcile these authorities and the 
 most that can be expected is to cite the leading authori- 
 ties and leave the matter with the courts in the trial of 
 cases to apply. 
 
 One of the leading cases is Connell v. West. Union Tel 
 Co., 116 Mo., 34, L'O L. R. A., 172, where the doctrine is 
 laid down that damages for mental diibtress cannot be re- 
 covered for failure to deliver a telegram promptly, al- 
 though the telegraph company was advised that great 
 mental suffering and pain would result from such failure. 
 The reason for this rule is that there is no way for the 
 jury to determine accurately what would be a reasonable 
 compensation for this mental distress when considered 
 independently by itself. An additional reason is as- 
 signed by some of the courts that damages for mental 
 suffering cannot be awarded upon a breach of contract, 
 holding that a failure of a telegraph companj- to deliver 
 a message promptly, is simply a breach of a contract and 
 is not in any sense a tort. 
 
 After citing and discussing a large number of eases, 
 the court concludes : "Why, if this rule is to become the 
 law of this state in regard to this contract, shall it not 
 apply to all disappointments and mental sufferings 
 caused by delay in railroad trains. Telegraph companies 
 are common carriers ; so are railroads, and yet this 
 court in the Trigg case (where a mother with her two 
 infant children was carried beyond the station and was 
 caused mental anxiety by the delay and suspense. Trigg 
 V. St. Louis, K. C. &N. R. Co., 74 Mo., 147, 41 Am. Rep., 
 305), held the company not liable for mental anguish as 
 an independent cause of action for a mere act of negligence 
 * * * But as before said, if we establish the rule as to 
 one common carrier or private person, what sort of con- 
 sistency can we refuse to extend it to all ? The courts 
 of Texas have already spoken of a similar case as ' intoler- 
 able litigation.' We see no reason for making this 
 innovation or exception. The legislature has imposed 
 a penalty for each infraction of its duty in delaying a 
 message, and it seems very clear to us that, if it is to 
 become the policy of the state to adopt this new rule, the 
 legislature and riot this court should do it. The common 
 
5 113 MENTAL SUFFERING. 240 
 
 law has always attempted to deal with the citizen and his 
 rights or/ wrongs in a practical way, and the declared 
 object in awarding damages is to give compensation for 
 pecuniary loss. The right in a civil action to inflict 
 punishment by way of punitory damages has been ably 
 controverted. The allowance of damages for wounded 
 feelings when they are the concomitant or result of a 
 physical injury, is ' placed rightfully on the ground that 
 the mind is as much a part of the body as the bones and 
 mucles, and an injury to the body included the whole, 
 and its effects were not separable ; but the experience 
 of every judge and lawyer teaches him how unsatis- 
 factory, in these personal injury cases, are the verdicts 
 of juries. 'Chey are utterly inconsistent and the courts 
 do not attempt to justify these inconsistences upon any 
 other theory than that it is the sole province of the jury 
 to fix the amount. The result is that, in nearly every 
 appeal that reaches this court, one ground for reversal 
 is the excessive damage awarded ; and the right of this 
 court to interfere at all on this ground is seriously 
 challenged. It is no uncommon thing to have the appel- 
 lee voluntarily enter a remittitur to save his verdict 
 from the charge of passion or prejudice. Under these 
 circumstances, is it wise to venture upon the far more 
 speculative field of mental anguish without guide or 
 without compass? We think not." The court cites the 
 leading cases pro and con upon this question and con- 
 cludes as follows : 
 
 "We are fully aware that the plaintiff's claim appeals 
 strongly to the sensibilities; but to adopt that view we 
 must either be guilty of adopting one rule of damages for 
 one class of common carriers and the breach of their con- 
 tract, or we must conclude that all our predecessors in the 
 great common law courts were at fault, and henceforth 
 repudiate, not only their utterances but our own, on this 
 subject, and this we have no inclination to do. We pre- 
 fer to travel yet awhile super antiquas vias. If in the 
 evolution of society and law, this innovation should be 
 deemed necessary, the legislature can be safely trusted 
 to introduce, with those limitations and safeguards which 
 will be absolutely necessary." 
 
 In the case of Peay v. Telephone Co., 64 Ark. 538, 39 L. 
 R. A. 4t53, it was held that damages for mental anguish, 
 
241 MENTAL SUFFERING, § 118 
 
 independent of and unaccompanied by physical injury of 
 any kind, cannot be recovered for delay in delivering a 
 telegram. 
 
 It is both interesting and amusing to follow the ingen- 
 ious reasoning of the court in its opinion by which this 
 rule of damages is laid down. It practically admits the 
 rule when it, however, says that damages for mental 
 suffering may be recovered when the torts are wilful and 
 calculated to injure the feeling-s. 
 
 The court, after stating the question whether damages 
 can be recovered at law for mental anguish caused by the 
 negligent omission of duty upon the fault of the tele- 
 graph company, when such mental anguish is independ- 
 entof , and not accompanied by physical injury of any kind, 
 and after citing several authorities upon both sides of 
 the question, concludes that such damages are not recov- 
 erable because to allow them would be the allowance of 
 damages for breach of a contract and a departure from 
 the old common law rule, and because there is no statute 
 allowing them. It says : " It is not to be controverted 
 that in cases of torts that produce physical injury, at- 
 tended with mental suffering, the mental suffering is an 
 element of damages, recoverable in an action at law, be- 
 cause they are so intimately connected as to make sepa- 
 ration impracticable. So also damages may be recovered 
 for torts that are wilful and calculated to injure the 
 feelings, but only in aggravation of damages, on account 
 of the wanton and wilful character of the wrong done ; 
 but no action lies for injury to the feelings merely, or for 
 mental anguish alone. 
 
 "It will be borne in mind that the damages claimed in 
 this case are alleged to have been caused by a breach of con- 
 tract. In a majority of instances the breach of a contract 
 merely causes disappointment, annoyance, and more or 
 less mental trouble and distress. But it would be an un- 
 warranted stretch of the law in our opinion to hold that 
 for mental anguish caused by the violation of a contract 
 merely, damages could be recovered in an action at law. 
 We do not think that damages for mental pain and suffer- 
 ing alone can be measured by any practical or just rule. 
 
 "It is asked, what difference can there be between al- 
 lowing damages for mental pain and anguish unattended 
 with physical wrong, and allowing damages for pain and 
 16 ' 
 
?;il8 MENTAL SUFFERING. 242 
 
 anguish resulting from physical injury ? There is the 
 difference with us that damages for mental pain and 
 anguish caused by physical injury have always been al- 
 lowed by law, while damages for mental pain and anguish 
 unattended with physical injury have been allowed by 
 law only since the decision in the So Relle case in 1881, 
 when the decision of the Texas court departed from the 
 doctrine of the common law, which we think sound, and 
 announced a new doctrine, unsupported by authority as 
 we believe of any well considered case before it. While 
 we do not wish to be understood as clinging to ideas and 
 doctrines that are ancient, because they are ancient 
 merely, if they are contrary to reason and right, yet we 
 have great respect for the conservatism of the law, and 
 will not depart from its long and well settled doctrines, 
 supported by eminent authority and founded in reason 
 and justice. Even if the difference in principle between 
 allowing damages for mental pain and anguish, the result 
 of physical injury, and disallowing damages for such 
 pain and anguish unaccompanied by physical injury, be 
 sudih as not to be defined^merely chimerical, — this is 
 no reason why we should say that damages for mental 
 anguish, independent of physical injury should be allowed. 
 No statute allows them in such case. The common law 
 does not allow tiiem, and in our opinion the weight of ad- 
 judication is against the right of recovery in such cases. 
 In determining a principle in the law which in its appli- 
 cation at least seems to be new and but recently thought 
 of, it is highly important to consider precedents and is 
 legitimate in our view to look to consequences that will 
 follow as certain as night follows the day from the recog- 
 nition of a doctrine that will affect most seriously the 
 welfare of the people. The intolerable and interminable 
 litigation such a doctrine would foster is beyond the 
 reach of an ordinary imagination." 
 
 In the case of Wadsworth v. Telegraph Co., 86 Tenn., 
 695, Judge Lurton rendered a dissenting opinion against 
 the decision of the court allowing damages for mental 
 anguish. And the opinion of the judge commends itself 
 Jis stating the ground fully and completely why such 
 damages should not be allowed. He says: ' ' The reason 
 why an independent action for such damages cannot and 
 ought not to be sustained is found in the remoteness of 
 such damages. * * * Such injuries are generally 
 
243 MENTAL SUPFERING. § H8 
 
 more sentimental than substantial. Depending largely 
 upon physical and nervous condition, the suffering of 
 one under precisely the same circumstances would be no 
 test of the suffering of another. Vague and shadowy, 
 there is no possible standard by which such injury can be 
 justly compensated, or even approximately measured. 
 Easily simula,ted and impossible to disprove, it falls within 
 all the objections of speculative damages which are uni- 
 versally excluded because of their uncertain character. 
 That damages so imaginary, so metaphysical, so senti- 
 mental, shall be ascertained and assessed by a jury with 
 justness, not by way of punishment to the defendant, but 
 as mere compensation to the plaintiff, is not to be ex- 
 pected. That the grief natural to the death of a loved 
 relative shall be separated from the added grief and 
 anguish resulting from the delayed information of such 
 mortal illness or death, and compensation given for the 
 latter only is the task imposed by the law as determined 
 by the majority. But the rule in question has not been 
 limited, as claimed, to actions based upon physical pain. 
 ^t has, as already been seen, upon the authority of Mr. 
 Wood, been applied to actions of slander and libel. No 
 matter how gross the insult, or how harrowing to the 
 feelings, there can be no recovery if the slander did not 
 imply a crime, or result in some special damage. The 
 same rule applies in actions brought for the death of 
 another. The plaintiff must have a pecuniary interest in 
 such life, and in such cases there can be no recovery for 
 the injured feelings, the grief or anguish suffered by the 
 plaintiff, in consequence of the death for which the suit 
 lies. This is the rule regardless of the relation the de- 
 ceased bore to the plaintiff. Whether husband or wife, 
 parent or child, the rule is the same. The damages are 
 for the pecuniary loss sustained. * * * The princi- 
 ples upon which this suit is maintained seem to me so 
 radical a departure from the headlands of the law, and to 
 so seriously threaten the uprooting of doctrines, that I 
 have been taught to revere as the very foundation stones 
 of the system of our law, upon the subject of contracts 
 and damages, as to make it my duty to give expression to 
 my views upon the questions involved." 
 
 This quotation is given in the opinion of Judge 
 Pardee in the case of Western Union Telegraph Co. v . 
 Wood, 57 Fed. Rep. 471, 21 L. R. A. 706, with approval a nd 
 
? 118 
 
 MENTAL SUFFERING. 244 
 
 adopted as a part of it. This opinion is an elaborate one 
 citing all the leading cases on both sides of the question. 
 It is worth more than a passing notice, because it is 
 rendered by the United States circuit court of appeals, 
 and reverses a decision and judgment rendered by the 
 circuit court of the United States for the northern 
 district of Texas^ where the departure from the old com- 
 mon law rule was first made in the So Relle case in 1881. 
 The court in the Western Union Telegraph Co. v. 
 Wood, holds : First. Thab one who receives a telegram 
 from his nephew announcing the dangerous illness of his 
 brother has no right of action against the telegraph com- 
 pany for delay in sending the message, where he was not 
 a party or privy to the contract for sending it, and it 
 does not even appear that it was sent for his benefit. 
 Second. That the liability of a telegraph company to 
 damages for mental anguish on account of negligence in 
 transmitting a message is a question of general law in 
 which a federal court is not bound by the decisions of the 
 state where the cause of action arises. Third. That 
 damages for mental anguish resulting from simple negli- 
 gence in the prompt delivery of a telegram are too uncer- 
 tain, remote, and speculative to be recoverable. . 
 
 The Supreme Court of Mississippi, in the case of 
 Western Union Telegraph Company V. Rogers, Mays down 
 the same doctrine, and in support of it uses this lan- 
 guage : " Damages for mental suffering have been gener- 
 ally allowed in three classes of cases : (1) Where by the 
 merely negligent act of the defendant physical injury 
 has been sustained ; and in this class of cases they are 
 compensatory, and the reason given for their allowance 
 by all the courts is that the one cannot be separated 
 from the other. (2) In actions for breach of contract 
 for marriage. (3) In cases of wilful wrong, especially 
 those affecting the liberty, character, reputation, per- 
 sonal securitj' or domestic relations of the injured party. 
 The decisions in Texas, Tennessee, Kentucky, Indiana 
 and Alabama rest upon arguments and illustrations 
 drawn from cases of one or the other of these classes, or 
 upon general proposition that damages must in all cases 
 be commensurate with the injury sustained to the extent 
 that they were in the contemplation of the parties to a 
 contract, or should have been foreseen as the probable 
 
 iWestern Union Tel. Co. v. Rogers, 68 Miss., 748, 13 L. R. A. 859. 
 
245 MENTAL SUFFERING. § 118 
 
 consequences of the conduct by the negligent defendant 
 These decisions are not in our opinion sustained by any 
 of the analogies by which they are sought to be sup- 
 ported. These cases are totally different from those in 
 which damages for mental suffering have been allowed. 
 * * * There is an absence of authority upon the 
 direct question of the right of recovery for mere grief 
 or dissappointment probably for the reason that prior to 
 the So Relle case the bar had not entertained the view, 
 that an action therefor could be maintained. But there 
 are several cases in which responsibility for mental 
 disturbance by reason of fright has been considered. It 
 has been held that fright attending an accident, resulting 
 from negligence by which bodily injuries were sustained, 
 was properly considered by the jury in awarding dam- 
 ages. Segur V. Barkhamsted, 22 Conn. 290; Masters v. 
 Warren, 27 Conn. 293, Cooper v. Mullins, 30 Ga. 146, 
 Canning v. Williamstown, 1 Cush. 451. But where there 
 is no bodily injury, damages for fright should not be 
 given. Canning v. Williamstown, supra ; Victorian R. 
 Comrs. V. Coultas, L. R. 13 App. Cas. 222, Wvman v. 
 Leavitt, 71 Me. 227, Lynch v. Knight, 9 H. L. Cas. 577, 
 598. * * * We are not disposed to depart from what 
 we consider the old and settled principles of law nor to 
 follow the few courts in which the new rule has been 
 announced. The difficulty of applying any measure of 
 damages for bodily injury is universally recognized and 
 commented on by the courts. But in that class of cases 
 demands for simulated or imaginary injuries are less 
 likely to be made than will be those in suits for mental 
 pain alone. No one but the plaintiff can know whether 
 he really suffers any mental disturbance, and its extent 
 and severity must depend upon his own mental peculi- 
 arity. In the nature of things money can neither palliate 
 nor conpensate the injury he has sustained." 
 
 It will be observed that this decision rests upon two 
 propositions: 
 
 First. That the damages for mental anguish cannot 
 be predicated upon a breach of contract, because the 
 neglect to transmit and deliver a telegram promptly is 
 only the violation of a contract. 
 
 Second. That there is no rule by which to compute 
 damages for mental anguish not connected with bodily 
 injury. 
 
g 118 MENTAL SUFFERING. 246 
 
 The decision in Francis v. Telegraph Co., 58 Minn. 
 252, 25 L. R. A. 406, presents this question in a clear 
 and complete manner. The court holds that no damages 
 for mental suffering caused by the negligent transmis- 
 sion and delivery of a telegram can be recovered. The 
 court says: " This action is not one of tort but on con- 
 tract; its gist and gravamen being the breach of the con- 
 tract, and the duties and obligations growing out of which 
 are regulated by the statute, which itself beconies a part 
 of it. The best test of this is the fact that such an 
 action could not be maintained without pleading and 
 proving the contract. We are therefore left to deter- 
 mine the question here presented according to the rules 
 of the common law applicable to actions for damages for 
 breach of contract. In such actions can damages be 
 recovered for mental suffering resulting from a breach 
 of a contract? The law has always been exceedingly 
 cautious in allowing damages for mental suffering for the 
 manifest reasons, among others, that such damages are 
 more sentimental than substantial, depending largely 
 upon temperament and physical and nervous condition. 
 The suffering of one under precisely the same circum- 
 stances would be no test of the suffering of another, and 
 there being no possible standard by which an injury can 
 be approximately measured, they are subject to 
 many if not most of the objections to speculative 
 damages which are universally excluded. ]n no case 
 will an action lie for mental suffering caused by an act 
 which, however wrongful, infringes no legal right of the 
 party. In actions for a tort resulting in physical 
 injuries, of which mental suffering forms a component 
 part, the latter is permitted to be taken into account in 
 the assessment of damages ; and where the tort is wil- 
 ful, and of a character as naturally and necessarily to 
 injure the feelings, damages for such injuries are some- 
 times allowed, although there was no physical injury or 
 pecuniary loss. * * * Some of the decisions holding 
 that such damages (for mental suffering) are recoverable 
 proceed upon the assumed but false analogy of torts 
 resulting in physical injury accompanied with mental 
 suffering, or where the tort was wilful and calculated 
 and intended to injure the feelings, as for example, slan- 
 der, libel and the like. Others very plausibly argue that 
 uch cases a re new only in instance and not in principle, 
 
247 MENTAL SUFFERING. 
 
 § 118 
 
 that the principle applicable to all actions on contract is 
 that a partj' is liable for all damages proximately result- 
 ing from its breach ; that the reason that in such actions 
 no recovery has usually -been allowed for mental suffering, 
 is that the contracts were of a business or commercial 
 character, not involving the feelings ; that telegraphy is 
 a niodern invention ; that a telegraph company is a carrier 
 of intelligence often sent for a purpose not pecuniary, 
 but relating wholly to matters of sentiment or feeling ; 
 and that therefore the damages resulting from a breach 
 of a contract to transmit such intelligence are not to be 
 and cannot be measured by any pecuniary standard but 
 according to the standard of injury to the feelings.'" 
 
 In Morton v. Telegraph Co., 53 Ohio St. 431, the plain- 
 tiff brought suit to recover damages for the negligent fail- 
 ure of the defendant to deliver to him at London, Ohio a 
 telegram as follows : 
 
 "Henley, O., Oct. 12, 1890. 
 "To Will Morton, London, Ohio: 
 
 Mother is dying, come immediately. 
 
 Frank Morton." 
 
 The plaintiff alleged that the sender of the telegram> 
 who was his brother, paid to the company the usual rates » 
 that it negligently failed to deliver the message to him; 
 whereby he was "left in total ignorance of his mother's 
 illness, and was deprived of the solace and comfort of 
 attending her in her last sickness and of the privilege 
 of attending her funeral, which he could and would have 
 done but for the default of the defendant, its agents and 
 employes, and that he was injured in his feelings and 
 affections thereby in the sum of five thousand dollars." 
 A demurrer was sustained in the court of common pleas 
 and affirmed by the circuit court. The Supreme Court 
 held that the negligent failure of a telegraph company 
 
 'Lynch V. Knight, 9 H. L. Cas., 577; 859; Chapman v. Telegraph Co. 88 
 
 Allsop V. Allsop, 5 Hurlst & N. 534; Ga.; 763, 17 L. R. A., 430; Tyler v. 
 
 Chase V. Telegraph Co., 44 Fed. Rep., Telegraph Co., 54 Fed, Rep., 634; 
 
 554; 10 L. R. A., 464; Russell v. Crawson v. Telegraph Co., 47 Fed. 
 
 Telegraph Co., 3 Dak., 315; Morton Rep., 544; West v. Telegraph Co.. 39 
 
 V. Telegraph Co., 53 O. S , 431 ; Kline Kan., 93 ; Victoria R. Com'rs v. Coul- 
 
 V. Telegraph Co.. 4 Dec. Ohio, 224; tas, L. R. 13 App. Cas., 222; Kester v. 
 
 Gahan v. Telegraph Co., 59 Fed. Telegraph Co., 55 Fed. Rep., 603. 
 Rep,, 437 ; Western Union Tel. Co. To same effect Lewis v. Telegraph 
 
 V. Wood, 57 Fed. Red. 171 21 L. Co., 57 S. C. 325, 35 S. E. Rep. 556 
 
 R. A. 706; Western Union Tel. Co. Gideens v. Telegraph Co. Ill Ga. 824, 
 
 V. Rogers, 68 Miss. 748, 13 L. R. A., 35 S. E. Rep. 824. 
 
?§ 119-120 MENTAL SUFFERING. 248 
 
 to deliver a message does not authorize an action by him 
 to whom it is addressed to recover for resulting injury to 
 his feelings and affections when no other injury results, 
 to person, property, health or reputation. 
 
 Conclusion. A little reflection will show that there 
 is no difference in fact between the allowance of dam- 
 ages for mental anguish connected with physical injury 
 and compensation for mental suffering alone, when pre- 
 dicated upon and caused by an act of negligence or 
 indifferent regard for the feelings of the interested par- 
 ties, and where suffering naturally follows therefrom. 
 They are to be considered upon the same basis. They are 
 both metaphysical in character. They differ only in de- 
 degree, if any. It is said that the body and mind are insep- 
 arable. If so, then an injury to one or the other, or both, 
 is a ground for damages and it is for the jury to say 
 what the amount shall be under such restrictions and 
 limitations as the court may prescribe. In all of these 
 cases we must fall back on the old doctrine that each 
 case must be judged by its own peculiar facts and cir- 
 cumstances. There is no ironclad rule by which dam- 
 ages in each case can be considered and awarded. It is 
 however to be understood that the damages for mental 
 anguish must be limited to the person directly connected 
 with the negligent act of the defendant. 
 
 § 119. Physical Pain and Suffering Recoverable. 
 One in need of medical aid can recover from a telegraph 
 company for pain'and suffering which he sustained by 
 reason of its negligent delay in delivering a message 
 calling for such aid, and which he would not have suffered 
 but for the delay in the arrival of the surgeon.' 
 
 § 120. Amount Recoverable. There is no mathe- 
 matical rule or fixed standard by which to measure or 
 determine the damages which should be awarded for 
 mental suffering caused by the negligence of a telegraph 
 company in transmitting and delivering a telegram. The 
 rule applied in determining the amount to be awarded for 
 physical pain and suffering, when a person has received 
 a severe physical injury, applies to damages for mental 
 suffering. The amount is measured by the extent of the 
 suffering caused in any particular case. What would be 
 adequate and reasonable in one case, and for the mental 
 
 1 Western Union Tel. Co. v. McCall, (Kan.) 6 Am. Neg. Rep. 520. 
 
249 MENTAL SUFFERING. g 120 
 
 suflFeringof one person, would be inadequate and insignifi- 
 cant for another person. The amount rests entirely with 
 the discretion of an impartial jury. In awarding damages 
 they should be guided by good judgment and an honest 
 desire to do justice between the parties. The verdict 
 should be commensurate with the injury sustained. It 
 should not show a disposition to punish the wrongdoer, 
 but it should be suflBcient to demonstrate that careless- 
 ness, negligence and indifferent regard for the feelings 
 of others will not be tolerated or excused without 
 reasonable compensation therefor, where it is reasonably 
 certain that mental suffering was caused thereby. The 
 relation of the parties, the character and nature of the 
 telegram, and the results which followed, such as sick- 
 ness or death, are proper facts for consideration. The 
 effect upon the person injured thereby should not be 
 overlooked. An intelligent, sensitive and refined person 
 would sustain greater and more intense suffering than an 
 ignorant, coarse or indifferent person. The jury should 
 be satisfied that there was a reasonable certainty that 
 the person did sustain or would sustain mental suffering 
 in the future before any damages should be awarded 
 therefor. ' 
 
 It is doubtful whether any actual proof of mental suf- 
 fering can be shown beyond showing the facts and cir- 
 cumstances of the subject-matter of the telegram, the 
 negligence and delay of the company, the sickness, the 
 death, and the results following directly therefrom. From 
 these and kindred facts the jury would have a right to 
 conclude that mental suffering followed. It would be 
 needless to prove that a person would suffer from the 
 loss of a parent, husband or wife or child ; or to attempt 
 to prove that they did not suffer in mitigation of dam- 
 ages. The jury would know that mental suffering would 
 attend the happening of any such event, and the depriva- 
 tion of personally administering to the last sickness or 
 burial of a near and dear friend. When the facts are 
 shown, it would be akin to physical pain, and it becomes 
 a question entirely for the jury to say what the damages 
 should be, and to assess the same.' 
 
 1 Supra. Ch. 5, Sec. 46. « Supra. Ch. 5, Sec. 49, and authori- 
 
 ties cited ; Ch. 10, p. 191, p. 202. 
 
? 122 
 
 MENTAL SUFFERING. 
 
 250 
 
 CHAPTER XIV. 
 
 MENTAL SUFFERING CONTINUED. — BREACH OF CONTRACT 
 
 OF MARRIAGE. 
 
 SBC. 
 
 122. Damages for Mental Suflfering 
 for Breach of Marriage Contract. 
 
 123. Damages, Elements of. 
 
 124. Damages, Assessment of. 
 
 Sec. 
 
 125. Damages, Measure of. 
 
 126. No Mathematical Rule, Province 
 of Jury. 
 
 § 122, Daiuag^es for Mental SuflPering for Breach 
 of Contract of Marriage. The contract of marriage 
 differs from all other contracts. It concerns the highest 
 and most sacred relations and touches the greatest and 
 deepest sympathies of life. Anything that affects those 
 relations must necessarily touch the most sensitive and 
 emotional part of human nature. The rights based upon 
 or connected with the marriage relation are more sacred 
 and inviolable than rights of property. The law will not 
 allow the rights of property to be molested or destroyed 
 without compensation to the owner thereof by the wrong- 
 doer. A fortiori, the law will not permit relations more 
 sacred than property to be trifled with, or matters more 
 delicate and emotional, and consequently more lasting, to 
 be affected or blighted without like compensation by the 
 party responsible therefor. 
 
 Where there has been a violation of a contract of 
 marriage there must be correspondingly an injury and 
 suffering according to the degree and manner in,which 
 the contract has been affected. The law, therefore, 
 recognizes the right to recover for the mental suffering, 
 wounded pride, pain and mortification so caused, and the 
 injured party is entitled to damages from the wrong- 
 
 doer. ' 
 
 iReed v. Clark, 47 Cal.,194; Cool- 
 ridge V. Neal, 129 Mass., 146 ; Royal 
 V. Smith, 40 la., 615; Bennett v. 
 Beam, 42 Mich., 346; Goodall v. 
 Thurman, 1 Head (Tenn.), 209 ; Van- 
 derpool v. Richardson, 52 Mich., 336; 
 Grant V. Willey, 101 Mass., 356; God- 
 dard v. Wescott, 82 Mich., 180 ; Giese 
 V. Schultz, 53 Wis., 462, dO N. W. 
 
 Rep., 598; Daggett v. Wallace, 75 
 Tex. 352, 16 Am. St. Rep., 352; Tobin 
 V. Shaw, 45 Me. 331, 71 Am. Dec, 
 547 ; McPherson v. Ryan, 57 Mich., 
 33 ; Richmond v. Roberts, 98 111., 472 ; 
 Bird V. Thompson, 96 Mo., 424; Strib- 
 ley V. Welz, 4 O. C. D. 520 ; 8 O. C. 
 C. R. 571 ; Field on Damages, Sec. 72. 
 
251 MENTAL SUFFERING. §122 
 
 In Ohio, the court has held that the measure of dam- 
 age for breach of promise is the pecuniary loss to the 
 plaintiff, and this involves the loss of advantage, the 
 viental suffering and humiliation, but not as additional 
 items ; also the expenditures growing out of the engage- 
 ment, if limited to proper purposes, and reduced by rea- 
 son of the purchases still being in possession. In this 
 case the plaintiff recovered judgment for $10,000, which 
 the court thought was not produced by passion or preju- 
 dice, and was therefore affirmed/ 
 
 In Michigan, the court approved the following charge : 
 " And, first, she is entitled to damages for loss of time, 
 for any expense she may have been put to in making prep- 
 aration for marriage, for mental suffering which may have 
 been occasioned by breaking off the contract ; for injury 
 to her health, if any ; for loss of a permanent home, and the 
 worldly advantages which might have been derived there- 
 from by her — the circumstances as to home, property and 
 pecuniary condition of the defendant being considered 
 from the evidence in the case, and her own lack of inde- 
 pendent means, if established. She is entitled to dam- 
 ages to her reputation, if any, moral or physical; for 
 injury to her future prospects of marriage. She is 
 entitled to damages for any humiliation, contempt or 
 mortification she may have suffered in the circles wherein 
 she has moved, by reason of the breach of the contract 
 upon defendant's part. All these she may recover by 
 way of compensatory damages, and these she would-be 
 entitled to even if the jury should find that he broke the 
 contract in a careful, considerate, discreet and kindly 
 manner."^ 
 
 Judge Cooley, in another case, said : "In his charge to 
 the jury the judge told them that they might take into 
 consideration the length of time the engagement had con- 
 tinued between the parties. Exception was taken to 
 this, but it was a very proper direction. He also told 
 them that if they should find that the defendant wantonly, 
 wilfully, and carelessly broke the engagement, they 
 might, in their estimate of damages, consider the mjury 
 to the plaintiff's feelings and reputation, and any circum- 
 stances of indignity under which the wrong was done, 
 and the consequent public disgrace to the plamtiff, 
 
 1 Striblev v Welz, 4 O. C. D. 520 ; 8 ' Goddard v. Wescott, 82 Mich,, 180 ; 
 
 O. C. C. R , 571. 46 N. W. Rep.. 242. 
 
2 122 
 
 MENTAL SUFFERING. 25? 
 
 together with any other circumstances belonging to the 
 wrongful act tending to the plaintiff's discomfort. This 
 is complained of as having no Evidence to support it. 
 But we do not think the case is entirely without evidence 
 to justify such a charge. The proofs tended to show that 
 the engagement was made known to the lady's immediate 
 friends ; that it was broken without cause or warning by 
 a marriage with another, and that the defendant denied 
 ever making it. There were certainly in these facts cir- 
 cumstances of mortification and their tendency was to 
 bring the plaintiff into public disgrace."' 
 
 In Texas, the court adopts the rule laid down by Field 
 on Damages, Sec. 72, where this language is used: " The 
 loss from the disappointment of expectation, including the 
 money value of a marriage which would afford a perma- 
 nent home and an advantageous establishment to the 
 plaintiff, wounds and injuries to the affections, and the 
 mortification and anguish to plaintiff resulting from the 
 defendant's failure to fulfill his promise, are all to be con- 
 sidered in computing actual damages. ' '^ 
 
 When the proof in a case of this sort is sufficient to 
 entitle the plaintiff to recover, the anxiety of mind is an 
 element to be considered in the estimation of damages, 
 if produced by the violation of the defendant's promise. 
 Certain affections of the mind, such as joy and grief, hope 
 and despondency, are often made known to an intimate 
 acquaintance without any verbal communication, by the 
 general appearance and conduct of the party, with entire 
 certainty, when the facts on which conviction is founded 
 in the mind of an acquaintance cannot be fully disclosed 
 in language so as to be understood by a stranger. The 
 shedding of tears is evidence of some unusual condition 
 of the mind. The evidence in this respect is such as 
 practice has sanctioned and is not deemed improper.' 
 
 In an action for breach of promise of marriage, where 
 it is alleged that defendant, by virtue of such promise, 
 seduced the plaintiff, and got her with child, plaintiff's 
 loss of virtue and reputation, and mental suffering may 
 be considered in estimating damages, but not her loss of 
 time, or the expenses of medical or other attendance.* 
 
 iVanderpool v. Richardson, 52 'Tobin v. Shaw, 45 Me., 331, 71 Am, 
 
 Mich., 336 ; 17 N. W. Rep., 936. Dec. 547. 
 
 2 Daggett V. Wallace, 75 Tex. 352. *Giese v. Schultz, 53 Wis., 462, 10 
 
 N. W. Rep., 598. 
 
123-124 
 
 ■253 ' MENTAL SUFFERING. 
 
 §123 Damag-es, Elements of. In Massachusetts 
 the court approved the following charge : "The question 
 of damages was to be computed on the principle of indem- 
 nity and reasonable compensation ; that as elements of 
 damage, the jury would have the right to consider : 
 
 "1st. The disappointment of the plaintiff's reasonable 
 expectation, and to inquire what she had iost by reason 
 of such disappointment, and for that purpose to consider 
 among other things, what would be the money value or 
 worldly advantage of a marriage which would have given 
 to her a permanent home and an advantageous estab- 
 lishment. 
 
 "2d. The wound and injury to her affections. 
 
 "3d. Whatever mortification or distress of mind she 
 suffered, resulting from the refusal of the defendant to 
 fulfill his promise. That in connection with the question 
 how far she had been wounded in her affections, or 
 suffered mortification and distress, the jury might con- 
 sider the length of time during which the engagement 
 had subsisted, that if a female had been wantonly 
 deserted, after an engagement of this kii^d, public policy 
 as well as justice dictated the propriety of a legal indem- 
 nity, and if her affections had been deeply implanted, her 
 wounded spirit, the disgrace, the insult to her feelings, 
 the probably solitude which might result by reason of 
 such desertion, after a long courtship, were all matters 
 for their consideration."' 
 
 § 124. Damages, Assessment of. In assessing dam- 
 ages for a breach of promise of marriage, the length of 
 time during which the engagement subsisted is an ele- 
 ment for the consideration of the jury, and the pecuniary 
 means or abilities of both parties are to be considered 
 as elements in ascertaining the amount of damages. In 
 discussing a Massachusetts case, the court said: "The 
 action in form is an action of contract; but the plaintiff, 
 if she proved her case, was entitled to recover not merely 
 indemnity for her pecuniary loss and the disappointment 
 of her reasonable expectations of material and worldly 
 advantages resulting from the intended marriage, but 
 also a compensation for wounded feelings and the morti- 
 fication and pain which she had wrongfully been made to 
 undergo, and for the harm that had been done to her 
 
 » Coolridge v. Neal, 129 Mass. , 146. 
 
? 125-126 MENTAL SUFFERING. 254 
 
 prospects in life. Few, if any, of these elements of dam- 
 age admit of precise arithmetical computation or can be 
 accurately measured by a pecuniary standard, l^'rom 
 the nature of the case, they are peculiarly within the 
 province of the jury, who are to form their judgment in 
 the light of all the circumstances, whether of aggrava- 
 tion or extenuation, that properly belong to the case.'" 
 
 In an action for breach of promise of marriage, the 
 plaintifF may recover compensation for wounded feelings, 
 and for pain and mortification occasioned by defendant's 
 conduct.^ 
 
 § 125. Damages, Measure of. The measure of dam- 
 ages in an action for breach of promise of a marriage 
 contract is the injury to the plaintiff's feelings, affection, 
 and wounded pride, as well as loss of marriage.' 
 
 Seduction may be shown in aggravation of damages.' 
 
 § 126. No Mathematical Rule. Province of Jury. 
 There is no mathematical rule by which the elements of 
 damage can be ascertained or accurately measured by 
 any pecuniary standard. They must be determined by 
 all the facts and circumstances of each case. The social 
 standing of the parties in the community, the length and 
 publicity of the engagement, the wealth of the parties, 
 the manner in which the engagement was broken, and 
 any other fact which might tend to aggravate the situa- 
 tion or to cause mortification, pain, suffering and humili- 
 ation, are facts to be considered by the jury in making up 
 their verdict.^ 
 
 There is no fixed rule of damages in a breach of 
 promise suit, other than the sound discretion of the jury 
 under all the circumstances, and they may allow pecu- 
 niary damages in their discretion." 
 
 •Grant v. Willey, 101 Mass., 356. Daggett v. Wallace, 75 Tex., 352, 16 
 
 2 Parker v. Forehand, 99 Ga. , 743, 28 Am. St. Rep., 908 ; Lawrence v. Cook, 
 
 S. E. Rep., 400. 56 Me., 187,96 Am. Dec, 443; Cool- 
 
 'Liese V Meyer, 143 Mo, 547, 45 ridge v. Neal, 129 Mass., 146; Hunter 
 
 S- W. Rep., 282. v. Hatfield, 68 Ind., 416 ; Knifer v. 
 
 'Kaufman v, Fye, 99 Tenn., 145, 42 McConnell, 30 N. Y., 285; Sprague v. 
 
 S;- .^^?X ?5 ' ^''^^ ^- Schultz, 53 Craig, 51 111., 288 ; Blochburn v. Mann, 
 
 Wis 462, 10 N. W. Rep., 596. 85 111., 222 ; Re^d v. Clark, 47 Cal.! 
 
 o/^^^"* '^'^ W'lley, 101 Mass., 3.56; 194; Chellis v. Chapman, 126 N. Y., 
 
 Stribley V Welz, 4 O. C. D., 520, 8 O. 214, 11 L. R. A., 784; Albertz v. 
 
 v.. t.. K^ 511; Duvall v. Fuhrman, 2 Albertz, 78 Wis.. 72, 10 L. R. A., 584. 
 O. C. D., 174; 3 O. C. C. R., 305; «Kelley v. Highfield. 15 Ore., 277. 
 
255 MENTAL SUFFERING. i 126 
 
 In Massachusetts, the court said: "Few, if any, of 
 these elements admit of precise arithmetical com- 
 putation."^ 
 
 In Minnesota, it was held that in assessing damages, 
 it is proper to consider defendant's financial condition 
 and social position, and what rights and privileges the 
 plaintiff would have acquired pecuniarily and socially if 
 defendant had performed his contract.' 
 
 'Grant V. Willey, 101 Mass., 356. 'Tamkpe v. Vaugsness, 72 Minn., 
 
 236, 75 N. W. Rep., 217. 
 
? 127 
 
 MENTAL SUFFERING. 
 
 256 
 
 CHAPTER XV. 
 
 MENTAL SUFFERING, CONTINUED — OCCASIONED FROM SALE 
 OP INTOXICATING LIQUORS. 
 
 Sec. 
 
 127. Damages Include Mental SuflFer- 
 
 ing. 
 
 128. Actual Damages Recoverable. 
 
 129. Damages Recoverable by Father. 
 
 130. Mitigation of Damages. 
 
 131. Mental Suffering, D mages for, 
 
 Recoverable. 
 
 SBC. 
 
 132. Damages Dependent Upon a 
 Cause of Action. 
 
 133. Mental Suffering, Damages when 
 
 not Recoverable. 
 
 134. Means of Support. 
 
 135. Exemplary Damages. 
 
 § 127. Mental Suffering for Loss of Social Posi- 
 tion and Standing in the Community, and for Humil- 
 iation Caused by Selling Intoxicating Liquors to the 
 Husband or Father. 
 
 Damages Include Mental Suffering. In nearly 
 all the states, statutes have been enacted giving to 
 the person sustaining any injury or damage by the sale 
 of intoxicating liquors to the husband or parent the 
 right to bring, maintain and recover a judgment for any 
 damages which have been caused to the plaintiff by rea- 
 son of the sale of such intoxicating liquors when notice 
 has been served, not to sell to such husband or parent. 
 The object of such statutes is to restore in part, at least, 
 the loss which the injured person may have sustained. 
 It IS to provide a civil remedy for a wrong done. They 
 give a right of action to any person who shall be injured 
 in person, m property, or in means of support. It is an 
 admitted fact that drunkenness leads to poverty, want 
 and degradation with all its attendant evils; and among 
 those evils is the loss of social position, humiliation and 
 mental suffering caused by such drunkenness. Drink 
 leads to poverty, and poverty, if attended with drunken- 
 ness, brings sorrow, shame, and mortification, besides 
 loss of means of support. For any such damage caused 
 t)y the sale of intoxicating liquors to the husband or 
 parent, withm the conditions mentioned in the provisions 
 ot the statute, the parent, wife or child may bring an 
 
257 MENTAL SUFFERING. { 121 
 
 action and recover a judgment for the injury so sus- 
 tained.^ 
 
 It has been held that under a statute giving exemplary 
 damages to the wife " who shall be injured in person, 
 property, means of support or otherwise * * * by 
 reason of the intoxication of any person," it was proper 
 to show that she had been excluded from society on 
 account of her husband's intoxication, and to give evi- 
 dence of her mental suffering generally on account of his 
 drunkenness. But facts should not be admitted tending 
 to prove damages that are merely fanciful or too remote. 
 In speaking of this question the court said : " The 
 wrong committed by the defendant in selling intoxicat- 
 ing liquors to the plaintiff's husband was not only in open 
 violation of the laws of this state, but was persistently 
 persevered in by the defendant, regardless alike of the 
 suffering and ruin he was inflicting and entailing upon 
 the unfortunate victim and upon his innocent and unof- 
 fending wife and child. A jury might measure, if they 
 could, and allow the wife every dollar of loss she could 
 prove she had sustained for the injuiies to her person, 
 her property and her means of support, and then would 
 fall far short of compensating her for the shame and mental 
 anxiety which she suffered daily in seeing- her husband 
 become a common drunkard, the finger of scorn pointed 
 at him, his business neglected and going to ruin, his 
 property melting away, himself and wife excluded from 
 respectable society, the means which should be used in 
 support of his family squandered in strong drink, and his 
 once happy home broken up and destroyed, if these facts 
 could not bp proved and considered by them. These are 
 but some of the natural results of drunkenness, and the 
 better sense of all good people recognize the mental suf- 
 fering thus caused as constituting a real injury to the 
 
 iKolling V. Bennett, 10 O. C. D. 37 Mich. 25; Clinton v. Laning, 61 
 
 81 18 O C C R. 4-25; Miller v. Mich. 35-5; Uldrick v. Gilmore, 35 
 
 Glea=on. 10 O. C. D. I'O, 18 O. C. C. Neb. 288. 53 N. W. Rep. 135; Hous- 
 
 R. 874; Kear V. Garrison, 7 O. C. D. ton v. Graw, 38 Neb. 687; Ford v. 
 
 51.'i, 13 O. C. C. R. 447; Weber v. Cheever, 105 Mich. 679, 63 N. W. 
 
 Wiggins 1 O. C. D. 84, 11 O. C. C. Rep. 975; Bnnyan v. Loftus, 90 la. 
 
 R. 18: Mulford v. Clewell, 21 Ohio 122, 57 N. W. Rep. 685; Ward v. 
 
 St. 191 ; Schneider V. Hosier, 21 Ohio Thompson, 48 la. 5f8; Pe^ram v. 
 
 St. 98; B»an v. Green, 33 Ohio St. Stortz, 31 W. Va. 220, 6 S. E. Rep. 
 
 444; Sissing v. Beach, 91 Mich. 264, 488; Peterson v. Knoble, 35 Wis. 80. 
 58 N. W. Rep. 364 : Friend v. Dunks, 
 
 17 
 
I 127 MENTAL SUFFERING. 258 
 
 person; and although not capable of an actual money 
 measurement, yet that it should be taken into considera- 
 tion by a jury who could, from all the facts in the case 
 and their own sense of justice, award such damages as 
 would at least compensate in part for the wrong done her, 
 and at the same time punish the defendant for the gross, 
 wilful and deliberate wrong which he, for mere gain, had 
 wantonly perpetrated. 
 
 ''Mental injuries are frequently of the most deep and 
 lasting, and the wounds thus inflicted are often the most 
 severe. That they are a real injury and damage to the 
 sufferer no one will dispute. Why, then, should a jury not 
 consider them f Take the case of a husband and wife who 
 are dependent upon his daily labor for support. If he has 
 good health, is sober and industrious, the reward received 
 for his toil will enable him to live comfortably and respect- 
 ably, and if they are blessed with children, to educate and 
 bring them up to become good, respectable, and useful 
 citizens. In an evil hour he is led astray and commences 
 the use of intoxicating liquors. Unable to control him- 
 self in their use he becomes a drunkard; he suffers 
 mental and physical impairment; he no longer works 
 with any degree of regularity, and squanders in drink 
 the pittance he is able to earn; he deserts his home; his 
 wife is neglected and his children become outcasts. An 
 action is brought to recover damages in such a ease. 
 Would the amount of money which the wife had lost, as a 
 means of support, from not receiving her husband's daily 
 wages or the benefit thereof, compensate her for the 
 damage she had suffered? And yet it would be a very 
 serious question, whether she could show, with any 
 degree of certainty, any other dii"ect loss which she had 
 sustained. To confine the damages in such a case to the 
 direct money loss she had sustained or to the loss in her 
 means of support, and refuse to recognize as a proper 
 element of damages, the far greater and irreparable injury- 
 she had sustained in person on account of mental anguish, 
 disgrace, loss of society and com/par\ionship from such causes 
 would be but a mere mockery of justice. These damages 
 are not, nor are the consequences and results we have 
 referred to, merely fanciful. It would perhaps be much 
 better for society if they were. But the sad truth is that 
 these are but the natural and probable consequences of a 
 drunkard's career. They are of every day occurrence. 
 
259 MENTAL SUFFERING. 
 
 128-129 
 
 and the liquor dealer who will sell or give liquors to a 
 ?^^f^VR.^^^ ^^^^^ ^^ becoming intoxicated must know 
 that all these evils and frequently many others will fol- 
 low as a natural consequence. They are but the natural 
 and probable consequence of his own wrongful act and 
 as such may be submitted to and considered bv the 
 jury." "^ 
 
 § 128. Actual Damages Recoverable. The actual 
 danaages resulting from injuries received by a husband 
 at the hands of an intoxicated person, recoverable by the 
 wife, may include the amount due for medical attend- 
 ance, the value of the wife's services in nursing the hus- 
 band, and the loss of her means of support by reason of 
 his diminished ability to labor. ^ 
 
 The injured party is entitled to recover all damages 
 resulting from the use of the intoxicating liquors sold or 
 furnished by the defendants to the husband of such in- 
 jured person — citing several Nebraska eases.' 
 
 In an action against a saloon keeper for selling liquor 
 to plaintiff's husband, thereby injuring her means of sup- 
 port and her feelings, the defendant will be liable for 
 whatever damages the plaintiff has sustained from his 
 acts, though the husband was an habitual drunkard 
 before such sales began.* 
 
 In an action by a wife to recover damages for the sale 
 of liquors to her husband, it is improper to charge the 
 jury in considering the elements of damage they should 
 consider mental anguish, mortification and loss of com- 
 panionship, when the husband had become a drunkard 
 long before the sales by the defendant were made, and 
 where there is nothing to show that the plaintiff suffered 
 any mortification on account of any intoxication caused 
 by such sales. ^ 
 
 § 129. Damages Recoverable by Father. Where a 
 father sued a liquor dealer to recover damages for his loss 
 in being compelled to support an adult son rendered help- 
 less through defendant's wrongful act, it was held that 
 the father's voluntary assumption of the support of his 
 son were as valid charges (within a proper limit) as if 
 
 1 Friend v. Dunks, 37 Mich. 25. N. W. Rep. 975. 
 
 2 Thomas V. Dansby, 74 Mich. 398. » Johnson v. Schultz, 74 Mich. 75, 
 'Uldrick v. Gilmore, 35 Neb. 288, 41 N. W. Rep. 865; to the same efiFect, 
 
 63 N. W. Rep. 135. Sissing v. Beach, 91 Mich. 264, 58 N. 
 
 * Ford V. Cheever, 105 Mich. 679, 63 W. Rep. 364. 
 
e 130-131 MENTAI, SUFFERING. 260 
 
 he had been compelled by law to save the public f lom 
 expense (the father being perfectly responsible and lia- 
 ble under the statute for the support of his son), but that 
 expenditures beyond that limit could not be recovered; 
 and that questions of the son's or father's bodily or men- 
 tal sufferings should not be considered in estimating the 
 damages. ' 
 
 § 130. Mitigation of Damages. On the trial of an 
 action under Mitigation Pub. Acts 1887, No. 313, Sec. 20, 
 by a mother against one who sold her minor son liquor 
 where the plaintiff's injury consisted mainly of mental 
 anguish from the discovery of her son's intoxication, it 
 was error to exclude the question, on plaintiff's cross- 
 examination, " Haven't you seen him (her minor son) in- 
 toxicated within the last six months by liquor you had 
 furnished him in your own house ?" The reason why the 
 exclusion of such question was error was that where the 
 damages consisted, as in this case, of injury to the feel- 
 ings, and shame and mortification on discovery of the 
 fact of her son's intoxication, a mother who had furnished 
 liquor to her son, who became intoxicated on such liquor, 
 would not be affected by the discovery of such condition 
 to any such degree as would one who was not so lost to 
 the sense of parental responsibility. The fact of such 
 act on the part of the mother, if true, was proper in mit- 
 igation of damages.^ 
 
 § 131. Mental Suffering, Damages for, Recoverable. 
 It is clear that the plaintiff can recover for her mental 
 suffering resulting from being beaten bj'^ her intoxicated 
 husband, by being repeatedly thrust out of doors by him, 
 and by being compelled to stay out all night.' 
 
 In a Wisconsin case the court, after referring to the de- 
 cisions of some states where it was held that mental suf- 
 fering, disgrace, loss of society and companionship do 
 not constitute the principal cause of an action under the 
 statutes and do not furnish the only grounds for damages, 
 said: "But in this ease we have that physical injury and 
 suffering, namely, the turning of the wife out of doors 
 and keeping her there for some hours, which suffices to 
 sustain the action; and where the action is so sustainable, 
 then we understand that eompensaition for injury to the 
 feelings of the plaintiff, and for the indignity suffered by 
 
 1 Clinton v. Laning, 61 Mich. 355. 531. 
 
 ''Cramer v. Danielson, 99 Mich. 'Ward v. Thompson, 48 la. 588. 
 
261 MENTAI. SUFFERING. J§ 132-133 
 
 reason of the principal act complained of and as a part of 
 that act, constitutes a portion of the actual damages in 
 the action which the plaintiff is entitled to recover. If a 
 stranger, and not the husband, had been guilty of the act 
 of turning the plaintiff out of doors and keeping her out, 
 such compensation would have been recoverable as a part 
 of the actual damages; and it was the intention of the 
 statute, no doubt, to give the same or an equivalent rem- 
 edy against the person who sold the liqtiors, and by 
 whose fault, in the statutory point of view, the injuries 
 were caused.'" 
 
 § 132. Damages Dependent upon a Cause of Action. 
 
 I think that the conclusion of these authorities is that 
 damages for mental suffering and disgrace, and loss of 
 society and companionship may be recoverable when the 
 injured person has a right or cause of action against the 
 liquor seller for damages in person, in property or in, 
 means of support. Damages to the person, property or 
 means of support must exist to some degree before dam- 
 ages for mental suffering can be allowed. There must, 
 be a principal cause of action, and when there is, dam- 
 ages for mental suffering, disgrace, humiliation, loss of 
 social position will follow as one of the natural results of 
 the wrongful act.^ 
 
 § 133. Mental SuflFering and Loss of Social Posi- 
 tion, When not Recoverable. As has been stated in 
 the last section the right of action must be based upon an 
 injury to the person, property or means of support. 
 What is meant by an injury to the person, property or 
 means of support has been construed by the courts. 
 
 An injury to the person means some actual violence or 
 physical injury to the person, or to her health, or some 
 assault upon the plaintiff by the intoxicated person.' 
 
 An action against the vendor, under an act to provide 
 a remedy against the evils from the sale of intoxicating 
 liquors, for injuries to the person of the plaintiff occa- 
 sioned by the drunkenness of the vendee, can not be sus- 
 tained without showing an assault or some actual violence 
 or physical injury to the person, and it is not sufficient to 
 
 1 Peterson v. Knoble, 35 Wis. 30. ble, 35 Wis. 80. 
 
 2 Pegram v. Stortz, 31 W. Va. 220, 'Mulfofd v. Clewell, 21 O. S. 191 ; 
 6 S. E. Rep., 485 ; Peterson v. Kno- Peterson v. Knoble, 35 Wis. 80. 
 
§ 134 MENTAL SUFFERING. 262 
 
 show mere mental anguish, disgrace or loss of society or 
 companionship.' 
 
 The abuse of a wife by cursing her when under the 
 influence of liquor^ or calling her a prostitute in the pres- 
 ence of her neighbors, and threatening to kill her, do not 
 constitute a cause of against action against a liquor seller 
 unless there is evidence to show injury or impairment of 
 health by such conduct,' 
 
 If the husband while intoxicated assaults and beats his 
 ■wife, she has a cause of action against the saloon keeper 
 who furnished him with liquor.* 
 
 An injury to the "property" of the plaintiff means 
 any money or property which is taken and used for in- 
 toxicating liquors which the husband knew to be hers or 
 knew that she claimed it as such.^ ' 
 
 § 134. Means of Support. An injury to the "means 
 of support," is defined by the court in Ohio, where it is 
 laid down that, in order to sustain an action under the 
 the statute for injury to her "means of support," it is 
 not necessary for the wife to show that she has been at 
 any time in whole or in part without present means of 
 support. It is enough that the means of her future sup- 
 port have been cut off or diminished below what is rea- 
 sonable and competent for a person in her station in life, 
 and below what they otherwise would have been. And 
 the rule of damages in such cases would be, not the 
 amount of loss occasioned to the husband's estate, but 
 the diminution, if any, thereby resulting to her means of 
 present and future support.* 
 
 Means of support in its general sense "embraces all 
 those resources from which the necessaries and comforts 
 of living are or may be supplied, such as lands, goods, 
 salaries, wages or sources of income. In its .limited 
 sense, it signides any resource from which the wants of 
 life may be supplied."' 
 
 'Mulford V. Clewell, 21 O. S. 191. ^Mulford v. Clewell, 21 O. S., 191. 
 
 ^Albrecht V. Walker, 73 111. 69. 'Schneider v. Hosier, 21 O. S. 98 ; 
 
 Calloway V. Layden, 47 la. 456, 29 See Volans v. Owen, 74 N. Y. 526, 30 
 
 mr^^P' -n , .» ^^' Rep- 337 ; Jockers v. Borgman, 
 
 •Wilson V Booth, 57 Mich. 249, 23 29 Kas. 109, 44 Am. Rep. 626 ; Wool- 
 
 6w ■ ^^P- *l^^- T> . , heather v. Risley, 38 la 486 ; McMa- 
 
 »Woolheather v. Risley, 38 la. 486 ; hon v. Sankey, 133 111. 636, 24 N. E. 
 
 ?7'^''w%''- ®'?r°^"*' ^^ ^^'^^ ^^^' ^«^P- 1027; Moran v. Goodwin, 130 
 37 N. W. Rep. 600. Mass. 153, 39 Am. Rep. 443. 
 
263 MENTAL SUFFERING. 
 
 § 134 
 
 "What those damages are in any given case, the legis- 
 lature have seen proper to leave in these broad terms to 
 a jury to determine. A wife's means of support— her rea- 
 sonable alimony or allowance for maintenance is a matter 
 quite well known to the law ; and there is no good reason 
 why the legislature should not submit the question of its 
 amount and value as it seems to have been done by those 
 statutes to the determination of a jury under the instruc- 
 tion and supervision of the court." ' 
 
 Without a right of action for an injury to the person, 
 property or means of support, mortification, sorrow, 
 shame, anxiety, loss of society and companionship, men- 
 tal suffering and disgrace, do not constitute a cause of 
 action under the statutes, and for these alone damages 
 cannot be recovered.' 
 
 And damages cannot be recovered for mental suffering, 
 anxiety and loss of companionship, where the husband 
 was a notorious drunkard for many years prior to the 
 sale of the liquor by the defendant'' or where there is no 
 evidence introduced showing any mental suffering and 
 loss of society, etc.* 
 
 In Illinois under a statute relating to the recovery of 
 damages by a wife for the sale of intoxicating liquors to 
 her husband, there can be no recovery, it has been held, 
 for the mental suffering of the wife. The statute only 
 contemplates, it is held, a recovery for injury sustained 
 by her in person, property, or means of support.^ 
 
 But in Ohio it is held that it is well settled that one 
 who by unlawful sales contributes in ever so slight a de- 
 gree to produce or increase the drunkenness from which 
 damages flow, may be required to respond in the whole 
 amount of such damages. ° 
 
 In this case complaint was made that the damages were 
 excessive, but the court say: "If we leave out of consid- 
 eration here every element of damage except the bare 
 pecuniary loss directly attributable to the drunkenness to 
 which the sales made by the plaintiff in error contributed, 
 it cannot be said that the damages are excessive. 
 
 1 Mulford V. Clewell, 21 O. S. 191. 'Clinton v. Laning, 61 Mich. 355, 
 
 2Koener v. Oberly, 56 Ind. 284, 26 28 N. W. Rep. 125. 
 
 Am. Rep. 34; Freese v. Tripp, 70 111. ^Johnson v. Schultz, 74 Mich. 75. 
 
 496; Flynn v. Fogarty, 106 111. 263; 41 N. W. Rep. 865. 
 
 Welch V. Jugenheimer, 56 la. 11, 8 N. * Meidel v. Anthis, 71 111. 241. 
 
 W. Rep. 673; Jackson v. Noble, 54 la. «Kolling v. Bennett, 10 O. C. D. 
 
 641, 7 N. W. Rep. 88 ; Mulford v. Cle- 81, 18 O. C. C. R. 425. 
 
 well, 21 O. S. 191. 
 
2 135 MENTAI, SUFFERING. 264 
 
 '■'• If Other louses and suffering of the wife which might 
 have been taken into consideration hy the jury and which 
 the jury would have been justified in allowing are to he 
 added, it becomes apparent that the verdict is remark- 
 ably light." 
 
 From this language it would seem that if the wife has 
 any cause of action against the liquor seller, she would 
 be allowed to recover damages for mental suffering, and 
 this is supported by the reasoning in the case of Mulford 
 V. Clewell, 21 O. S. 191. 
 
 § 135. Exemplary Damages. In actions for dam- 
 ages under these statutes, the plaintiff under certain cir- 
 cumstances, when there is ground for compensatory dam- 
 ages, may recover exemplary or punitive damages.' 
 
 iMiller v, Gleason, 10 O. C. D. 20, cock v. Oaks, 85 Mich. 578, 48 N. W. 
 
 18 O. C. C. R. 374 ; Kear v. Garrison, Rep. 1082 ; Larzelere v. Kerchgess- 
 
 7 O. C. D. 515, 13 O. C. C. R. 447 ; ner, 73 Mich. 276 ; Thill v. Polman, 
 
 Schneider v. Hosier, 21 O. S. 98; 76 la. 638; Black on Intoxicating 
 
 Beau V. Green, 33 O. S. 444; Rouse Liquors, Sec. 325. 
 V. Melscheimer, 82 Mich. 172; Pea- 
 
265 MENTAL SUFFERING. 
 
 CHAPTER XVI. 
 
 137 
 
 MENTAL SUFFERING ALONE. 
 
 Skc. 
 
 137. Mental SuflFering Alone. 
 
 138. Humilation. 
 
 Sec. 
 
 139. Sickness. 
 
 140. Injury to Peelings. 
 
 § 137. Damages for Mental SuflFering When not 
 Recoverable. There is a class of mental suffering for 
 which no right of action is given. Mere mental suffer- 
 ing unaccompanied by physical injury or without physio- 
 logical results, forms no basis for damages. Solicitude or 
 anxiety for the welfare of others or the suffering en- 
 dured for the loss of a friend, are beyond the realm of suf- 
 fering for which recovery may be had. A parent may be 
 anxious or solicitous for a child, or a wife for her husband, 
 when such child or husband is engaged in a hazardous 
 employment or when injured ; or may suffer keen mental 
 anguish in case of death; but for this class of suffering, 
 the law furnishes no cause of action or ground for dam- 
 ages. It is called in law pure mental suffering alone. It 
 is mental suffering independent of any other damage which 
 would furnish a right of action. It is disconnected from any 
 physical injury to the person or from any of the physio- 
 logical effects of an injury. It is distinct from mental 
 suffering arising from an insult, indignity or wilful wrong 
 done, such as libel or slander, in which mental suffering is 
 an element of damage. A parent may see his child run over 
 by a railway train and severely injured or killed by the 
 results thereof, but he is without any legal remedy for 
 the mental suffering. There is a respectable number of 
 authorities which hold that no recovery can be had for 
 mental suffering without some physical injury which has 
 been already discussed.' But what is meant here by men- 
 tal suffering is that kind of mental suffering for which, 
 as all the authorities agree, no damages are recoverable 
 under an}'^ circumstances. It means generally where 
 mental suffering is claimed by a third person and not by 
 the person who is injured, or where it is distinct from 
 any injury or wilful wrong. If this distinction be kept in 
 
 1 Chapter 9, supra. 
 
§ 137 MENTAL SUFFERING. 266 
 
 mind, it will not be difficult to keep the meaning of 
 mental suffering as here used within its proper limita- 
 tions. 
 
 Mental suffering for which damages are recoverable is 
 confined to the suffering of the person injured. 
 
 In Western Union Tel. Co. v. Cooper, 7L Tex. 507, 10 
 Ami. St. Rep. 772, it is held that a husband cannot recover 
 damages for his anxiety and sympathy for suffering of 
 wife in an action to recover for personal injuries to her. 
 Only the person who suffers the injury proximately re- 
 sulting from the wrong done is entitled to compensation 
 in such an action. 
 
 Where an injury has been received by a child, the 
 father can recover only compensatory damages, to be 
 measured by the loss of the child's services and expenses 
 to effect a cure; he cannot recover for lacerated feelings 
 or disappointed hopes.' So it has been held that a hus- 
 band could not maintain an action in his own right for men- 
 tal suffering caused by an injury to his wife." But where 
 an action was brought by the husband for seduction of 
 his wife or for criminal conversation with her, it was 
 held that he could recover for his mental suffering.' 
 
 To acknowledge a rule that damages could be recovered 
 for mental suffering alone, would permit its assertion and 
 establishment to rest within the fictions of the mind of 
 the person making the claims for damages. In some 
 cases it might be real, but in the majority of cases it 
 might be more imaginary than real or wholly manufac- 
 tured or assumed for purely mercenary motives. The 
 law wisely permits no such rule or right of action.* 
 
 To recognize any such rule would open the door to 
 inconceivable fraud, wicked speculation, and endless and - 
 intolerable litigation. The rights of property and of 
 person are sacred and entitled to respect, consideration 
 and protection. They cannot and will not be made the 
 prey of unscrupulous persons and designing conspira- 
 tors. To use the courts for any such purpose is to make 
 
 1 Pennsylvania R. Co. V. Kelley, 31 * Wymau v. Leavett, 71 Me. 227 
 Pa. St. 272; Caldwell v.Brown,53 Pa. St, Johnson v. Express Co., 6 Nev. 224 
 453 : Covington St. Ry. Co. v. Packer, Durkee v. Railway Co. 56 Cal. 288 
 9 Bush (Ky.), 15 Am. Rep. 725. Keyes v. Railway Co., 36 Minn. 290, 
 
 2 Hooper V. Haskell, 56 Me. 251; Ind, & St. Louis R. Co. v. Stables, 62 
 Hyatt V. Adams, 16 Mich. 180; Long 111. 313, 36 Am. Rep. 300; Bovee v. 
 T.Morrison, 14 Ind. 575. Danville, 53 Vt. 190; Gulf, etc. Ry. 
 
 Yundt V. Hartrunft, 41 111. 10; Co. v. Levy, 59 Tex. 563, 46 Am. Rep. 
 Johnson v. Disbrow, 47 Mich. 50. 278 
 
267 MENTAL SUFFERING. 
 
 i 137 
 
 them an instrument of injustice and oppression, instead 
 of instrumentalities for securing right and justice, as 
 far as human agency can make them. 
 
 Good judgment and discriminating consideration are 
 required to be exercised to distinguish and separate the 
 mental anguish arising from a negligent act and mental 
 suffering alone.' 
 
 In the Beasely case, 39 Fed. Rep. 181, the court said : 
 "It is my duty to say to you that, in reference to the 
 question of damages, great caution ought to be observed 
 in the trial of cases like this, as it will be so easy and 
 natural to confound the corroding grief occasioned by 
 the loss of a wife with the disappointment and mental 
 anguish occasioned by the fault or negligence of the com- 
 pany ; for it is only the latter for which a recovery may 
 be had." 
 
 ^^ In Bovee v. Danville, 53 Vt. 190, it appeared that 
 through an accident and personal injury, a woman gave 
 premature birth to twins, and a claim was made for dam- 
 ages for mental suffering for the loss of the twins. It 
 was held that the anguish or suffering of mind following 
 the delivery, and not a part of the pain naturally accom- 
 panying the birth, are too remote to be considered as an 
 element of damage. The court said: "If, like Rachel, 
 she wept for her children, and would not be comforted, a 
 question of continuing damage arose too delicate to be 
 weighed in any scale which the law has yet invented." 
 
 In cases of sudden accident and personal injury result- 
 ing in unconsciousness and death before becoming con- 
 scious, the rule is that no recovery can be had for mental 
 suffering.^ 
 
 Mental suffering caused by sympathy for another in 
 suffering or by anxiety for others, is not recoverable as 
 an element of damage.'^ 
 
 'Beasely v. Telegraph Co., 39 Fed. 'Flemmington v. Smithers. 2 C. & 
 
 Rep. 181 ; Gulf, etc. R. Co. v. Levy, P. 292, 12 E. C. L. 131 ; Western Un- 
 
 59 Tex. 542, 46 Am. Rep. 278 ; West- ion Tel. Co. v. Cooper, 71 Tex. 507, 10 
 
 ern Union Tel. Co. v. Cooper, 71 Tex. Am. St. Rep. 772 ; Pullman Palace 
 
 507, 10 Am. St. Rep. 772 ; Renihan v. Car Co. v. Trimble, 8 Tex. Civ. App. 
 
 Wright, 125 Ind. 536, 21 Am. St. Rep. 363; Hyatt v. Adams, 16 Mich. 180; 
 
 249. Pacific Express Co. v. Black, 8 Tex. 
 
 2 Kennedy v. Sugar Refining Co., Civ. App. 363; Atchison & S. F. R. 
 
 125 Mass. 90,28 Am. Rep. 214; Co. v. Chance, 57 Kan. 40. 
 Mulchahey v. Car Wheel Co., 145 Mass. 
 81. 
 
§§ 138-139 MENTAL SUFFERING. 268- 
 
 In Atchison & S. F. R. Co. v. Chance, 57 Kan. 4a, the 
 court held that it was improper to admit evidence as to 
 mental suffering on account of the circumstance and con- 
 dition of others — as where in an action for fatal injuries 
 inflicted by the railroad company upon the plaintiff's in- 
 testate, evidence was sought to be introduced of the men- 
 tal distress of the decedent prior to his death on account 
 of his apprehension that he would leave his wife and child 
 in a helpless and dependent condition. 
 
 A parent is not entitled to recover damages for mental 
 suffering and anxiety by reason of a physical injury sus- 
 tained by his child. ^ 
 
 Neither can a parent recover damages for mental suf- 
 fering and anxiety on account of the safety of his or her 
 child placed in peril by the negligence of another." 
 
 Neither can a husband show that he has suffered men- 
 tally by reason of his wife's condition, to increase the 
 amount of damages. * 
 
 In an action for the value of cows killed and wounded 
 by defendant, the physical and mental anguish suffered 
 by plaintiff's wife, because of her fear of defendant, are 
 not elements of damage. * 
 
 § 138. Humiliation. Future mental pain, that is 
 mere humiliation and grief resulting from a contempla- 
 tion of a maimed and disfigured body, is not an element 
 entering into an ascertainment of the pecuniary damage 
 which a person has sustained as the result of negli- 
 gence. ^ 
 
 § 139. Sickness. No recovery can be had for sickness 
 due to the purely internal operation of fright caused by 
 a negligent act, even if the negligent act was gross and 
 
 1 Pennsylvania R. Co. v. Kelly, 31 Western Union Tel. Co. r. Cooper, 71 
 Pa. bt. 372 ; Oakland R. Co. v. Field- Tex. 507, 10 Am. St. Rep. 772; Pacific- 
 ing, 44 Pa. St. 320 ; Black v. Railroad Express Co. v. Black, 3 Tex. Civ. App. 
 Co., 10 La. Ann. 33, 63 Am. Dec. 586; 363. 
 
 ?<?7of° ^- Wright, 24 Wend. (N. Y.) 'Donalioo v. Scott, Tex. Civ. App. 
 
 429, 35 Am. Dec. 633 ; Flemington v. 30 S. W. Rep 385 
 
 Smithers, 2 C. & P. 292, 13 E. C. L., 'Chicago & Grand T. Ry..Co. y. 
 
 ,„r T .. », Spurney, 69 111. App, 549, 2 Am. Neg. 
 
 2 Wyman T. Leavett, 71 Me. 227, 36 Rep. 505 ; Illinois Cent. R. R. Co. v. 
 Qi°;>T-^P' on,.' ^^^,T "'• ^^'I'^ay Co., Cole, 165 111. 334; Chicago, B. &Q. R. 
 36 Minn. 290; Pullman Palace Car R. Co. v. Hines, 45 111. App. 299 ; West 
 
 °n 1 f ""^^^^ I ^:^^- '^'^- •^PP- 336. Chicago St. Ry. Co. v. James, 111. App. 
 fi7n « ' f^"- \ ?• '^°- ^- ^°^' ^^ Tex. 2 Am. Neg. Rep. 700. 
 670; Hyatt v. Adams, 16 Mich. 180; 
 
^69 MENTAL SUFFERING. § 140 
 
 the party in fault ought to have known that the result 
 would follow his act.' 
 
 §140. Injury to Feelings. No damages for injury to 
 feelings can be recovered in an action for conspiracy in 
 pursuance of which the hearse and carriages were taken 
 away from a funeral just at the time when they were 
 needed, since there is no physical injury with which the 
 injury to the feelings is connected.^ But such act will 
 justify an award of examplary damages, when the act 
 was done with full knowledge of the situation and for the 
 purpose of demonstrating the power of the association 
 to punish liverymen for doing business in an independent 
 way.' 
 
 > Smith V. Cable Co. 174 .Mass. 576, 49 L. R. A. 475. 
 47 L. R. A., 323. 'Gatzowv. Buening, 106 Wis. 1, 
 
 ^Gatzow V. Buening, 106 Wis., 1, 49 L. R. A. 475. 
 
i 141 
 
 DAMAGES FOR INJURIES. 
 
 270 
 
 CHAPTER XVII. 
 
 DAMAGES FOR INJURIES WfflCH CAUSE SICKNESS OR DEATH 
 
 OR DISEASE. 
 
 Sec. 
 
 
 Sec. 
 
 141. 
 
 Damages Recoverable. General 
 Principles. 
 
 147. 
 
 142. 
 
 Tendency to Disease. 
 
 148. 
 
 143. 
 
 Proof. Principle of Recovery. 
 
 149. 
 
 144. 
 
 Evidence of Cause of Illness. 
 
 150. 
 
 145. 
 
 Existing Disease. Predisposi- 
 tion. 
 
 151. 
 
 146. 
 
 Latent Disease, Delicate Health, 
 Miscarriage, Fever. 
 
 
 Damages. Amount. No Gen- 
 eral Rule. 
 
 Limitation of Damages. 
 Future Effect of Injury. 
 Question for Jury. Mitigation. 
 Verdicts Recovered for Disease 
 Developed by Injury. 
 
 § 141. Damages Recoverable. Greneral Principles. 
 
 The damages which may be recovered for a personal 
 injury include all the natural effects thereof, in whatever 
 form they may appear, whether in a direct injury to the 
 person, or causing a sickness or in the development of some 
 disease chronic in its nature and existing in the system, 
 orin the impairment of the general health. Every dis- 
 ease or sickness must be attributed to or is produced 
 by some agency, known or unknown. 
 
 If a person receiving an injury sustains such a fright 
 or shock to the system as to cause nervous prostration, 
 or a dangerous and serious fever, or the development or 
 aggravation of a chronic disease, or premature death, the 
 person who negligently causes these results or is respon- 
 sible therefor, must respond in damages. But these 
 effects or consequences must be shown or appear to have 
 been the direct and natural result of the injury. They 
 must come within the rule of proximate damages. 
 
 The damages which may be recovered must be a rea- 
 sonable compensation for the injury done, so far as it 
 can be. The tendency to disease, or the possession of a 
 highly nervous temperament, form no defense or mitiga- 
 tion of damages. 
 
 The liability attaches to the person responsible for the 
 cause of the injury. The question resolves itself down 
 to this proposition, was the injury the natural and proxi- 
 mate cause of the sickness or disease which manifested 
 
271 DAMAGES FOR INJURIES. ? 141 
 
 itself in the person receiving the injury? While the 
 sickness or disease may not have been the naturally 
 expected effect of the injury, still if the injury was the 
 procuring and mediate cause of such sickness or disease, 
 the wrongdoer is responsible therefor, and must respond 
 in damages.* 
 
 The reason why the wrongdoer is held liable for such 
 sickness or disea'se is based upon the principle that he 
 is responsible for all the consequences that ensue in the 
 ordinary and natural course of events, although those 
 events are brought about by the intervening agency of 
 others, provided the intervening agency was set in 
 motion by the primary wrongdoer or the acts causing 
 the damage were the necessary or legal and natural 
 consequence of the original wrongful act.^ 
 
 The most apt and frequent illustration of this rule in 
 relation to the concatenation of cause and effect is to be 
 found in the well known "Squib Case.'" In that case the 
 defendant threw a lighted squib into the market house, 
 in a market place, where a fair was being held, and the 
 squib feU upon a gingerbread stall, and the stall-keeper, 
 to protect himself and merchandise, threw the squib 
 across the market house, where it fell upon another stall. 
 It was again thrown and exploded near the plaintiff's 
 eyes and blinded him. The court held that the original 
 thrower was responsible in damages for the injuries sus- 
 tained by the plaintiff through t]ie intervening agency of 
 the others. De Grey, Ch. J., said: "All the injury was 
 done by the first act of the defendant. That, and all 
 the intervening acts of throwing must be considered as 
 one single act. It is the same as if a cracker had been 
 flung which had bounded and rebounded again and again 
 before it had struck out the plaintiff's eye. " 
 
 In an early American case the defendant had a quarrel 
 with a boy in the street. He took up a pickaxe and pur- 
 sued the boy who ran for safety into a wine shop and 
 turned over a cask of wine. The pursuer of the lad was 
 held liable for the wine.* So while a person ridmg a 
 
 iDralce y. Keily, 93 Pa. St. 492; MiuitigCo..50Mich. 163, 45Am. Rep. 
 
 Terre Haule & Ind. R. Co. v. Buck, 30 ; B='lt>n;ore Oty Pass. R R Co. v. 
 
 oRi^A 94fi 40 Am Ren 168: Brown Kemp. 61 Md. 74, 48 Am Kep. Jo*. 
 ^ ri'J,5 r„ 54 Wi^' 343- 41 Am. ^^ Addison on Torts (Wooded.), 13. 
 
 Ren lT-^Inte;;.atto^a & Gt. Not.h. » Scott v. Shepard 3 Wils 403. 
 
 R £o I: TeS? eTTex. 380. 50 Am. , * V.nderhurgh v. Trua^, 4 Den. 10 
 
 Rep. 529; Beauchamp v. Saginaw (N. Y.) 464. 
 
I 141 DAMAGES FOR INJURIES. 272 
 
 horse, which another whipped and caused to run away, 
 and to run over some other person and njured him and 
 his property, he who whipped the horse, not tlie person 
 who rode it, is responsible and liable for the injury done.^ 
 
 These rules have become universally accepted and 
 applied in cases of personal injuries received by pas- 
 sengers through the negligence of railway companies. 
 They are indisputable and necessary to secure to the 
 injured person his just rights and full compensation for 
 the wrong done to him. As said by Mr. Wood: "If a 
 passenger is, through tlie negligence of a carrier, left at 
 the wrong station late at night, whereby he is compelled 
 to walk a long distance to reach his place of destination, 
 and during his attempt to reach his place of destination^ 
 contracts a severe cold or is lamed by the exertion, it is 
 the rankest nonsense to say that there is no such immedi- 
 ate connection between the wrong and the injury as to 
 entitle the passenger to recover therefor, and the tend- 
 ency of the courts, both English and American, is to hold 
 that such injuries are sufficiently connected with the 
 wrong to be the subject of damages."^ 
 
 This same question was discussed in Ergott v. Mayor, 
 etc. 96 N. Y. 264, 48 Am. Rep. 622, where the court 
 said: 
 
 " When a party commits a tort resulting in a personal 
 injury he cannot foresee or contemplate the consequences 
 of his tortious act. He may knock a man down, and liis 
 stroke, many months after, end in paralysis or death, — 
 results which no one anticipated or could have foreseen. 
 A city may leave a street out of repair, and no one can 
 anticipate the results which may happen or the injuries 
 which may be caused." Again in the same opinion it is 
 said: 
 
 " While both causes were proximate, that was the near- 
 est and most direct. Still further, it was certainly im- 
 possible for the plaintiff to prove, or for the jury to find, 
 how much the injury was due to either cause alone. It was 
 wholly impossible for the jury to apportion the damages 
 between the two causes. Shall this difficulty deprive the 
 plaintiff of all remedy? We answer, no. The wrong of 
 
 'Gibbons v. Pepper, 2 Ld. Raym. (NT. S.) "81 ; Brown v Railroad Co., 54 
 
 38. Wis. 381; Drake v. Keily, 93 Pa. St 
 
 2 2 Wood Railway Laws, Sec. 317, p. 402 ; Purcell \. Railway Co., 48 Minn. 
 
 1232 ; McMahon v. Fied, 45 h. T. 134, 16 L. R. A. 'MS. 
 
273 DAMAGES FOR INJURIES. § 141 
 
 the defendant placed the plaintiff in this dilemma, and it 
 cannot complain if it is held for the entire damage." 
 
 In Beauchamp v. Saginaw Min. Co., 50 Mich. 963, a 
 boy while passing on a highway was injured by being- 
 struck on the side of his head by a stone from a blast 
 fired by the mining company, and, having died some five 
 or six months thereafter, an action was brought to 
 recover damages for his death, caused, as it was alleged, 
 by the negligence of the defendant. Among other 
 defenses it was alleged, and evidence was introduced to 
 show, that death was not caused by the injury, but by 
 specific or typical pneumonia; and it was sought to 
 take the case from the jury upon the ground that the 
 pneumonia, and not the injury received from the 
 stone, was the direct and proximate cause of the 
 death. Jt was contended, however, for the plaintiff that 
 owing to the broken and shattered condition of the boy's 
 system, caused by the injury received, and his increased 
 susceptibility to cold, pneumonia was supei'induced and 
 developed as a natural result of the injury. The question 
 was submitted to the jury upon the evidence, and they 
 found for the plaintiff, and the case was affirmed on 
 appeal. It was held that "if an original act was wrong- 
 ful, and would naturally and in the ordinary course of 
 events prove injurious to some other person or persons, 
 and does actually result in injury through the interven- 
 tion of other causes which are not wrongful, the jury shall 
 be referred to the wrongful cause, passing by those which 
 are innocent." 
 
 The court say: " We may well adopt what was said 
 in Baltimore & P. R. R. v. Reany, 42 Md. 117, where, 
 after speaking of cases where two or more independent 
 causes concur in producing an effect, and it cannot be 
 determined which was the efficient and controlling cause, 
 or whether, without the concurrence of both, the event 
 would have happened at all, the court added: ' But it is 
 equally true that no wrongdoer ought to be allowed to 
 apportion or qualify his own wrong ; and that, as a loss 
 has actually happened v?hile his own wrongful 'act was in 
 force and operation, he ought not to be permitted to set 
 up as a defense that there was a more immediate cause of 
 the loss, if that cause was put in operation by his own 
 wrongful act. To entitle such party to exemption he 
 
 18 
 
i 141 
 
 DAMAGES FOR INJURIES. 274 
 
 must show, not only that the same loss might have hap- 
 pened if the act complained of had not been done. Davis 
 V. Garrett, 6 Bing. 716.'" 
 
 In Drake v. Kiely, 93 Penn. St. 492, a lad, ten years of 
 age, was forcibly put on board a freight train by the brake- 
 man and carried five miles against his will. He returned 
 home on foot, running most of the way, and was taken 
 sick and became permanently crippled in both legs. 
 Held, that the court could not undertake to decide that 
 the trespass had no connection with the plaintiff's sick- 
 ness; nor that the latter was not the natural and probable 
 consequence of the former. Nor that it was not such a 
 consequence as under the circumstances might and ought 
 to have been foreseen by the defendants as likely to flow 
 from their conduct. These were necessarily questions 
 for the jury. Sterrett, J., said: "It was conceded that 
 the plaintiff had sustained some injury for which he was 
 entitled to recover, at least against one of the defendants, 
 but it was denied that his sickness and subsequent suf- 
 fering, in relation to which considerable testimony was 
 introduced, was the result of the trespass. In other 
 words, it was contended that the trespass was not the 
 proximate cause of the injuries. This was the main 
 question in the case, and in submitting it to the jury the 
 learned judge instructed them that if the plaintiff's sick- 
 ness was the direct result of the defendant's acts, 'that 
 is, if their acts, in connection with the plaintiff 's fright, 
 excitement and exertion in returning home were the 
 immediate cause of his sickness, he is entitled to recover 
 damages as well for the injuries resulting from his sick- 
 ness as from being put on the car and carried away. But 
 he cannot recover for injuries resulting from his sick- 
 ness if his own conduct constituted negligence on his 
 part which contributed in any degree to such sickness. 
 What would be negligence in an adult might not be negli- 
 gence in a boy ten years of age, and hence the jury, in 
 passing on the question of negligence, must have regard 
 to' the age and intelligence of the plaintiff at the time the 
 alleged injuries were received. If his sickness was not 
 the direct result of the acts of the defendants — was the 
 result of other causes, or if his negligence contributed 
 to his sickness in any degree, then he could recover only 
 such damages as he sustained by reason of having been 
 forcibly put on the ear and taken away; that is to say, all 
 
275 DAMAGES FOR INJURIES. § 141 
 
 damages he suffered prior to and independent of his sick- 
 ness; and these instructions will govern your verdict 
 whether under our subsequent instructions you will find 
 against George Drake only or against both defendants.* 
 The instruction thus given was both appropriate and ade- 
 quate, and is here referred to at length for the purpose 
 of showing how some of the detached sentences of the 
 charge assigned for error are explained and qualified by 
 the context. If the defendants below had desired other 
 or more specific instructions on the subject, they should 
 have preferred their request to the court. In Hoag v. 
 Railroad Co., 4 Norris, 293, our brother Paxson says: 
 'The doctrine laid down in Railroad Company v. Hope, 
 80 Penn. St. 373; s. c. 21 Am. Rep. 100, and to be 
 gathered incidentally perhaps from Raydure v. Knight, 
 is that the question of proximate cause is to be decided 
 by the jury upon all the facts in the case; and they are to 
 ascertain the relation of one fact to another, and how far 
 there is a continuation of the causation by which the 
 result is linked to the cause by an unbroken chain of 
 events, each one of which is the natural, foreseen and 
 necessary result of such cause. ' 
 
 "In determining what is proximate cause, the true 
 rule is, that the injury must be the natural and probable 
 consequence of the negligence; such a consequence as 
 under the surrounding cii-cumstances of the case, might 
 and ought to have been for seen by the wrongdoer as 
 likely to flow from his act. In view of the testimony in 
 this case, the court could not undertake to decide that 
 the trespass had no connection with the plaintiff's sick- 
 ness ; that the latter was not the natural and probable 
 consequence of the former. Nor that it was not such a 
 consequence as under the circumstances might and ought 
 to have been foreseen by the defendants as likely to flow 
 from their conduct. These were necessarily questions 
 for the jury. A. child of tender years was forcibly seized, 
 thrust into a car, locked up in a dark closet, and carried 
 five miles from home, released late in the evening, and 
 left to find his wav home as best he could. Was it an 
 unnatural or imp'robable result, that he should be 
 excited, nervous, terrified ; that he should make his way 
 home if he could find it, with all possible speed, and 
 without thought of consequence ? Was it at al unnatural 
 or improbable, that the abuse, excitement and exposure 
 
g 141 DAMAGES FOR INJURIES. 276 
 
 would result in some form of illness more or less severe? 
 And were not these such natural and probable conse- 
 quences as might and ought to have been foreseen by those 
 who committed the trespass? J f they were, it was not at all 
 necessary that they might and ought to have foreseen the 
 nature, severity or extent of such illness. To hold that 
 this was essential would be requiring entirely too much 
 in the interest of the wrongdoer. The actual results 
 depend very much on the physical condition and con- 
 stitutional tendencies of the person injured. In some 
 cases they might not be so serious; in others more 
 serious and even permanent, as in the present case." 
 
 In Baltimore City R. R. Co. v. Kemp, 61 Md. 74, 48 
 Am. Rep. 134, the plaintiff received an injury upon her 
 breast, in a collision, and subsequently a cancer was 
 developed at the place of injuiy. On the trial, medical 
 testimony was oifered by both parties, as to whether the 
 cancer was the result of the injury. The trial court 
 held that it was for the jury to determine, as a matter of 
 fact, whether the cancer did result from the injury 
 received in the collision. In determining this question 
 they were required to consider all the circumstances and 
 coincidences of the case, in connection with the testimony 
 of the professional witness. They were instructed that 
 if they believed, from all the evidence before them, that 
 the cancer was the natural and proximate consequence 
 of the blow inflicted by the negligent act of the defend- 
 ant, it would properly form an element to be considered 
 in awarding damages for the pain and injury suffered 
 by the plaintiff ; and that the fact that she may have had 
 a tendency or predisposition to cancer, could afford no 
 proper ground of objection to her claim. The Supreme 
 Court, by Alvey, C. J., said: 
 
 "The question is, whether the production of cancer, 
 as the result of any injury received by the negligence of 
 the defendant under the circumstances of this case, be 
 too remote a consequence of such negligence to form an 
 element of damages to the plaintiff. If a given result 
 can be directly traced to a particular cause, as natural 
 and proximate effect, why should not such effect be 
 regarded by the law, even though such cause may not 
 always, and under all condition of things, produce like 
 results? It is the common observation of all that 
 he effects of personal physical inju'nes depend much 
 
277 DAMAGES FOR INJURIES. ? 141 
 
 upon the peculiar conditions and tendencies of the 
 persons injured ; and what may produce but slight and 
 comparatively uninjurious consequences in one case, may 
 produce consequences of the most berious and distress- 
 ing character in another. And this being so, a wrongdoer 
 is not permitted to relieve himself from respcnsibility 
 for the consequences of his act, by showing that the 
 injury would have been of less severity if it had been 
 inflicted upon any one else of a large majority of the 
 human family. Hence the general rule is, that in actions 
 of tort like the present the wrongdoer is liable lor all 
 the direct injury resulting from his wrongful act ; and 
 that too although the extent or special nature of the result- 
 ing injui'3" could not, with certainty, have been foreseen 
 or contemplated as the probable result of the act done. 
 If, therefore, the .jury believed, from all the evidence 
 before them, that the cancer in the breast of Mrs. Kemp 
 was the natural and proximate consequence of the blow 
 received on the breast, by the negligence of the defend- 
 ants, it would properly form an element to be considered 
 in awarding damages for the pain and injury suffered by 
 her. 
 
 "If by the blow received a severe contusion had been 
 produced resulting in an ordinary tumor or open ulcer, 
 we suppose no question would have been raised as to the 
 right of the plaintiff to show such results of the injury 
 received, as indicating the extent of the injury and the 
 degree of suffering endured. Why should a different 
 rule be applied to this case? That the female plaintiff 
 may have had a tendency or predisposition to cancer, 
 can afford no proper ground of objection. She in common 
 with all other people of the community had a right to 
 travel or be carried in the cars of the defendants, and 
 she had a right to enjoy that privilege without incurring 
 the peril of receiving a wrongful injury that might result 
 in inflaming and developing the dormant germs of a fatal 
 disease. It is not for the defendant to say that because 
 they did not, or could not in fact, anticipate such a 
 result of their negligent act, they must therefore be 
 exonerated from liability for such consequences as 
 ensued. They must be taken to know, and to contem- 
 plate, all the natural and proximate consequences, not 
 only that certainly would, but that probably might flow 
 from their wrongful act. The defendants must be sup- 
 
I 142 DAMAGES FOR INJURIES. 278 
 
 posed to know that it was the right of all classes and 
 conditions of people, whether diseased or otherwise, to 
 be carried in their cars, and it might also be supposed 
 that they knew that a personal injury inflicted upon any 
 one with predisposition or tendency to cancer, might and 
 probably would, develop the disease." 
 
 § 142. Tendency to Disease. The tendency of the 
 injured person to rheumatic disease, or cancer, the pre- 
 disposition to malaria or pulmonary trouble or the pos- 
 session of a weak constitution, or of a highly nervous 
 temperament, by reason of which disease is more easily 
 ■caused or sickness more readily produced, and bj'' reason 
 of which there will be greater bodily pain and mental 
 anguish, are not admissible to mitigate damages, or 
 defeat a recovery. No one of them, or kindred agencies, 
 form any defense, if, upon the other proof, the injured 
 person has a right to a judgment.^ 
 
 If any sueh condition could be made a defense or afford 
 a reason for reduction of damages it would be manifest ; 
 first, that a field would be opened for speculation and 
 expert evidence, which would lead to confusion and 
 doubt; which would travel into sci.entific, philosophical 
 and theoretic questions without limit, and which would 
 be a source of great expense ; and second, that any per- 
 son possessing or susceptible to these conditions would 
 be subjected to greater embarrassment and apprehension 
 in pursuing his business, trade or profession, with their 
 necessary effects, and to less consideration and protec- 
 tion in his person than his more fortunate neighbor; and 
 third, that no additional safeguard can be thrown around 
 or given to such persons, because it is impossible to do 
 so, because many persons are ignorant of these conditions 
 in their systems, and which might never appear except 
 for the injury; and because there is no means by which 
 to anticipate the effect of an injury, however severe or 
 slight, as the effect so much depends upon the physical 
 
 " Purcell V. Railway Co., 48 Minn. Louisville, etc., R. R. Co. v. Falvey, 
 134, 16 L,. R. A. 203 ; Baltimore City 104 Ind. 409, 3 N. E. Rep. 389, 9 Am. 
 R. Co. V. Kemp, 61 Md. 74, 48 Am. & Eng. Rd. Cas. 407 ; Brown v. Rail- 
 Rep. 184; Houston, etc., R. R. Co. way Co., 66 Mo. 58; Stuart v. Ripon, 
 V. Leslie, 67 Tex. 83 ; Louisville, etc., 38 Wis. 591. 
 R. R. Co. V. Jones, 108 Ind. 551; 
 
279 DAMAGES FOR INJURIES. § 142 
 
 condition of the person at th§ time of the injury, and 
 upon the care and treatment which may be given/ 
 
 In Louisville, etc. R. H. Co. v. Falvey, 104 Ind. 409, 
 the plaintiff was a married woman, and in a collision of 
 railway trains on the defendant's road, she received an in- 
 jury which produced partial paralysis of the muscles of 
 the eye ; and a disease of the spine was also developed as 
 a result thereof. 
 
 The court gave these instructions: "A common car- 
 rier of passengers is bound to carry and transport for 
 hire persons who are sick, weak, debilitated, or predis- 
 posed to disease as well as those who are healthy and 
 robust; and if you find from the evidence that the plain- 
 tiff received the injuries complained of, or any of them, in 
 the manner alleged in the complaint, and that at the time 
 of the reception of said injuries, or any of them, the 
 plaintiff was predisposed to malarial, scrofulous, or rheu- 
 matic tendencies, but otherwise in good health; and you 
 further find that said injuries, or any of them, solely 
 excited or developed said predisposition to malarial, 
 scrofulous or rheumatic tendencies, so that thereby, with- 
 out the fault of the plaintiff, her present condition, what- 
 ever you may find that to be, has directly resulted; 
 then I instruct you that the plaintiff is entitled to recover 
 to the full extent of whatever you may find her present 
 condition to be. The court further instructs the jury 
 that the plaintiff must show, by a preponderance of the 
 evidence, that any injuries, ailments, or diseases from 
 which she is now suffering, if any such there be, are the 
 result of her injuries sustained at the time of the acci- 
 dent in evidence. And the court further instructs the 
 jury that unless they find the facts to be so established 
 by a preponderance of the evidence, they cannot assume 
 that such injuries, ailments or diseases have resulted 
 from said accident. ' ' 
 
 The Supreme Court said : " The first of these instruc- 
 tions was given upon the request of the appellee; the 
 second upon the request of the appellant. Taken to- 
 gether, they express the law quite as favorably to the 
 appellant as it had any right to ask. The instruction 
 
 1 Baltimore, etc., Ry. Co. v. Kemp, McNamara v. Village, etc., 62 Wis. 
 
 supra ; Terre Haute, etc., R. R. Co. v. 207, 51 Am. Rep. 722 ; Lapleme v. Mor- 
 
 Buck, 96 Ind. 347 ; Ehrgot v. Mayor, gan's L. & T. R., etc., Co., 40 La. Ann. 
 
 etc., 96 N. Y. 264, 48 Am. Rep. 622 ; 661, 1 L. R. A. 378. 
 
? 142 DAMAGES FOR INJURIES. 280 
 
 asked by the appellee standing alone, contains nothing 
 of which the appellant can justly complain. " 
 
 In International & Great Northwestern R. R. Co. v. 
 Tet-ry, (52 Tex. 381, the plaintiff contracted pneumonia 
 fi'om exposure while riding upon a train of the defendant 
 railroad. The court held that the pain endured and suf- 
 fered, the expense paid and incurred, and the loss which 
 his business sustained, by reason of the injury, both 
 present and prospective, were proper elements of dam- 
 ages. 
 
 In Ohio & M. R. Ry. Co. v. Hecht, 115 Ind., 443, it 
 appeared that Bright's disease at the time of the trial 
 had been developed or superinduced by the injury, and^ 
 it was held that although the plaintiff already had an 
 existing disease in his system which was aggravated by 
 the injury, still he was entitled to recover full damages 
 notwithstanding the existence of such disease in his sys- 
 tem. 
 
 In Terre Haute & Ind. R. R. Co. v. Buck, 96 Ind. 346, 
 49 Am. Reports, 168, it appeared that Andrew J. Buck, 
 the appellee's intestate was in robust health prior to the 
 night of December 9, 1881, when he took passage on the 
 train of the defendant at the town of Darlington for the 
 'Station of Sugar Creek. Both places were regular stations 
 at which passengers were received and discharged, and 
 the train on which the deceased took passage stopped at 
 Sugar Creek. The train whistled for the station but the 
 brakes did not work and it ran by the station eighty-flv-e 
 feet beyond its usual stopping place. The deceased 
 stepped from the car and fell through a bridge a distance 
 of nineteen feet and struck upon some rocks which 
 formed the bed of a stream. The night was dark and 
 there were no lights at the place where the train was 
 stopped, and the deceased lived but a short distance from 
 the regular station where it was a safe place to alight. 
 He was found in the creek and was taken to a house near 
 by when he soon became delirious. The effects of the 
 injury developed into typhoid-malarial fever from which 
 he died. And the question was whether his death was the 
 result of the injury which he received, and it is discussed 
 at length by the court citing a large number of authori- 
 ties. It was held by the court that where one is injured 
 by the negligence of another and the injury renders the 
 system more susceptible to disease and less able to re- 
 
281 DAMAGES FOR INJURIES. ? 142 
 
 sist it and death results from such disease, the death is 
 legally attributable to such injuries and the wrongdoer 
 is liable for all the damages sustained. 
 
 In Crane Elevator Co. v. Lippert, 63 Fed. ,Rep. 942, 
 531, an action was brought by Frank Lippert against the 
 Elevator Co. for personal injuries sustained to his arm 
 by a fall in the hallway occasioned by obstructions placed 
 in it and was hurt on the 13th day of September, 1891. 
 After some treatment he went to the hospital November 
 19, where he was operated upon by a surgeon. He was in 
 bed at the hospital about a month and had to carry his 
 arm in a sling until Christmas. About a week before 
 leaving the hospital, a piece of diseased bone was taken 
 out of his arm. His arm has pained him ever since he 
 left the hospital, especialty when he has taken any cold. 
 Whether the usefulness of the arm will be permanently 
 impaired or not is a disputed question. Since his dis- 
 charge from the hospital he has worked about six or seven 
 weeks. 
 
 The medical testimony tended to show, that when ad- 
 mitted to the hospital he was suffering from tubercular 
 osteomyelitis resulting from the presence of microbes or 
 tubercular germs in his system; bhat if these microbes or 
 germs were not present in his system, the fall and conse- 
 quent bruise would not have resulted in the serious in- 
 jury from which he suffered. The court held that 
 while a person at the time of receiving a personal injury 
 has- microbes in his system which is aggravated by it, 
 that fact does not relieve from responsibility the person 
 whose negligence caused the injury, where it does not 
 appear that the microbes would have done harm by them- 
 selves. 
 
 In Louisville, New Albany & Chicago R. R. Co. v. Sny- 
 der, 117 Ind. 435, 3 L. R. A. 434, it appeared that the in- 
 jured party was suffering from Bright's disease at the 
 time he received his injury, and the court held, that a 
 person is not deprived of his rights to recover full com- 
 pensation for personal injui'ies for the reason that he was 
 at the time suffering from a disease which was aggravated 
 by it. 
 
 In Lapleine v. Morgan's L. & T. R. Steamboat Co., 42 
 La Ann. 661, 1 L. R. A. 378, it appeared that the plaintiff, 
 a little girl eight years old before the injury had been a 
 bright, intelligent, active and thoroughly healthy child. 
 
? 142 DAMAGES FOR INJURIES. 282 
 
 From the time she reqeiv^ed the injury she became and 
 has remained a constant invalid, seriously affected in 
 mind and body, her nervous system shattered, subject to 
 headache, attacks of nausea and vomiting, to frequent and 
 sudden fainting and falling fits, emaciated, indisposed to 
 physical or mental exertion,. dragging her limbs in walk- 
 ing, and otherwise afflicted. At the time of this trial 
 about two years had elapsed since the accident, and though 
 slightly improved the child continues to a great extent 
 affected, as above indicated. The medical testimony indi- 
 cates that it is doubtful when or whether she will ever 
 entirely recover. The court said: 
 
 "But defend£int maintains that the physical injuries 
 directly inflicted upon the child were slight and unim- 
 portant, and utterly inadequate in themselves to produce 
 the disastrous results which have been manifested; that 
 these results have been occasioned by the peculiar consti- 
 tution of the child, who inherited from its mother a hyster- 
 ical tendency, or diathesis, the development of which has 
 intervened as the operative and efficient cause of her af- 
 fliction and sufferings; and that the accident is not, 
 therefore, the true causa causans, — the proximate and effi- 
 cient cause, — casting responsibility upon defendant. We 
 are by no means satisfied that the external manifestations 
 indicate conclusively the extent and nature of the injury 
 received, or that the shock and derangement of the nerv- 
 ous centres and spinal cord may not have been sufficient 
 to produce like results in an ordinary constituted child. 
 It is, however, proved that the mother of the child is 
 subject to hysteria; that hysteria is, in many cases, heri- 
 table; and that the symptoms of the child's affliction 
 are in many respects of hysterical character. But it is 
 very certain that the child had never exhibited the 
 slightest symptom of hysteria or other constitutional 
 disease prior to this accident. The medical testimony 
 does not establish that hysteria is necessarily or univer- 
 sally inherited; and it does not appear that, but for this 
 accident, Marie might not have passed her entire life 
 without the slightest development of hysteria. Admit- 
 ting, therefore, that the child had a latent hysterical dia- 
 thesis, in order to escape liability it would devolve on 
 defendant to show that such diathesis was by itself a 
 sufficient independent cause which would have operated in 
 
283 DAMAGES FOR INJURIES. § 142 
 
 producing or aggravating the damage independently of 
 the accident. 
 
 "In this defendant has entirely failed. If the hysterical 
 diathesis concurred with the accident in producing the 
 damage, in determining which of the two is the proxi- 
 mate cause, we must inquire which was the cause that 
 set the other cause in motion. In the language of the 
 Supreme Court of the United States: 'The proximate 
 cause is the efficient cause; the one that necessarily sets 
 the other causes in motion. ' Aetna Ins. Co. v. Boon 95 
 U. S. 117 (24 L. ed. 395).. 
 
 "We think, however, thp doctrine is not sound and is not 
 in accord with the weight of authority. The duty of care 
 and of abstaining from injuring another is due to the 
 weak, the sick, the infirm, equally with the healthy and 
 strong; and when that duty is violated the measure of 
 damage is the injury inflicted, even though that injury 
 might have been aggravated, or might not have happened 
 at all but for the peculiar physical condition of the per- 
 son injured. Thus in one case a person afflicted with 
 scrofulous disease was injured by the negligence of a 
 municipal corporation in failing to keep its streets in re- 
 pair, and suffered damages greatly in excess of y\ hat he 
 would have suffered but for his disease; yet the court 
 held that the corporation was bound to keep its streets 
 in repair for the sick and infirm as well as for the well, 
 and held the city liable for the whole damage. 
 
 "The inheritance of an hysterical diathesis (if it ex- 
 isted) was a misfortune, but certainly not a fault, in this 
 child; in no manner diminished her right to protection 
 from injury by the fault of the defendant. Prior to this 
 accident she had never suffered from this latent constitu- 
 tional taint. But for the accident she might never have 
 suffered from it. The accident was the direct, immedi- 
 ate and efficient cause which set in motion all other 
 causes which created or aggravated the damage; and the 
 defendant is justly bound to answer for these deplorable 
 consequences of his fault. There is evidence, however, 
 showing that the child's affliction and injury have been 
 aggravated by the injudicious conduct and treatment of 
 her mother. For such aggravation of the damage suf- 
 fered it goes without saying that defendant cannot be held 
 liable. We need not particularize as to the nature of this 
 conduct, except to say that it does not reflect upon her 
 
§? 143-144 
 
 DAMAGES FOR, INJURIES. 284- 
 
 sincerity, but only on her injudicious sympathy, encour- 
 agement, and excitement of the child's disordered 
 nervous system. This and some other considerations lead 
 us to reduce the damages allowed by the jury." 
 
 § 143. Proof. Principle of Recovery. The princi- 
 ple upon which damages are awarded for sickness or dis- 
 ease is that the injury is the direct and proximate cause 
 for the manifestation of the sickness or for the develop- 
 ment of the disease. It is the product or natural conse- 
 quence of the act or acts of the person responsible for 
 the accident and injury. It is the necessary result of 
 cause and effect, whether it be negligence or failure to 
 obey some law or perform some duty enjoined or required 
 by statute or by the common law to be done by the de- 
 fendant. The proof must establish the fact by a fair pre- 
 ponderance that the sickness or disease were caused, as 
 a natural and probable result, by the injury, within a 
 reasonable degree of certainty. It cannot be left to con- 
 jecture or speculation.^ 
 
 § 144. Evidence of Cause of Illness, When Admis- 
 sible. In an action for damages against a railroad for 
 negligent injury, evidence of nervous prostration and a 
 general weakening of the plaintiff's system, the result of 
 the company's negligent act, is admissible." 
 
 Evidence is admissible of sickness of plaintiff's wife, 
 caused by fright, the result of a forcible entry upon 
 plaintiff's close.' 
 
 An old woman was put off of the train several hundred 
 yards from the station on a cold, rainy night ; evidence 
 as to whether such an act was the cause of a subsequent 
 illness was admitted.* 
 
 Plaintiff fell upon a defective sidewalk. She afterwards 
 had a pain in her left breast, and a cancer developed 
 there. Evidence was admitted as to whether the cancer 
 was the result of the fall or was hereditary. ° 
 
 1 Stewart v. Ripon 38 Wis. 364; 85 Ga. 482 ; 21 Am. St. Rep. 169, and 
 Jeffersonville, etc., R. R. Co. v. Riley, note. 
 
 39 Md. 568; Allison v. Railroad Co., 'Razzo v. Varni, 81 Cal. 289. 
 
 42 Iowa, 271 ; Oliver v. Lavalle, 36 « St. Louis, etc., Ry. Co, v. Burns, 
 
 Wis. 592; Pitzpatrick v. Railroad Co., 71 Tex. 479 ; Atlanta, etc., R. R. Co. 
 
 12 Upper Canada, Q. B. 645 ; Houston v. Smith, 81 Ga., 620. 
 
 V. Traphagen, 47 N. J. L. 23. ^xrapnell v. City of Red Oak Junc- 
 
 2 Chattanooga R. R. Co. v. Liddell, tion, 76 Iowa, 744. 
 
285 DAMAGES FOR INJURIES. 
 
 145-146 
 
 §145. Existing Disease. Predisposition. Where a 
 disease alreadj^ existing in the system was aggravated 
 by the injury, the injured person is still entitled to re- 
 cover full damages for the effects of the injury.' This 
 principle is based upon this reason, that it is an injury 
 wrongfully to cause, aggravate or protract an illness or 
 disease.* 
 
 In Shumway v. Walworth, etc. Mfg. Co., 98 Mich. 411, 
 there was some evidence tending to show that the plain- 
 tiff was afflicted with scrofula which aggravated the in- 
 jury to his hand. The court said: "The fact that the 
 plaintiff was afllicted with a scrofulous difficulty, which 
 rendered it possible, or even likely, that a slight injury 
 would produce more serious results than if afflicted upon 
 a perfectly healthy person, does not put him beyond the 
 pale of the law, or prevent a recovery of such actual dam- 
 ages as he has sustained." 
 
 If the person is predisposed to an illness or disease, 
 which an injury may develop or aggravate, on account of 
 his previous condition of life, still he is entitled to 
 recover full damages for the result of the injury.^ 
 
 If the disability or disease already existed or had man- 
 ifested itself in the system, as where the injured person 
 had tuberculosis or other serious ailments, then the 
 wrongdoer is only liable for such additional disability or 
 damages as resulted from the injury caused to him.* In 
 such a conditition, the disability or disease applies to and 
 affects the amount of damages which the injured person 
 is entitled to recover.^ 
 
 If at the time of the accident, the plaintiff was suffer- 
 ing from a disease, that fact may be shown to establish 
 that the recovery from the accident was retarded by the 
 disease.' 
 
 § 146. Latent Disease. Delicate Healtli. If a 
 latent disease existed in the system which had never be- 
 fore manifested itself until after the injury, and which 
 
 lOhio & M. R. Co. V. Hecht, 115 Lippert, 63 Fed. Rep. 942, 11 C. C. A 
 
 Ind. 441 ; Shum-sray v. Walworth, etc., 521. 
 
 Mfg. Co., 98 Mich. 411; I^oui-sville, * Whalen v. Railway Co., 38 Fed. 
 
 etc., R. R. Co V. Northington, 91 Rep. 15; Brooks v. Railway Co., 156 
 
 Tenn. 56 ; Louisville, etc., R. R. Co. N. Y. 244 (189S) ; Schwingschlegel v. 
 
 V.Jones, 108 Ind. 551 ; Woodward v. Monroe (Mich.), 72 N. W. Rep. 7. 
 
 Boscobel, 84 Wis. 226. ' S c h w i n g.schlegel v. Monroe 
 
 2 Gray v. Latham, 81 Ga. 620. (Mich.), 72 N. W. Rep. 7. 
 
 'Purcell v. St. Paul St. Ry. Co., 48 « Fuller v. Mayor, 92 Mich. 197, 52 
 
 Minn. 134 ; Crane Elevator Co. v. N. W. Rep. 1075. 
 
g 146 DAMAGES FOR INJURIES. 286 
 
 was developed by and followed from it, it is a proper ele- 
 ment of damages,' as scrofulous tendency," consumption,' 
 erysipelas,* paralysis,^ catarrh," pneumonia,' serious ill- 
 ness,* hip disease,' rheumatic fever,'" epileptic fits," 
 rupture,'" hernia,'" incurable disease of lungs,'* fibula,'* 
 diabetis,'" asthma," sciatic nerves.'* 
 
 Ignorance of the State of Health or of the Exist- 
 ing Disease in the plaintiff offers no excuse for refusal 
 or mitigation of damages. The defendant is fully re- 
 sponsible for the consequences of the negligent act as 
 though it or its employees had full knowledge of the true 
 condition of things." 
 
 Delicate Health. If the injured person is in delicate 
 health, she is not limited to damages, that would have 
 resulted if she had been in good physical health as where 
 a miscarriage follows from the injury."" 
 
 Child-Bearing. It is an element of damage, that the 
 injury might cause the bearing of children dangerous to 
 life."' 
 
 Miscarriage. Where a pregnant woman was injured 
 by the negligent act of the defendant, resulting in mal- 
 
 'Lapleine v. Morgan, etc., Rd., 40 » Houston & Tex. R. Co. v. Shafer, 
 
 I,a. Ann. 661; Louisville, etc., R. R. 54 Tex 644; Calder v. Smalley, 64 
 
 Co. V. Falvey, 104 lud. 409. Iowa 219. 
 
 2 Stewart v. Ripon, 38 Wis. 584; "Schafer v. Gilmer, 13 Nev. 330. 
 
 Shumway v. Mfg. Co.. 98 Mich. 411. 15 South Cov. & Cin. St. Ry. Co. v. 
 
 Harley v. N. Y., etc. Brewing Co., Ware, 84 Ky. 267. 
 
 43 N. Y. Supp. 259. w Newman v. Alabama Gr. S. & C. 
 
 Dickson V. Hollister, 123 Pa. St. R. Co. 38 Fed. Rep. 819. 
 
 ■^^.'Vt ■. , r, " Wallace v. Vacuum Oil Co., 12 N. 
 
 United States v. Juniata, 93 U. S. Y. Supp., 425 
 
 ^F,l?'^^°„^ ^- ^'- ^^^^ ^'*y ^- ^°- " Ivockwood V. Railway Co., 7 N. Y. 
 
 48 Minn 2fi Supp. 663. 
 
 " Quackenbush v. Railway Co., 73 ^ Brown v. Railway Co., 54 Wis. 
 
 Iowa, 458. 34L';Stuartv. Ripon, 38 Wis. 591. 
 
 'International & Gr. N. R. Co v. 2«Tice v. Munn 94 N Y 621- 
 
 Terry, 62 Tex, 380, 50 Am. Rep. 529. Driess v. Frederick, 73 Tex. 461 ; 
 
 «Drakev. Kiely 93 Pa. St., 492.4 Owens v. Railway Co, 95 Mo. 169; 
 n V r, r. °^^i Houston & Tex. Sloane v. Railway Co., Ill Cal. 669; 
 Centr. R^ Co. v. Fredericks (Tex,), Brown v. Railway Co., 54 Wis. 342, 
 plt^"" ^""Sr o-,J'°,'if; Vosburg v. 41 Am. Rep. 41; Fitzpatrick v. Rail- 
 Putney, 86 Wis. 278, 14 L. R. A., 226. way Co. 12 Queen's Bench, 645, Upper 
 
 m'^^\''^^n H°\^l''' 1^ ^^- 5^^- C«"^da ; Ramsden v. Railway Co., 
 
 «;,L2 QA7 ""■ ^^""■^^ ^^'^' ^2 N- Y- 104 Mass. 1 17, 6 Am. Rep. 200 ; Joliet 
 
 ifrVifflf;, T> •, ^ .. ^ V. Conway, 17 Dl. App. 577 (affirmed). 
 
 Rep 574 ^' ^^"^^y ^°- 44 Fed. See Ehrgott v. Mayor, etc., 96 N. Y. 
 
 <Sun^^7?. w-^t'^7 1°''-?^ ^•^- ^^"*''Alabama& Southern R.R. Co. V. 
 foTeV!'2M Pac."Re"p. 682!"'^ ^°- ^^"' '' ^'^^ '''■ 
 
287 DAMAGES FOR INJURIES. g 147 
 
 formation of the child, and its subsequent delivery still- 
 born, the author of the negligence was held liable for 
 the whole damage/' To the same effect where a miscar- 
 riage was caused. 
 
 Fever. In Williams v. Vanderbilt, 28 N. Y. 217, the 
 defendant entered into an agreement to carry the plain- 
 titt from New York to San Francisco, via Nicaragua. In 
 consequence of a wreck of the connecting steamer at the 
 Isthmus on the Pacific coast, he was detained several 
 weeks at that place, where he contracted a fever which 
 disabled him for a long time after his return to New York. 
 It was held that the plaintiff was entitled to recover 
 damages for the loss which he had sustained. ^^ 
 
 § 147. Bamages, Amount— No General Rule. It 
 is hardly necessary to state that an accurate or mathe- 
 matical rule by which to determine the amount of com- 
 pensation which the injured person should recover can- 
 not be given in this class of cases. 
 
 The facts must be shown to establish the negligence or 
 liability of the defendant, and that from such negligence 
 or cause, the disease or sickness was the result. Such 
 facts, if disputed, must be so proved, as to authorize 
 the court to render a judgment or to submit the questions 
 to a jury. The amount of damages must be determined 
 from the evidence, showing the extent of the sickness 
 and suffering or the kind and peculiarity of the disease 
 caused and developed, including its probable future 
 effects. Each case must be considered and decided by 
 and from its own facts, circumstances and results. The 
 reasons therefor are to a large measure the same as those 
 which govern and control the compensation to be awarded 
 in the elements of damages for bodily pain and mental 
 suffering. A little reflection will demonstrate the force and 
 application of these rules and the reasonableness thereof. 
 
 No other rules or principles will apply from the very 
 nature and exclusive character of the injury and of its 
 effects. 
 
 22Shartle v. Minneapolis, 17 Minn. ^s i>o the same eflFect: Cincinnati' 
 308; Oliver v. Lavalle, 36 Wis. 592; H. & I. R. Co. v. Eaton. 94 Ind. 474' 
 Brown V. Railway Co., 54 Wis. 342, 41 48 Am. Rep. 179; Mardock v. Rail- 
 Am. Rep. 41 ; Chicago, etc. R. R. Co. road Co., 133 Mass. 76; Pullman 
 T. Hunerberg, 16 111. App. 387; Fitz- Palace Car Co. v. Bluhn, 109 III. 70; 
 gerald v. Railway Co., 12 TJ. C. Q. B. Terre Haute & Ind. R. Co. v. Buck, 
 645; Ramden v. Railway Co.. 104 97 Ind. 469; Houston & Tex. Cent. 
 Mass. 117, 6 Am. Rep 200; Joliet v. R. Co. v. Leslie, 57 Tex. 83. 
 Conway, 17 111. App. 577. 
 
? 148 DAMAGES FOR INJURIES. 288 
 
 § 148. Limitations of Damages. There is no rule of 
 law limiting or fixing the amount of damages which the 
 injured person may recover, except that they must be 
 reasonable. Each case must be considered and deter- 
 mined from its own facts and circumstances. The dam- 
 ages must be awarded upon the evidence, showing the 
 extent and nature of the injury; the loss of time; bodily 
 pain and mental suffering; the effect upon the ability and 
 capacity of the injured person, expenses paid and incur- 
 red.^ The damages must be left to the sound discretion 
 and judgment of the jury called for that purpose. 
 
 In Louisville & N. A. R. Co. v. Falvey, 104 Ind. 409, 
 the trial court gave the following instruction: 
 
 "If you find under the evidence that the plaintiff is 
 entitled to recover, it will be your dutj' to assess the 
 amount of damages which, in your judgment, she should 
 recover. In estimating this amount you may take into 
 consideration expenses actually incurred, loss of time 
 occasioned by the immediate effect of her injuries, and 
 physical and mental suffering caused by, and arising out 
 of, her injuries. In addition, you may consider the pro- 
 fessional occupation, if any, of the plaintiff, and her 
 ability to earn money, and she will be entitled to recover 
 for any permanent reduction of her power to earn money 
 by reason of her injuries ; and the amount assessed should 
 be such a sum as, in your judgment, will fully compen- 
 sate her for the injuries, or any of them, thus sustained." 
 
 The Supreme Court said: "One of the objections 
 urged to this instruction is that it does not require the 
 jury to assess the damages from the evidence in the case. 
 There is no force in this objection. No juror of average 
 intelligence could fail to understand that the court di- 
 rected him to be guided by the evidence. Speaking of an 
 instruction very similar to the one under immediate 
 mention, it was said by Worden, J., in Indianapolis v. 
 Scott, 72 Ind. 196, that, ' The court enumerated certain 
 matters that formed the elements of damages. But no 
 jury of reasonable intelligence could have been misled 
 into the supposition that such matters could be con- 
 sidered unless shown by the evidence. As to the latter 
 part of the charge, the jury could not suppose that they 
 were authorized to find anything except from the 
 
 1 Louisville & N, A. R. Co. v. Falvey, 104 Ind. 409. 
 
289 DAMAGES FOR INJURIES. 
 
 149-150 
 
 evidence. ' The instruction before us properly enumer- 
 ates the elements to be considered in estimating the 
 damages. If the capacity of the plaintife to earn money 
 was diminished by injury, she is entitled to be compen- 
 sated, and the impairment of her ability to earn money is 
 an element to be considered in computing the amount of 
 the recovery." 
 
 In Ehrgott v. Mayor, etc., 96 N. Y. 264, 48 Am. Rep. 
 622, Earl, J., for the court, said : "Here as I understand 
 the findings ol the jury, the plaintiff's injuries would not 
 have been suffered but for the strain and shock of the 
 accident. While both causes were proximate, that was 
 the nearest and most direct. Still further, it was cer- 
 tainly impossible for the plaintiff to prove, or for the jury 
 to find, how much of the injury was due to either cause 
 alone. It was wholly impossible to apportion the dam- 
 ages between the two causes. Shall their difficulty de- 
 prive the plaintiff of all remedy? We answer, no. The 
 wrong of the defendant placed the plaintiff ' in this di- 
 lemma, and it cannot complain if it is held for the entire 
 damage. ' ' 
 
 § 149. Future EflFect of Iiyury. If it should fairly 
 appear on the trial that it is reasonably certain that the 
 injured person may and will suffer from the disease 
 caused by the injury, in whatever form the particular 
 disease caused thereby may manifest itself, with all its 
 natural results ; or that such injured person may suffer 
 under certain conditions and circumstances, periodically 
 or otherwise, bodily pain, etc. ; or that the peculiar effect 
 of the injury will disable and incapacitate him in the 
 future in his business ; any one or all of such facts, 
 shown by competent evidence and confined vrithin rea- 
 sonable limits, are proper for the consideration of the 
 jury. They form distinct elements of damages, affect- 
 ing the future earnings of the injured person and come 
 within the fourth general element of damages, known as 
 proximate damages; and which diminish, in part or in 
 whole, the ability of the injured person to pursue his bus- 
 iness, trade or profession. 
 
 § 150. Question for Jury. Mitigation. In all cases 
 where an illness or disease has been developed or ag- 
 gravated, in an action for a pergonal injury, it should be 
 
 19 
 
g 151 DAMAGES FOR INJURIES. 290 
 
 left to the jury under proper instructions, to find and 
 ascertain whetiier the illness or disease so developed or 
 aggravated is attributable to the negligence of the de- 
 fendant, in whole or in part.' 
 
 If such illness or disease is attributable to the negli- 
 gence of the defendant, then the wrongdoer would be 
 liable for all the damages sustained by reason of the in- 
 jury and resulting therefrom. But if acts or conduct of 
 the plaintiff, he being cognizant of his tendency or pre- 
 disposition to disease, were such as to constitute con- 
 tributory negligence on his part, and to cause the devel- 
 opment or aggravation of the sickness or disease, then it 
 would become a question for the jury to say how far the 
 conduct of the plaintiff contributed to the result ; and to 
 eliminate from the damages so much as was caused by 
 his negligent act.'' 
 
 § 151. Verdict Recovered for Disease Developed 
 
 by Injury. Ln the argument of cases it often becomes 
 convenient to know what damages have been given and 
 recognized by the courts as a reasonable compensation 
 for the several kinds of disease developed or aggravated 
 in actions for personal injuries. While it is not neces- 
 sary to give the details of these eases, a reference to the 
 amount and nature of the sickness or disease developed 
 and the amount of damages allowed will serve the pur- 
 pose for which they are given. 
 
 $15,000; asthma, heart disease; plaintiff ^ a vigorous 
 man fifty-nine years old, lost an eye; hearing impaired; 
 neck stiffened; face disfigured; spine injured and nerv- 
 ous system shattered; Wallace v. Oil Co., 12 N. Y. Supp. 
 425. 
 
 $2,500; ailments, serious; Crank v. Street Rv. Co., 6 
 N. Y. Supp. 229. 
 
 $4,500; Bright's disease; Freeport v. Isbell, 93 111. 381, 
 25 Am. Rep. 407. 
 
 $1,753; Bright's disease; Buting v. Hogsett, 21 Atl. 
 Rep. 33. 
 
 $3,200; bloody tumor; pleurisy; Wynn v. Railway Co., 
 156 N. Y. 702, 51 N. E. Rep. 1094. 
 
 1 Terre Haute, etc., R. Co. v. Buck, Baltimore City Pass. Ry. Co. v. Kemp, 
 94 Ind. 346; Loui.sviUe, etc., R. R. 61 Md.,619; Brown v. Railroad Co., 
 Co. V. Jones, 108 Ind. 551 ; Louisville, 64 Wis 343. 
 
 etc., R. R. Co. V. Falvey, 104 Ind. 499; ^Fuller v. Jackson, 92 Mich. 197, 52 
 
 N. W. 1075. 
 
291 DAMAGES FOR INJURIES. g 151 
 
 $5,000; diabetes; Newman v. Railway Co., 38 Fed. Ren 
 819 ^ ^ f 
 
 88,000; disease incurable; physician; Quinn v. O'Keef e 
 41 N. Y. Supp. 116. 
 
 $1,350; erysipelas; Dickson v. HoUister, 123 Pa. St. 
 421. 
 
 85,000; epileptic fits; Griffith v. Railway Co., 44 Fed. 
 Rep. 574. 
 
 84,000; fibula; South Cov. & Cin. St. Ry. Co. v. Ware, 
 84 Ky. 267. 
 
 $3,500; hernia; Calder v. Smalley, 64 Iowa, 219. 
 
 81,500; hernia; Houston & Tex., etc., R. Co. v. Shafer, 
 54 Tex. 644, 6 Am. & Eng. R. C. 420. 
 
 81,658; illness serious; Drake v. Kiely, 93 Pa. St. 492. 
 
 $16,044; heart displacement and enlargement of; 
 Georgia P. R. Co. v. Dooley, 86 Ga. 294, 12 L. R. A. 342, 
 
 12 S. E. Rep. 923. 
 
 81,450; hip disease; Fitzpatrick v. Dobson, 78 Me. 
 569. 
 
 $5,000; lungs; incurable disease of; Schafer v. Gilmer, 
 
 13 Nev. 330. 
 
 $20,000; lung; ulcer on; condition critical; injury per- 
 manent; Illinois Central R. R. Co. v. Souders, 79 111. 
 App. 41. 
 
 $2,000; miscarriage; Joliet v. Conway, 17 111. App. 577, 
 affirmed. 
 
 82,000; miscarriage; North Chicago St. Ry. Co. v. 
 Shreve, 70 111. App. 666. 
 
 $5,000. miscarriage; Fitzgerald v. Railway Co., 12 
 Upper Canada, Q. B. 648. 
 
 $3,000; nervous ailments; Cleveland v. Steamboat Co., 
 125 N. Y. 299. 
 
 $10,000; paralytic for life; United States v. Juniata, 
 93 U. S. 337. 
 
 $15,000; paralysis of both legs; Redden v. Railway Co. 
 (Utah), 15Pac. Rep. 262. 
 
 810,000; paralysis one side; Osborne v. Detroit, 32 
 Fed. Rep. 36. 
 
 $7,500; paralysis of both legs; Chicago v. Herz, 87 111. 
 541. 
 
 $6,050; paralysis; Mellor v. Railroad Co., 105 Mo. 455. 
 10 L. R. A. 36, 14 S. W. Rep. 758. 
 
 $15,000; paralysis; incurable; Bishop v. Railway Co. 
 (Minn.), 50 N. W. Rep. 927. 
 
i 151 DAMAGES FOR INJURIES. 292 
 
 $8,500; paralysis of fingers; Ridenhour v. Cable Co. 
 13 S. W. Rep. 889. 
 
 $i8,750; paralysis and total disability; Lake Shore & 
 M. S. Ry. Co. V. Rosenweig, 113 Pa. St. 519, 6 Atl. Rep. 
 545. 
 
 $4,000; paralysis of shoulder blade; Degnan v. Railroad 
 Co., 35 N. Y. Sup p. 1047. 
 
 $6,000; partial paralysis; incapable to support family; 
 Atchison, T. & S. F. R. Co. v. Click, 32 S. W. Rep. 2:^6. 
 
 $1,741; paralysis of right arm; Hastings v. Stetson, 
 (Me.) 39 All. Rep. 580. 
 
 $2,500; pleurisy and synovitis; Terhune v. Koellish, 
 (N. J.) 43 Atl. Rep. 655. 
 
 $7,000; rupture; piano player; disabled to do any work; 
 Wedekind v. Railway Co., 20 Nev. 292. 
 
 $5,000; rupture of unbillicus; producing miscarriage; 
 Wynn v. Railway Co., 14 N. Y. Supp. 172. 
 
 $4,000; rupture; Dillingham v. Richards, Tex. Civ. 
 App. 27 S. W. Rep. 1061. 
 
 $3,000; rupture; Chicago & A. R. Co. v. Clausen, 70 
 111. App. 550. 
 
 $4,000; sciatic nerves; Lockwood v. Street Ry. Co. 
 7 N. Y. Supp. 663. 
 
 $1,000; treumatic fever; O'Toole v. Railway Co. 12 
 N. Y. Supp. 347. 
 
293 
 
 DAMAGES FOR INJURIES. 
 
 152 
 
 CHAPTER XVIIL 
 
 INJURIES SUSTAINED BY MARRIED WOMEN. 
 
 Sec. 
 
 152. Damages. Elements. Remedy 
 
 of Husband. 
 First. Loss of Time. 
 Second. Loss of Expenses. 
 Third. Loss of Services. 
 Fourth. Loss of Society and 
 
 Companionship. 
 Fifth. Distress of Mind. 
 
 153. Loss of Prospective Offspring. 
 
 154. Proof Evidence. Recovery. 
 
 155. Amount Recoverable for Serv- 
 
 ices. 
 
 Sec. 
 
 156. No Compensation for Solatium 
 
 for Wounded Feelings. 
 
 157. Damages Recoverable by the 
 
 Wife. 
 
 158. Joinder of Actions by Husband 
 
 and Wife. 
 
 159. Wife's Loss of Husband's Soci- 
 
 ety. 
 
 160. Contributory Negligence on 
 
 Part of the Wife a Defense. 
 
 161. Judgments Recovered. 
 
 § 152. Damages. Elements. Remedy of Husband. 
 
 When a married woman receives an injury to her person 
 by reason of negligence or misconduct, the damages 
 sustained thereby are several and recoverable in part by 
 her husband and in part by herself. 
 
 The husband has a right of action to recover damages, 
 to- wit: 
 
 First. For loss of his own time.' 
 
 Second. For expenses of a physician, nurse and medi- 
 cine to effect a cure.^ 
 
 The jury may, in their discretion, in such a case, allow 
 in their verdict interest on the money actually laid out 
 and expended by the plaintiff by way of damages.' 
 
 Evidence of any expenses incurred by the husband or 
 loss to him of his wife's services, is inadmissible in a 
 
 ' Baker v. Bolton, 
 Woody V. Osgood, 
 
 ] Camp. 493; 
 50 Barb. 628; 
 Readdy v. Borrough, 137 Pa. St. 98, 
 18 Atl. 39; Pullman Palace Car Co. v. 
 Smith, 79 Tex. 468, 23 Am. St. Rep. 
 856 ; Blair v. Railway Co., 89 Mo. 383, 
 1 S. W. Rep. 367 ; Cooley on Torts, 
 Sees. 224, 226 ; Fort Worth & D. C. 
 R. Co. v. Kennedy, Tex. Civ. App. 
 35 S. W. Rep. 335. 
 
 ' Authorities cited : ^ Supra ; Nixon 
 V. Ludlam, 50 111. App. 273 ; Washing- 
 
 ton & G. R. Co. V. Hickey, 12 D. C. 
 269 ; Thompkins v. West, 56 Conn. 
 478 ; Union Pac. Ry. Co. v. Jones, 21 
 Colo. 340; Tuttle v. Railway Co. 42 
 Iowa, 518; Northern Centr. Ry. Co. 
 V. Mills, 61 Md. 355 ; Klein v. Jewett, 
 
 11 C. E. Gr. (N.J.) 474 ; Henry v. Klop- 
 fer, 147 Pa. St. 178 ; Hawkins v. Rail- 
 way Co., 3 Wash. 592, 28 Am. St. Rep. 
 72, 16 L. R. A. 808. 
 
 ' Washington & G. R. Co. v. Hickey 
 
 12 App. D. C. 269. 
 
g 152 DAMAGES FOR INJURIES. 294 
 
 suit by husband and wife for damages for injuries sus- 
 tained by tlie wife/ He should bring an action alone for 
 such damages in accordance with the common law rule. 
 
 Third. For loss of services of the wife both present 
 and prospective.'' 
 
 Under a statute of Connecticut providing that "any 
 person injured in person or property by means of a de- 
 fective road or bridge may recover damages from the 
 party bound to keep it in repair," a husband cannot 
 maintain an action against the city for the loss of his 
 wife's services and society, resulting from injuries to her 
 caused by a defective sidewalk.^ 
 
 The husband may sue alone to recover the damages for 
 loss of services.* 
 
 It is no defense to an action for the loss of a wife's 
 services through personal injuries, that plaintiff has not 
 lived with her since the accident, where the cause of the 
 separation was that plaintiff, being unable to support her 
 in her enfeebled condition, she went to her mother's 
 house.*' 
 
 A husband may sue a telephone company for damages 
 sustained by the wife by reason of its failure to deliver a 
 message intrusted to it for the benefit of both, and where 
 he also suffered damages he may recover in the same 
 action." 
 
 A husband's right to recover for loss of the wife's serv- 
 ices on account of injuries inflicted through defendant's 
 negligence is not affected by the fact that the wife recov- , 
 
 1 Louth V. Thompson, (Del. Super.) 770,41 Pac. 1070; McDevitt v. St. 
 39 Atl. Rep. 1100. Paul66Miiin.l2,68, N. W. Rep. 178; 
 
 2 Holleman v. Harwood, 119 N. C. Washington & G. R. Co. v. Hickey, 12 
 150, 34 Iv. R. A. 803; Hawkins v. Rail- App. D. C. 269; Thompson v. Street 
 way Co., 3 Wash. 592, 28 Am. St. Rep. Ry. Co., Mo. App. 36 S. W. Rep. 625; 
 72; Citizens St. Ry. Co. v. Twiname, Redfield v. Street Ry. Co., 112 Cal. 
 121 Ind. 375, 7 U R. A. 352; Ohio & 220 43 Pac. Rep. 1117; Richmond 
 M. Ry. Co. V. Cosby, 107 Ind. 32, 7 N. Ry. & Elect. Co. v. Bowles 92 Va. 
 E. Rep. 373 ; Ainley v. Railway Co., 738 24 S. E. Rep. 388. 
 
 47 Hun. 206; Henry v. Klopfer, 147 ^Lounsbury V.Bridgeport City, 66 
 
 Pa St. 98; Readdy v. Borough of Conn. 300, 34 Atl. Rep. 93. To same 
 
 Shamokm, 137 Pa. St. 98; Filer v. effect, see Roberts v. City of Detroit 
 
 Railway Co., 49 N. Y. 47-56 ; Klein v. (Mich.), 60 N. W. Rep. 450 ; Nixon v. 
 
 Jewett, Receiver, 26 N. J. Eq. 474; Ludlam, 60 111. App. 273. 
 
 McDonald v. Railway Co., 26 Iowa, 'Rice v. Railway Co. (Tex. Civ. 
 
 124; Brooks v.Schwerin,54N. Y. 343; App.), 27 S. W. Rep. 921. 
 
 Cregin V. Railway Co., 75 N. Y. 192 ; »Bowdle v. Street Ry. Co. 103 
 
 Skoglund V. Railway Co., 45 Minn, 272 Mich., 61 N. W. Rep. 521. 
 
 ,??: ? „^?3v®^ ^^P- '^^3= Seitz V. • Southwestern Telegraph and Tel- 
 
 Mitchell, 94 U. S. 580 ; Atchison, T. & ephone Co. v. Dale, ( Tex. Civ. App.) 
 
 S. F. R. Co. V. Dickey, 1 Kan. App. 27 S. W. Rep. 1059. 
 
295 DAMAGES FOR INJURIES. g 162 
 
 ered damages for the same injuries iu an action by her 
 against the same defendant.' 
 
 A druggist who, in violation of a husband's express 
 orders, sold laudanum and similar preparations to 
 the wife, so that she has acquired the opium habit and 
 the husband has lost her services and companionship, 
 is liable to the husband in damages. Holleman v. Har- 
 wood, 119 N. C. 150, 34 L. R. A. 803, 25 S. E. Hep. 972. 
 
 In Cregin v. Railroad Co., 75 N. Y. 192, the court 
 said: "The husband had a right to the services of his 
 wife. They were of pecuniary value to him, and any 
 wrong by which he was deprived of those services, or 
 put to any expense to remedy or palliate the conse- 
 quences of the injury to his wife, was a wrong done to his 
 rights and interests." 
 
 In Filer v. Railroad Co., 49 N. Y. 49, the court held 
 that a wife's services and earnings belong to her hus- 
 band, and for loss of such services he may have an ac- 
 tion. 
 
 In Mt. Adams & Eden Park Ry. Co. v. Wysong, 6 O Circ. 
 Dec. 28; 8 O. C. C. R. 211, the court said: "It appeared 
 that the husband of the plaintiff had sent for the doctor 
 to treat his wife. Primarily the husband was liable for 
 the amount of the bill under the law, and in addition it 
 would seem that he bound himself to pay it by his em- 
 ployment of the doctor. If, therefore, the injury was 
 wrongfully caused by the defendant company, he had a 
 right to recover the expense so incurred by him from the 
 company, and the wife had no right to recover therefor. 
 She might, under certain circumstances, have bound her- 
 self to it, and then have recovered as part of her dam- 
 ages in this ease; but there is nothing to show that she 
 did become liable for it, or pay it, and was therefore not 
 entitled to recover it. ' ' To the same effect, Toledo v. 
 Duffy, 7 O. Circ. Dec. 113; 13 O. C. C. R. 482. 
 
 In Hawkins v. Railway Co., 3 Washington 592, 28 Am. 
 St. Rep. 72, it is held that an action for an injury to a 
 wife, caused by the negligence of a third person, must be 
 brought in! the name of the husband the wife is a proper, 
 although not aneces&ary party plaintiff, and that where the 
 action is brought by the husband and wife jointly to recover 
 for an injury to her, the measure of damages is thecompen- 
 
 1 Southern Kansas Ry. Co. v. Pavey, 57 Kan. 521, 46 Pac. Rep. 969. 
 
§ 152 DAMAGES FOR INJURIES. 296 
 
 sation for the injury and its subsequent consqeuences, 
 her pain, suffering and wounded feelings, the cost of her 
 nursing, medical attendance and medicines, and the value 
 of her loss of services in her household. 
 
 In Citizens St. Ry. Co. v. Twiname, 121 In d., 375,7 L.R. 
 A. 352, the court said: " There might be circumstances 
 existing which would entitle the wife, in an action for 
 damages, to recover for the value of her own services, 
 but prima facie the husband is entitled to recover for 
 such services, and especially this is true when the wife 
 is not engaged in carrying on any trade or business on 
 her own account, or performing labor for persons other 
 than her husband, and, on the contrary, is voluntarily 
 rendering service for tlae benefit of her husband; and he 
 is entitled to recover as well for one class of services as 
 another. In other words, the husband is entitled to 
 recover for the damage sustained on account of the loss 
 of the services of the wife, and the value of her services, 
 and loss sustained by reason of her inability to perform 
 them, must necessarily depend on the character and value 
 of the services which she is capable to perform, and is ac- 
 customed to perform for the husband." 
 
 In Ohio & M. Ry. Co. v; Cosby, 107 Ind. 32, 7 N. E. 
 Rep. 373, the court said: " Presumptively the husband 
 was entitled to maintain a separate action to recover for 
 medical attendance, loss of service, and of the society of 
 his wife. He could not recover for these in an action in 
 which his wife was suing for injuries to her person, nor ^ 
 could such damages be recovered by them jointly. It 
 was equally impossible, as the complaint was framed, for 
 the wife to recover for medical attendance or loss of 
 time. Her right was limited to recover for the injuries 
 to her person, including pain, anguish of mind, and all 
 such other damages as were not presumptively inju- 
 ries to the husband." Long v. Morrison, 14 Ind. 595; Ful- 
 ler V. Railroad Co., 21 Conn. 557; Baltimore, etc. Ry. 
 Co. V. Kemp, 61 Md. 74; Cregin v. Railroad Co., 75 N. Y. 
 192; 2 Wood Railroads, 1245. 
 
 In Blackinska v. Howard Mission, 130 N. Y. 497, it is 
 held where a wife is allowed to sue alone for damages, 
 she cannot recover for the loss of her services. Such 
 damages can be recovered only in a separate action by the 
 husband in his own name. 
 
297 DAMAGES FOR INJURIES. ? 152 
 
 In Berger v. Jacobs, 21 Mich. 215, an action was 
 brought by the wife alone for damages sustained from an 
 assault and battery upon her person. The defense was 
 that she could not sue alone, but the court held that under 
 the statute she could bring and maintain such action; and 
 the damages recovered were her own individual estate. 
 The court, however, said: " But on the other hand for 
 any damages accruing to the husband from the assault 
 and battery upon the wife, as for the loss of her assist- 
 ance and society and the expenses to which he may have 
 been put in nursing and curing her, he alone could sue." 
 
 In Penn. etc. Rd. Co. v. Goodman, 62 Pa. St. 320 Justice 
 Agnew says: ''The serviceofawifeispecuniarilymore val- 
 uable than thatof amere hireling. The frugality, industry, 
 usefulness, attention, and the tender solicitude of a wife 
 and the mother of children surely make her services 
 greater than those of an ordinary servant." 
 
 In an action by a husband on account of his wife's per- 
 sonal injuries, an instruction that he is entitled to re- 
 cover the money he had expended or became liable to 
 pay for the medical care and attendance upon his wife 
 during her illness, and for the loss of her services while 
 unable to attend to her domestic duties, states the 
 measure of damages with substantial accuracy. Henry 
 V. Klopfer, 147 Pa. St. 98; 23 Atl. Rep. 337. 
 
 In Skoglund v. Street Ry. Co. , 45 Minn. 330; 22 Am. St. 
 Rep. 733, it is held that where the husband and wife are 
 both at the same time injured by the same act of negli- 
 gence, a recovery by the husband for injury to himself 
 is not a bar to a subsequent action by him to recover for 
 the loss of the society and services of his wife and 
 expenses incurred in curing her of the injury received. 
 
 Fourth. For the loss of the society and compan- 
 ionship of the wife by reason of the injuries sus- 
 tained.' What is meant by the words " society " and 
 " companionship," is all that is embraced in the ordinary 
 
 1 Baker v. Bolton, 1 Camp. 493; Railroad Co., 168 Mass. 308,38 L. R. 
 
 Furnish v. Railroad Co., 102 Mo. 669, A. 631 ; Sellecky.JanesviUe 100 Wis., 
 
 22 Am. St. Rep., 800 ; Delaware, etc. 157, 75 N. W, Rep. 895, 47 L. R. A. 691 r 
 
 R R. Co. V. Jones, 128 Pa. St., 308, 18 Little Rock & Fort Scott Rd. Co. v. 
 
 Atl. Rep. 330; Pennsylvania Rd. Co. Harley (Ark.), 15S. W. Rep. 456;Good- 
 
 V. Goodman, 62 Pa. St. 329 ; Cregin v. no v. Oshkosh, 28 Wis 300 ; Filer v. 
 
 Railway Co., 75 N, Y. 192; Munro v. Railroad Co., 49 N. Y. 47; Klein v. 
 
 Railroad Co., 84 Cal. 575, 18 Am. St. Jewett, Receiver, 26 N. J^ Eq. 474 j 
 
 Rep. 248; Bigaouette v. Paulet, 134 Weierv. Railway Co., 12 Mo. App. d5. 
 Mass. 128, 45 Am. Rep. 307 ; Kelley v. 
 
§ 152 DAMAGES FOR INJURIES. 298 
 
 understanding or definition of those words. They are 
 difficult to define or express in comprehensive, clear and 
 concise language. They mean a great number of things 
 that go into and make up what is known as the daily life 
 of two persons. They presume to be the society and com- 
 panionship of two persons as enjoyed by them in ordina- 
 rily good health. They embrace acts of kindness, love, as- 
 sistance and encouragement and words of consolation, 
 cheer and comfort. But these are not all. They also 
 include the care, nurture and parental love which a 
 mother may give to her children in their growth to man- 
 hood and womanhood and in their education, such only as 
 a mother can give. These things go to make up a happy 
 home and make life worth living, and in them there is a 
 source of pride, comfort and satisfaction. Whatever 
 tends to injure and destroy these relations and condi- 
 tions, is an element of damage for which compensation 
 should be given. 
 
 In Cregin v. Railway Co., 75 N. Y. 192, the court 
 charged the jury that the husband might recover loss of 
 services up to the time of her death, and this would include 
 "the services and comfort of his wife's society," which 
 was approved by the court of appeals. 
 
 In Kujek v. Goldman, 150 N. Y. 176, 34 L. R. A. 156, it 
 was held that loss of comfort founded upon affection and 
 respect, derived from conjugal society, is sufficient, irre- 
 spective of any pecuniary damages, to sustain an action 
 by a husband against one who has fraudulently induced 
 the plaintiff to marry a woman who is pregnant by the 
 defendant. 
 
 For the same reasons it has been held by some courts 
 that the husband may also include the loss of society of 
 his wife when the injury has caused her to become an 
 invalid, or 'developed hysteria or nervousness, if before 
 the accident she was perfectly well. 
 
 In Furnish v. Railway Co., 102 Mo. 669, the court said: 
 It is first asserted that there was no loss to plaintiff of 
 the society or companionship of his wife, because, though 
 injured, she was yet with him, and he therefore has the 
 benefit of her society. But the answer to that contention 
 is, that, as her husband, he was entitled to her society as 
 she was when the negligence of defendant impaired her 
 strength, her health, and her usefulness as a helpmate. 
 
299 DAMAGES FOR INJURIES. 
 
 152 
 
 He is entitled to be compensated for such loss of her 
 society as resulted from the negligence alleged. 
 
 By the term "society," in this connection, is meant 
 such capacities for usefulness, aid and comfort as a wife 
 which she possessed at the time of the injury. Any 
 diminution of those capacities, by the acts or negligent 
 omissions of defendant, constituted a just basis of an 
 award of compensatory damages therefor. 
 
 In Kelley v. Kailwa}- Co., 168 Mass. 308, 38 L. K. A. 
 631, an action was brought by the plaintiff to recover 
 damages for loss of the society of plaintiff's wife and 
 expenses incurred for medical attendence upon her by 
 reason of an injury caused by defendant's negligence and 
 which resulted in the verdict in the favor of the plaintiff. 
 The court, in delivering its opinion, said: 
 
 "fn Bigaouette v. Paulet, 134 Mass. 12'6, 45 Am. Rep. 
 307, a husband's action for loss of consortium with his 
 wife was held to be maintainable, although there was no 
 loss of service or payment of expenses m consequence 
 thereof. And in Bennett v. Bennett, 116 N. Y. 584, 6 L. R. 
 A. 553, it is said that the basis of the husband's action 
 for loss of consortium is his right to the conjugal society 
 of his wife, and that it is not necessary that there should 
 be proof of any pecuniary loss, or loss of service. The 
 present case was tried with an action brought by the 
 plaintiff's wife, and the same jury fixed the damages in 
 both cases. The defendant took exceptions in this case, 
 but none in the action brought by her. The jury were 
 instructed that the division of the rights to recover which 
 by law is made between the husband and the wife does 
 not, in any sense, increase the aggregate right of re- 
 covery, and that the damages which are to be divided 
 between the husband and the wife should not, in the 
 aggregate, exceed the damages which the wife, if unmar- 
 ried, would be entitled to recover ; with the qualification, 
 however, that one additional element should be con- 
 sidered, namely, the loss of consortium by the husband. 
 The defendant contends that now an action will not lie 
 for loss of consortium, or, at least, that it will not in case 
 of an injury to her through negligence, and that the in- 
 curring of expenses will not alone give a ground of action. 
 It might be sufficient, to dispose of this case, to say that 
 the plaintiff was bound to support his wife, and that the 
 expenses incurred by him appear to have exceeded the 
 
§ 152 DAMAGES FOR INJURIES. 30Q 
 
 amount of the verdict, and that, therefore, the defend- 
 ant's exceptions should be overruled ; but, in view of the 
 rulingat thetrial allowing the jury to take into account the 
 plaintiff's loss of consortium, and of the defendant's 
 request that the correctness of this ruling should be 
 determined, we proceed to consider it. By the common 
 law it is quite clfear that a husband might maintain an 
 an action in his own name alone for an injury to his wife 
 which resulted in his loss of consortium with her ; as for 
 example, for an injury caused by an assault and battery 
 upon her by medical or surgical malpractice, or by other 
 negligence. Hyde v. Scyssor, Cro. Jac. 538; Guy v. 
 Lusy, 2 Rolle, 51; Russell v. Corne, 2 Ld. Raym, 1031; 
 Dix V. Brookes, 1 Strange, 61; Smith v. Hixon, 2 Strange, 
 977; 2 Rolle Abr. 556; Hale, Analysis of the Law, 40; 3 
 Bl. Com. 140; 1 Chitty PL 83; (Higgons v. Butcher) 
 Yelv. (Met. ed.), 89; Baker v. Bolton, 1 Camp. 493; 
 Carey v. Berkshire R. Co., 1 Cush. 475, 478, 48 Am. Dec. 
 616; Barnes v. Hurd, 11 Mass. 59;Laughlin v. Eaton, 54 
 Me. 156; Hopkins v. Atlantic & St. L. R. Co. 36 N. H. 9, 
 14, 72 Am. Dec. 287; Louis v. Babcock, 18 Johns, 443; 
 Matteson v. N. Y. C. R. Co. 35 N. Y. 487, 91 Am. Dec. 
 67; Jones v. Utica & B. R. Co. 40 Hun, 349 (a case much 
 like the present) ; Berger v. Jacobs, 21 Mich. 215; Hyatt 
 V. Adams, 16 Mich. 180; Long v. Morrison, 14 Ind, 595, 
 77 Am. Dec. 72; Nixon v. Ludlam, 50 111. App. 273; Me- 
 whirter v. Hatten, 42 Iowa, 288, 20 Am. Rep. 618; Mowry 
 V. Chaney, 43 Iowa, 609; Smith v. St. Joseph, 55 Mo. 456, 
 17 Am. Rep. 660. 
 
 "The contention of the defendant, therefore, must rest 
 entirely on the ground that the husband has lost this 
 right of consortium by reason of the legislation of this 
 commonwealth increasing the rights of married women. 
 Harmon v. Old Colony R. Co. 165 Mass. 100, 30 L. B. A. 
 658. But there has been no substantial change of the 
 statutes upon this subject, since the decision in 
 Bigaouette v. Paulet. Notwithstanding the progress of 
 legislation in giving to married women the control 
 of their time and actions, this right of the husband is not 
 destroyed. The unity and identity of interest which by 
 the common law existed between husband and wife have 
 been impaired. Butler v. Ives, 139 Mass. 202. They 
 are not, however, entirely done away with. The hus- 
 band's right to compel his wife to work for him is 
 
301 DAMAGES FOR INJURIES. § 152 
 
 abridged, but he still has a right to her society and 
 assistance, which is different in character and degree 
 from that which other people have, or which she is at 
 liberty to give to them. By marriage, both husband and 
 wife take upon themselves certain duties and obligations 
 toward each other, in sickness and health, which it can- 
 not be supposed that the legislature has intended wholly 
 to uproot. A married woman may now perform any 
 labor or services on her sole and separate account, as 
 her husband may; nevertheless each owes certain duties 
 to the other which are not annulled by the statutes. 
 Mewhirter v. Hatten, 42 Iowa, 288; 20 Am. Rep. 618. 
 These duties are included in the word "consortium;" 
 but the extent of these duties, or of the right of consor- 
 tium, need not now be determined. The only question 
 presented to us is whether the presiding justice was 
 right in allowing the jury to consider at all the loss of 
 consortium. It is argued by the defendant that, if a 
 husband has a right to recover for the loss of consortium 
 through an injury caused by negligence, a wifealso would 
 have the same right, by virtue of the existing statutes, 
 in case of such an injury to her husband ; and that this has 
 never been held, or even contended for. She has no such 
 right at common law, but whether she has by statutes we 
 do not now consider. The question has been considered 
 elsewhere, but the decisions are not in harmony." 
 
 In Selleck v. Janesville 100 Wis., 157, 47 L. K. A. 691, the 
 court said: "Appellant complains because the court 
 instructed the jury that : 'In finding the value of her 
 .services, you may consider the loss, if any, sustained by 
 her husband in the deprivation of regular attendance, 
 services and comfort of his wife's society. The comfort 
 of her society can hardly be separated from her services, 
 and the word 'service' implies whatever of aid, assist- 
 ance, comfort and society the wife would be expected to 
 render or bestow upon her husband under the circum- 
 stances, as shown by the evidence in the case, in the con- 
 dition in which the husband and wife were placed. ' The 
 criticism is that the jury were thereby authorized to 
 allow as damages something in excess of the proved 
 money value of the wife's services as a hired servant. 
 The action here brought was well known to the common 
 law, except that our statute (Rev. Stat. 1339) and its 
 predecessors were necessary to render a municipal cor- 
 
§ 152 DAMAGES FOR INJURIES. 302 
 
 poration liable thereto. Hunt v. Winfield, 36 Wis. 154, 
 17 Am. Rep. 482. It is brought in the husband s own 
 behalf, and for a wrong done to his own rights. It 
 closely resembles the action of the father for injury 
 to or disablement of his child, or the master of his serv- 
 ant. The measure of recovery differs just as the rights 
 invaded differ, just as the legal dutj'- owed by the wife 
 differs from that owed by the child or servant. Each of 
 the latter owes the duty of service or labor. The wife owes 
 a broader and a higher duty, of which physical labor may 
 or may not be a part, according to circumstances. Her 
 duty is called in the common law writs consortium, which 
 means conjugal society and assistance. Anderson Law 
 Diet.; Bouvier Law Diet. So we find that the common 
 law recognized the right of the husband to maintain 
 action against one who tortiously impaired the ability of 
 a servant, child or wife to perform her duty, and thus 
 deprived the owner of his right thereto. Such action, if 
 based on personal injury, was in trespass on the case, 
 per quod servitium amisit if for a child or servant, and 
 per quod consortium amisit if for the wife. Bl. Com. , pp. 
 139, 142 ; Winsmore v. Greenbank, Willes, 577. l<'rom 
 before the days of Blacks tone down to the present time, 
 the authorities, English and American, are, without well- 
 considered exceptions, in accordance with the reason 
 above stated;— to the effect that the husband's recovery 
 is for the loss or impairment of his right to conjugal 
 society and assistance, and ordinarily where the word 
 "services" is used, it signifies wifely services such as 
 are due from her, and includes the idea of her society. 
 Guy V. Livesey, Cro. Jac. 501; Hyde v. Scyssor, Cro. 
 Jac. 538; Cooley on Torts, p. 266; 2 Hilliard Torts, p. 498; 
 SchoulerDom. Rel., sec. 143; Reeve Dom. Rel„ p. .^8 ; 3 
 Sutherland Damages, sec. 1252; Meese v. Fond du Lac,4& 
 Wis. 323; 14 N. W. 406; Shanahan v. Madison, 57 Wis. 
 276; 15 N. W. 154; DufiBes v. Duffles, 76 Wis. 374, 8 L. R. 
 A 420, 45 N. W. 522; Hopkins v. Atlantic & St. L. R Co., 
 36 N. H. 9, 72 Am. Dec. 287: Kelley v. New York, N. H. 
 & H. H. Co., 168 Mass. 308, .38 L. R. A. 631, 46 N. E. Rep. 
 1063; Laughlm V. Eaton, 54 Me. ,1.56: Drew v. Peer, 93 
 Pa. 234; Jones v. Utica & B. R. Co., 40 Hun 349; McKin- 
 ney V. Western Stage Co., 4 Iowa, 420; Mowry v. Chaney, 
 43 Iowa, 609; Berger v. Jacobs, 21 Mich. 215, 221; Fur- 
 nish V. Missouri P. R. Co., 102 Mo. 669, 15 S. W. Rep. 315. 
 
303 DAMAGES FOR INJURIES. 
 
 ? 152 
 
 The wifely services or consoo-tium may, and often do, 
 include services such as might be rendered by hired serv- 
 ants; and when that is the ease it is usually permitted 
 to prove the customary or market value of such services 
 by testimony of experts familiar with sucti market value, 
 but it is not necessary that any such physical services 
 should customarily be rendered in order to justify some 
 recovery. Bigaouette v. Paulet, 134 Mass. 124, 45 Am. 
 Rep. 307; Kelley v. New York, N. H. & H. R. Co , 168 
 Mass. 308, 38 L. R. A. 631, 46 N. E. Rep. 1063; Berger v. 
 Jacobs, 21 Mich. 215,221; Furnish v. Missouri P. R. Co., 
 102 Mo. 669, 15 S. W. Rep. 315; Cooley on Torts, p. 266; 3 
 Sutherland Damages, sec. 1252. In the light of these 
 principles, it was not error to instruct the jury that, in 
 placing a value upon the wife's services, they were to 
 understand that word as including, not alone such 
 services as a hired domestic servant might perform, but 
 also such as the wife, can, and this wife was accustomed 
 to render, if they found those to be disabled by her 
 injuries, which was substantially the effect of the charge. 
 From the foregoing it is apparent that the husband's 
 damages are the value of his wife's services to him, as 
 the court also charged under exception. They cannot be 
 entirely the subject of market value, though part of them 
 may be. Their value is not to be tested by what they 
 could be hired for, or what another would pay for them, 
 for they are not a hireable commodity. This does not at 
 all deny what was said in Keller v. Gillman, 93 Wis. 9, 12, 
 66 N. W. Rep. 800; for there the subject of inquiry was the 
 market value of certain services, of a kind which, might 
 be the subject of hiring as to which opinion evidence only 
 of value generally, and not to any particular person, has 
 always been held permissible. It should be noted, how- 
 ever, that such of the services or consortium owed to the 
 husband as are not mere physical services are less likely 
 to be impaired by an injury merely physical. Because a 
 wife is incapacitated to perform such services as a 
 cook or a housemaid, it by no means follows that she may 
 not extend to her husband the aid of her society and 
 counsel or her pervading superintendence and care over 
 his household, or nurture and guidance of his children. 
 In the case before us much of conjugal assistance and 
 society was within the injured woman's power, and a cau- 
 tion to this effect might very properly have laeen given, 
 
^ 152 DAMAGES FOR INJURIES. 304 
 
 though its omission, in absence of any request therefor, is, 
 of course, not error. We cannot, however, concur in 
 appellant's view that the evidence disclosed no loss of 
 such elements of the consortium. Of a woman bedridden, 
 or compelled to move on crutches, suffering severe pain, 
 with shattered nerves, it cannot be said to conclusively 
 appear that her ability is not impaired to render services 
 and assistance, even other than physical, which would 
 otherwise have been within her power. Furnish v. Mis- 
 souri P. R. Co., 102 Mo. 669, 15 S. W. Rep. 315." 
 
 But the contra doctrine is held in Washington, that no 
 damages are recoverable by the husband for loss of 
 society, companionship and solace of the wife, for the 
 reason, as assigned, that he is not deprived of either of 
 them, except in case of death ; and that they are senti- 
 mental and intangible injuries for which the law has no 
 measure.^ 
 
 Fifth. Where death of the wife follows as a result of 
 the injury, the husband may recover for distress of mind 
 and suffering from the time of injury to that of death.' 
 But this doctrine may well be doubted, as damages for 
 distress or anguish of mind are confined to the person 
 who receives the injury.' 
 
 It must clearly be borne in mind that the doctrine 
 enunciated by Lord EUenborough confines the recovery 
 for this element of damages within the period from the 
 date of the injury to that of death.* 
 
 1 Hawkins v Railway Co., 3 Wash- the husband is not deprived of either, 
 
 ington 592, 28 Am. St. Rep. 72, where although the enjoyment of them may 
 
 the court said : "At the common law be lessened by the knowledge of his 
 
 when a wife was injured through the wife's suffering. They are of those 
 
 tort of a third person, the injury and sentimental, intangible injuries which 
 
 the right of action were hers, but the law cannot measure." 
 
 she could not sue unless her husband, ^ Baker v. Bolton, 1 Camp. 493, 
 
 if living, joined her as plaintiff. The where Lord EUenborough told the 
 
 recovery in that case was the pecu- jury that " they could only take into 
 
 niary measure of her own injury and consideration the bruises which the 
 
 suffering in body and mind. But plaintiff himself had sustained, and 
 
 there was another element of damage the Iocs of his wife's society, and the 
 
 which could be recovered only by her distress of mind he had suffered on 
 
 husband, suing alone in a separate her account, from the time of the ac- 
 
 action, viz: his loss of her services cident to the moment of her dissolu- 
 
 and his outlay in restoring her to tion." 
 
 health. In this case the complaint 'Hyatt v. Adams, 16 Mich. 180; 
 
 seems to haye been based upon the Mich. Centr. R. R. Co. v. Coleman, 28 
 
 idea that he could also recover for the Mich. 440. 
 
 societv, companionship and solace of ♦ Nickerman v. Harriman, 38 Me. 
 
 htswife; but we do not understand 277; Natchez, etc., Railway R, Co. v. 
 
 these to be recoverable injuries. As a Cook, 63 Miss. 38. 
 matter of fact, unless death ensues. 
 
305 DAMAGES FOR INJURIES. § I5S 
 
 Mental mffering recoverable by hvsband. In Pacific 
 Express Co. v. Black, Tex. Civ. App., 27 S. W. Rep. 830, 
 it was held that the husband may recover for both phy- 
 sical and mental suffering of his wife caused by the negli- 
 gent failure of an express company to promptly deliver 
 medicines shipped for the use of the wife. 
 
 § 153. Loss of Prospective Oflfepring. Where the 
 injury was of such a nature that it caused the wife to 
 suffer a miscarriage, the husband in an action for loss of 
 services of his wife cannot recover compensation for 
 being deprived of a prospective offspring.^ 
 
 In respect to this doctrine and the reasons in 
 support thereof the court said: "The action was for 
 the loss of the service of the wife. The term 'serv- 
 ice' in actions of this character includes any pecuniary 
 injury suffered by the husband from having been deprived 
 of the aid, comfort and society of his wife, or which may 
 reasonably be expected to result in the future, includ- 
 ing charges and expenses incurred, or which he may 
 be put to, in consequence of the wrong. Cooley on Torts 
 266 [226]. The wife has her own action for her physical 
 injury, and for- the pain and suffering to which she has 
 been or will be subjected. The husband's action is for 
 the consequences affecting his estate and for depriving 
 him of the aid, society and companionship of his wife, 
 which, except for the wrong, he might reasonably expect to 
 enjoy. It is doubtless true that the raising of children is 
 one of the objects of marriage. The husband may and usu- 
 ally does contemplate the birth of children as one of the im- 
 portant advantages of the marital relation. At the com- 
 mon law and independently of statutory enactments, the 
 deathof a person caused by the negligenceof another gave no 
 right of action for damages to any person however closely 
 connected with the deceased. But recent statutes, changing 
 the rule of the common law, recognize the ties of kindred 
 and mutual dependence of parents and children, husband 
 and wife, and of persons standing in other degrees of 
 relationship, the reasonable expectations that pecuniary 
 aid or assistance, even outside of legal obligations, will 
 be extended by relatives to each other in case of neces- 
 sity, and upon this basis have given a statutory action for 
 
 ■Butler V. Railway Co., 143 N. Y., 417, 42 Am. St, Rep. 738. 
 20 
 
I 153 DAMAGES FOR INJURIES. 306 
 
 the benefit of the widow and next of kin of a deceased 
 person, whose death was caused by the wrongful act, 
 neglect or default of another against the wrongdoer, to 
 recover the' pecuniary damages, not exceeding a specified 
 amount, resulting from such death, to the persons for 
 whose benefit the action is given. * * * Under these 
 statutes actions are allowed to be maintainedi for the death 
 of infant children for the benefit of parents and recover- 
 ies have been sustained, the basis of damages being the 
 supposed pecuniary value to the parents of the life of 
 the infant. "Etherington v. Railroad Co., 88 N. Y. 641; 
 Birkett v. Ice Co., 110 N. Y. 504; Houghkirk v. Rail- 
 road Co., 92N. Y. 219; 44 Am. Rep. 370. 
 
 "The diflBculty of finding any safe basis upon which 
 to estimate the pecuniary damages in such cases have 
 been frequently adverted to by the courts. Whether 
 the infant would have lived to an age capable of rendering 
 service, and whether the continued life would have been 
 a pecuniary benefit or burden and the numerous con- 
 tingencies which may affect the value of the life, make the 
 ascertainment of such value by a jury, in a great degree, 
 a matter of speculation and conjecture. But where the 
 injury relates to the value of the life of a child cut ofl' in 
 infancy, there are some material facts capable of proof 
 which may be placed before the jury, and which afford 
 some aid in estimating the pecuniary loss suffered by 
 parents or other relatives. The age and sex of the infant 
 may be proved, its mental and physical condition, its 
 bodily strength, and generally whether there was the 
 apparent promise of a continued or useful life, or the 
 contrary. 
 
 "The speculation which, in the present case, the jury 
 were permitted to make, had not even these safeguards, 
 slight as they are. They were allowed to estimate the 
 pecuniary interest which the husband had in the chance 
 that an embryo, not yet quickened into life, would become 
 a living child. The sex could not be known, and if born 
 alive, the infant might have been destitute of some fac- 
 ulty, or so physically infirm as to make it a helpless 
 charge. There are no elements whatever upon which a 
 jury could base any conclusion that a pecuniary injury 
 had been suffered by the plaintiff from the loss of' the 
 unborn child, and this inquiry should have been excluded 
 from the consideration of the jury, as too remote and 
 
307 DAMAGES FOR INJURIES. § 154 
 
 speculative to form an element in the recovery. Where 
 a wrong had been done from which pecuniary loss has 
 resulted, or where injury is the natural or probable result 
 of a wrong, the injured party is not remediless, although 
 the extent of the injury is not capable of precise proof. 
 The jury in such a case may fix the damages within rea- 
 sonable limits, as best they may. Actions for defamation 
 or involving recoveiy for pain or suffering are examples. 
 But where 'damages claimed are neither the probable 
 result of the wrong nor capable of proof, they cannot be 
 awarded by the jury. It is not in the interest of justice 
 to extend the field of speculation in jury trials bej'-ond its 
 present limits, and to sustain the ruling in this case 
 would go beyond what has hitherto been sanctioned by 
 the courts." 
 
 § 154. Proof. Evidence. Recovery. In relation to 
 any expenses incurred or paid for attendance of a phy- 
 sician and nurse, or for medicines to effect a cure, there 
 must be some evidence of a positive character, showing 
 the amount of such expenses before any recovery can be 
 had therefor. The same principles regarding the proof 
 and value of such medical attendance apply the same as 
 for the element of damages for expenses.* 
 
 If no evidence is offered showing the amount of 
 expenses paid or the liability therefor incurred, no dam- 
 ages can be awarded for this element. But for the loss 
 of services of the wife or for the loss of society and com- 
 panionship, no positive evidence is required to be shown 
 beyond the fact that slie was a woman in good health 
 before the injury and what her services were worth gen- 
 erally; and that from the injury and its consequences, by 
 a diminution of these capacities, the husband has been 
 deprived of the loss of her society and companionship in 
 a greater or less degree.^ 
 
 In Furnish v. Railway Co. , 102 Mo. 669, it was urged 
 that as no evidence was offered of the value of the wife's 
 society, the instruction, that the jury should allow such 
 sum as the evidence showed would compensate him for 
 the "loss of society and companionship of his wife," 
 should not have been given. The court, in reply, said; 
 
 ^ Supra, Ch. 3. L.&W. R. R. Co. v. Jones, 128 Pa. St. 
 
 2 Furnish V. Railway Co., 102 Mo. 308. 
 669, 22 Am. St. Rep. 800 ; Delaware 
 
i 155 DAMAGES FOR INJURIES. 308 
 
 "To this it may be said that the nature of the subject 
 does not admit of direct proof of value, and that when 
 the fact of loss of society is established by testimony, 
 the assessment of reasonable compensation therefor 
 must necessarily be committed to the sound discretion 
 and judgment of the triers of fact." 
 
 what is Competent Evidence ? Ili Delaware, L. & 
 W. K. Co. V. Jones, 128 Pa. St. 308, 18 Atl. Rep. 330, it 
 was held that the husband was not obliged td show that 
 he suffered pecuniary loss, when it appeared that his 
 wjfe had previous to the injury been a healthy woman. 
 
 In Matteson v. Railway Co., 35 N. Y. 487, it was held 
 that the value of the services could be shown by wit- 
 nesses who state that they knew what services were 
 rendered and the value thereof. 
 
 In Keller v. Townof Gilman 93 Wis., 966 N. W. Rep. 800, 
 the court held that in proof of damages to a wife it is 
 error to receive testimony of the husband as to how much 
 her services were worth to him, the true rule being what 
 they were worth generally. 
 
 In an action for personal injuries brought by the hus- 
 band as his wife's next friend, after the court, comment- 
 ing on a question as to the wife's earning capacity, had 
 stated that her wages belonged to her husband, and could 
 be recovered in the suit, it was error to charge the jurj'- 
 that, in estimating damages, they should consider what 
 she was able to earn before the accident. Tunnicliffe v. 
 Railway Co. 102 Mich., 624 ; 61 N. W. Rep. 11. 
 
 When both the husband and the wife have sustained 
 personal injuries in the same accident, the husband may, 
 in the same action, recover a judgment for the injury 
 done to himself and for that which he has sustained from 
 the injury to his wife." 
 
 A recovery by the husband for injury to himself is no 
 bar to a judgment in a subsequent action for the loss of 
 society and services of his wife and expenses in effecting 
 a cure.' 
 
 § 155. Amount Recoverable for Services. The 
 
 amount of compensation which a husband is entitled to 
 recover depends upon the fkcts and circumstances of 
 each ease ; the amount of the value of the services of 
 
 1 Hopkins v. Railway Co., 36 N. H. 168 Mass. 308. 
 
 ?.; ?^".'-^-„^°- ^''- *^°- V.Chester, 2 Skoglutid v. Street Ry. Co., 45 
 
 57 Ind. 297 ; Kelley v. Railway Co., Minn. 330. 
 
309 DAMAGES FOR INJURIES. ^ 156 
 
 the wife, including the permanence and duration of the 
 diminished capacity to assist her hushand either in the 
 household duties or in his business, if her assistance had 
 been given to his business, should be shown/ 
 
 In estimating the prospective pecuniarv damages, the 
 jury may consider the age of the wife at the time of the 
 injury, her health and habits, capacity for labor and the 
 probable duration of her life. These facts should be 
 shown so as to enable them to estimate the value of her 
 loss/ 
 
 Thus, in the Citizens Street Railway Co. v. Twiname, 
 121 Ind. 375, the husband being engaged in the millinery 
 business and depending to a large extent upon his wife's 
 skill and knowledge of the trade to enable him to carry 
 it on successfully, his wife's injury by the defendant had 
 caused him to be deprived of her services. These serv- 
 ices must be such as can be estimated on a money basis.' 
 
 The husband is not entitled to recover anything for 
 damages for bodily pain and mental suffering, which his 
 wife endured. These are confined exclusively to herself 
 and included in any action she may bring therefor.* 
 
 § 156. Jf o Compensation for Solatium, for Wound- 
 ed Feelings. In estimating the amount of compensa- 
 tion, nothing is to be added as a solace for the injury 
 done to the feelings of the survivors, after the death of 
 the injured person. The rule is accepted on the grounds 
 of public policy. No reward can be put upon or allowed 
 for this element. No premium can be awarded for the 
 death. Besides, it would involve many questions resting 
 upon an imaginary, rather than a real, wrong ; and it would 
 be impossible to fix any definite rule of measure or 
 value. ^ 
 
 1 Citizens St. Ry. Co. v. Twiname wood, 80 111. 88 ; Huntington & B. T. 
 
 121 Ind. 375 ; Norris v. Railway Co.. R. Co. v. Decker, 84 Pa. St. 419 ; Tel- 
 
 21 Fed. 22; Kessler v. Smith, 66 N. fer v. RailroadCo.,30N.J. L. 88; Myn- 
 
 Car. 154; Chic. & R. I. Rd. Co. v. ning v. Street Ry. Co., 59 Mich. 257 ; 
 
 Morris, 26 111. 400 ; Carey v. Railway Hutchins v. Railroad Co., 44 Minn. 5; 
 
 Co., 48 Am. Dec. 639. Penn. etc. R. Co. v. Vandever, 36 Pa. 
 
 2AU. & Rd. Co. V. Ayers, 53 Ga., St. 298; Lehigh Valley Iron Co. v. 
 
 12 ; B. & O. Rd. Co. v. State, 41 Md. Rupp, 100 Pa. St. 95 ; Illinois Cent. R. 
 
 268. Co. V. Barron, 5 Wall, 95 ; McGown v. 
 
 'bemarest v. Little, 47 N. J. L. 28. Railroad Co., 20 S.W.Rep.80; Munro 
 
 *See Sec, Ibl post. v. Railroad Co., 84 Cal. 575, 18 Am. 
 
 » Blake v. Railroad Co., 18 Queen's St. Rep. 248. 
 B. 93 ; Chic, B. & Q. Rd. Co. v. Har- 
 
5 167 DAMAGES FOR INJURIES. 310" 
 
 The contra doctrine was once announced in California^ 
 and followed. But it is not now recognized,' 
 
 But in Scotland the jury may allow damages for sola- 
 tium.^ The Scotch rule is followed in Virginia.* 
 
 Companionship, Instruction. In Ohio it has been 
 held that companionship to the husband and children, in- 
 struction by way of culture, moral training and other 
 elements of like character are not within the rule of pe- 
 cuniary compensation/ 
 
 But in Virginia they are allowed as elements of dam- 
 ages." 
 
 § 157. Damages Recoverable by the Wife. In ac- 
 tions by a married woman to recover damages for per- 
 sonal injuries to herself, she may recover: 
 
 First'. Damages for bodily pain and mental suffering 
 endured by her on account of such injuries.' 
 
 Second. Damages for expenses paid or incurred to 
 effect a cure when paid out of her own estate or when her 
 separate estate is liable therefor.* 
 
 In an action by a married woman for personal -injuries, 
 it is proper to exclude the expenses of medical attend- 
 ance. Schulte V. HoUiday, 54 Mich. 73. 
 
 A married woman cannot, in an action for personal in- 
 juries, recover for the expenses of her cure when she 
 does not show that the expense was paid out of her 
 separate estate. Atlantic & D. R. Co. v. Ironmonger 
 (Va.), 29 S. E. Rep. 319. 
 
 A married woman whose husband is not a resident of 
 the state, and who has not lived with her husband for six 
 
 iBeesen v. Green M. G. M. Co., 57 Co., 10 N. Y. Supp. 225; Bergen v. 
 
 Cal. 20; Cleary v. Railroad Co., 76 Jacobs, 21 Mich. 215; Chicago, B. & 
 
 Cal. 240. Q. Rd. Co. v. Dickson, 67 111. 122 
 
 2 Morgan v. Railroad Co., 95 Cal. Chicago & N. W. Rd. Co. v. Button 
 
 610, 30 Pac. Rep. 603 ; 29 Am. St. Rep. 68 111. 409 ; Rogers v. Smith, 17 Ind 
 
 146, 17 L. R. A. 71. 323, 79 Am Dec. 483; Smith v. St, 
 
 'Patterson v. Wallace, 1 Macq. H. Joseph, 56 Mo. 456, 17 Am. Rep. 650 
 
 L. Cas. 748. Blair t. Railroad Co., 89 Mo. 334 
 
 ' B. & O. Rd. Co. V. Noell., 29 Thompson v. Metropolitan St. Ry. 
 
 Gratt. 394. Matthews & Warren 29 Co. (Mo. App.), 36 S. W. Rep. 625; 
 
 Gratt 570. Stutz v. Railway Co., 73 Wis. 147, 9 
 
 * Davis V. Guarnieri 45, O. S. 470 Am. St. Rep. 769. 
 
 '*• * Atchison, etc., R. R. Co. v. McGin- 
 
 ' B. & O. R. Co. V. Noell 29 Gratt nis, 26 Pac. Rep. 453 ; Thomas v 
 
 494 
 
 394. 
 
 Brooklyn, 58 Iowa, 438 ; Schulte v. 
 Holliday, 54 Mich. 73; Fife v. Osh- 
 kosh, 89 Wis. 540, 62 N. W. Rep. 541 
 N.Y. Supp. 291 ; Fitch v. Street Ry. Tuttle v. Railroad Co., 42 Iowa, 218. 
 
 'Bennett V. Bennett, 116 N. Y. 584, Holliday, 54 Mich. 73; Fife v. Osh- 
 6 L. R. A. 553; Hayden v. Clarke, 10 kosh, 89 Wis. 540, 62 N. W. Rep. 541; 
 
3 1 I DAMAGES FOR INJURIES. 
 
 2 157 
 
 or seven years, during which she has supported herself 
 may recover for physicians' services in an action for per- 
 sonal injuries to her, though she has not paid them 
 Lammiman V. Street Ry. Co. (Mich.), 71 N. W. Rep. 153* 
 Third. Damages for any permanent injury to her 
 person or for any diminished capacity to perform her 
 ordinary duties or business, if engaged in business. 
 Such damages are personal and belong to her.^ 
 
 Fourth. For loss of any time caused by the injury 
 when she was doing business on her own account.' 
 
 But to entitle her to recover for loss of time, or for 
 her loss of earnings, there must be proof that she was 
 doing business on her own account.' 
 
 In an action by a wife to recover damages for injuries 
 inflicted, her loss of time cannot be considered as an 
 element of damages, where it is not shown that she has 
 any employment apart from her husband.* Nor can she 
 recover for loss of time where she does not show that 
 she was a sole trader. Atlantic & D. R. Co. v. Iron- 
 monger (Pa.), 29 S. E. Rep. 319. 
 
 In Uransky v. Railroad Co., 118 N. Y. 304, 16 Am. St. 
 Rep. 659, it is held that damages for negligence dimin- 
 ishing the earning capacity of a married woman are pre- 
 sumed to belong to her husband, and when she seeks to 
 recover such damages, she must allege that for some rea- 
 son she is entitled to the fruits of her labor; or if she seeks 
 to recover damages for an injury to her business, she 
 must allege that she was in business on her own account 
 and by reason of the injury was damaged therein as 
 specifically set forth. 
 
 ' Chadron v. Glover, 43 Neb. 732, 105 Cal. 680, 35 Pac. Rep. 56 ; Stutz v. 
 
 62 N. W. Rep. 62 ; Chicago, B. & Q. R. Railway Co., 73 Wis. 147, 9 Am. St. 
 
 R. Co. V. Dickson, 67 111. 122; Mich. Rep. 769. 
 
 Centr. R. R. Co. V. Coleman, 28 Mich. ^Xuttle v. Railway Co., 42 Iowa, 
 
 446 ; Ohio & M. Ry. Co. v. Cosby, 107 218 ; Fife v. Oshkosh, 89 Wis. 540, 62 
 
 Ind. 32, 7 N. E. Rep. 373; Fitch v. N. W. Rep. 541; Thomas v. Brooklyn, 
 
 Railway Co., 10 N. Y. Supp. 325; 58 Iowa, 438. 
 
 Fitten v. Railway Co., 5 N. Y. Supp. « Schultte v. Holliday, 54 Mich. 73 
 
 64 ; Harmon v. Railway Co., 165 Mass. Thomas v. Brooklyn, 58 Iowa, 438. 
 
 100, 30 L. R. A. 658; Hamilton v. * Denton v. Ordway 108 Iowa, 487 
 
 street Ry. Co., 17 Montana, 334, 43 79 N. W. Rep. 271. 
 Pac. Rep. 713; Lamb v. Harbaugh, 
 
g 157 DAMAGES FOR INJURIES. 312 
 
 Fifth. Damages for the impairment of health, caused 
 by fright, when no other physical injuries were sus- 
 tained/ 
 
 To entitle a recovery for either of these elements, there 
 must be proof of the nature, extent and permanency of 
 the injury to enable the jury to assess and determine the 
 amount of the damages. So far as anything is claimed 
 for bodily pain, there is no fixed rule by which it can be 
 determined; but the amount to be awarded must be left 
 to the enlightened judgment of the jury. 
 
 In Buchanan v. Railroad Co., 52 N. J. Law 261, 19 Atl. 
 254, the plaintiff, who was a married woman, was lawfully 
 on the platform of the defendant; a piece of timber pro- 
 jected from one of the cars so as to sweep over such 
 platforta ; the plaintiff to avoid being struck by the pro- 
 jecting timber was compelled to throw herself on the, 
 platform. The shock to her nervous system seriously 
 and permanently impaired her health. 
 
 In Mtch V. Brooklyn Co., 10 N. Y. Supp. 225, plaintiff 
 was amarried woman sixty-three years of age and the in- 
 jury caused a continuing great and intense pain and a 
 shortening of one leg so that she would never have its 
 full use. She recovered $7,000 damages. 
 
 In ' Stutz V. Railway Co., 73 Wis. 147, 9 Am. St. Rep. 769', 
 the plaintiff was ordered to leave the train at some 
 distance from the station, and was obliged to walk on the 
 track and over a bridge. In so doing she fell through a 
 culvert and received injuries. The defendant was also 
 shunting cars towards her as she approached the station. 
 Being unfamiliar with the movement of trains, her ner- 
 vous system received permanent injury. 
 
 But the fright must be a part of the direct act of the 
 defendant which causes the injury, and in connection 
 with the fright of the plaintiff and the duty of the defend- 
 ant to demand and give safety and protection. 
 
 The authorities are numerous which hold that no re- 
 covery can be had for mere fright, occasioned by derail- 
 
 1 Stutz V. Railway Co., 73 Wis. 147, Tex. 468, 23 Am. St. Rep. 356 ; Atlan 
 
 9 Am. St. Rep. 769. Buchanan v. tic, etc. R. R. Co. v. Smith, 81 Ga. 620; 
 
 West Jer. Rd. Co., 52 N. J. L. 261, 19 Razzo v. Varni, 81 Cal. 289 ; Chatta- 
 
 Atl Rep. 254; 41 A. &E. Rd. Cas. 59, nooga R. & C. Rd. Co. v. Liddell, 85 
 
 Pullman Palace Car Co. v. Smith, 79 Ga. 482, 21 Am. St. Rep. 169. 
 
313 DAMAGES FOR INJURIES. g 158 
 
 ment of passenger trains or from accidents occurring 
 near or in the proximity of the station. ' 
 
 § 158. Joinder of Actions by Husband and Wife. 
 
 In some states by statute or under the code when a mar- 
 ried woman receives a personal injury, for which both 
 she and her husband have a right of action for damages 
 severally sustained, it is necessary that these damages 
 should be redressed in one action, or the party failing to 
 join or unite therein, is barred from maintaining a sep- 
 arate and subsequent action for the damages to which he 
 or she may be entitled. 
 
 Under civil code, Sec. 34, as amended in 1892, provid- 
 ing that in actions for personal sufferings, in which a 
 husband refuses to unite, the wife may sue alone, it is 
 no defense to an action by a woman for personal injuries 
 that she is married, where the defense does not raise the 
 question as to whether the husband refuses to unite 
 with her. When the husband deserts his wife and mar- 
 ries another woman, and for several years fails to sup- 
 port the former, his conduct amounts to a refusal to 
 unite in any action she may bring against third persons 
 within the foregoing section.^ 
 
 In Rockwell v. Waverly, the court held: Act May 8, 
 1895 (P. L. 54), provides that, where a right of action for 
 a personal injury to the wife accrues to both husband 
 and wife, the two rights of action shall be redressed in 
 one suit in the names of both; that either may waive his 
 or her right of action, and his or her failure to join in the 
 suit within twenty days after service of a rule to join, or be 
 barred, shall be conclusive evidence of such waiver, but 
 if both join in the suit separate verdicts shall be rendered, 
 one verdict determining the right of the wife and the 
 other determining the right of the husband, and separate 
 judgments shall be rendered thereon, with the right to 
 separate executions ; that the act shall apply to pending 
 suits, and it shall be the duty of the court to consolidate 
 such suits on application of either party. Held, that the 
 act does not forbid an action by the wife alone based on a 
 cause of action accruing after the passage of the act, and 
 a subsequent consolidation, on the request of both hus- 
 
 1 Buchanan v. Railroad Co., 52 N. sgaumeister v. Markham 101 Ky., 
 
 J. L. 261; Stutz v. Railroad Co., 73. 122,39 S. W. Rep. 844; S. & A. 
 Wis 147 Electric Traction Co.,187 Pa. St. 568, 
 
 41 Atl.Rep. 324, 
 
§ 159 DAMAGES FOR INJURIES. 314 
 
 band and wife, with the husband's action, for the purpose 
 of a trial. 
 
 § 159. Wife's Loss of Husband's, Support, Com- 
 fort and Society. At the common law the wife had no 
 right of action for the loss of the society and companion- 
 ship of her husband, even when occasioned by the negli- 
 gentor wilful act of a third party ; and she could not main- 
 tain any action therefor, on account of an injury to him- 
 self, for the reason that for such an injury he had the 
 sole right to sue, or on account of the alienation of his 
 affections and enticement away from her.^ 
 
 The loss of the husband who could be thus led away 
 from his duty, was probably regarded as damnum absque 
 injuria. The doctrine of the common law is still main- 
 tained in Maine and Wisconsin.^ 
 
 But statutes have been enacted by many of the states 
 which have abrogated the doctrine of the common law in 
 relation to the rights of the married woman, and in some 
 of those states the rule has been laid down that a married 
 woman may sue in her name for the loss of the support, 
 comfort and society of her husband, as where the hus- 
 band was wrongfully induced and procured to send his wife 
 away;'' or where insanity was caused by the negligent 
 acts of the defendant;* or where the husband's aflEections 
 were alienated;^ or where the husband was enticed away 
 from her." 
 
 In hoot V. Card, 58 Conn. 1, the court well said : "The 
 right of the husband to the affections and society of his 
 wife has ever been regarded as a valuable property 
 right, and he has always been permitted to sue for the 
 loss of it. Upon principle this right is as valuable to her 
 as is that of the husband to him." 
 
 In Leaver v. Adams (N. H.), 19 Atl. Rep. 776, it is 
 said: " As in natural justice no reason exists why the 
 right of the wife to maintain an action against the seduc- 
 tress of her husband should not be coextensive with the 
 right of action against her seducer, nothing but impera- 
 
 1 Cooley on Torts, Sec. 38 ; Schouler * Clark v. Hill, 69 Mo. App. 541. 
 Domestic Rel., Sec. 77. 5 Foot v. Card, 58 Conn. 1, 6 L. R. 
 
 2 Doe V. Roe, 82 Maine, 503, 8 L. R. A. 829 ; Haynes v. Nowlin, 129 Ind. 
 A. 833; Duffies v. Duffies, 76 Wis., 581, 14 Iv. R. A. 787; Warren v. War- 
 374, 8 \,. R. A. 420. ren, 89 Mich. 123, 14 h. R. A. 545. 
 
 « Westlake v. Westlake, 34 Ohio St. « Bennett v. Bennett, 116 N. Y. 584, 
 
 621 ; Clark v. Harlin, 1 Cin. Sup. Ct. 6 L. R. A. 553. 
 R. 418. 
 
315 DAMAGES FOR INJURIES. § 169 
 
 tive necessity would justify a decision tliat she could not 
 maintain such an action." 
 
 In Westlake v. Westlake, 37 Ohio St. 633, the court said: 
 " If at the common law, the husband could maintain an 
 action for the loss of the consortium of the wife, I see no 
 reason why, under our law, the wife cannot maintain an 
 action for the loss of consortium of the husband. And if 
 it be said that it was the loss of the services of the wife, 
 that constituted the gist of the husband's actions in such 
 cases, it is a sufficient answer to it to say that the reasons 
 upon which this rule of the common law rested, either 
 never existed or hare ceased to exist in this state." 
 
 Jn Warren v. Warren, 89 Mich. 123, the court very aptly 
 said: ''Although the wife may never go outside the 
 threshold of the home, the husband can not enjoy her 
 society unless he is also in the house, nor can she enjoy 
 his societj' while he is away from her. Nor is the fact 
 that she is purer and more domestic than her husband, 
 and less likely to abandon the home than he is, any rea- 
 son why she should be denied the same redress that he has 
 in such cases. Because the history of the race, and our 
 knowledge of human nature tell us that the wife is lesa 
 easily led astray and her affections alienated, than her 
 husband, is no reason why she should be denied the rem- 
 edy which for the same wrong is freely given to him. " 
 
 In Bennett v. Bennett, 116 N. Y. 584, 6 L. R. A. 553, 
 the court held that a married woman can maintain an ac- 
 tion for the enticement of her husband away from her, 
 and her consequent deprivation of his comfort, aid, pro- 
 tection and society. During the discussion of the ques- 
 tion the court said: 
 
 "The capacity of the plaintiff to sue cannot be ques- 
 tioned under this statute, but whether she has a cause of 
 action to sue upon is the important inquiry. Can she 
 maintain an action for any personal injury, even for an 
 assault and battery, since the repealing act already cited 
 went into effect? Admitting her power to assert her 
 rights in court, what right has she to assert? Has she 
 such a legal right to the conjugal society of her husband 
 as to enable her to recover against one who wrongfully 
 deprives her of that right? 
 
 " I.t is urged that the novelty of the action is a strong 
 argument that it cannot be upheld. The same point was 
 urged in almost the first action brought by a husband 
 
§159 DAMAGES FOR INJURIES. 316 
 
 against one who had enticed away his wife, and the an- 
 swer made by the court in that case we repeat was appli- 
 cable to this. The first general objection is that there 
 is no precedent for any such action as this, and that, 
 therefore, it will not lie. But this general rule is not appli- 
 cable to the present ease. It would be, if there had been 
 no special action on the case before. A special action on 
 the case was introduced for this reason, that the law will 
 never sufi'er an injury and a damage without a remedy, 
 but there must be new facts in every special action on 
 the case. Winsmore v. Greenbank, Willes, 577, 580. 
 
 " Moreover, the absence of strictly common law pre- 
 cedents is not surprising, because the wife could not 
 bring an action alone, owing to the disability caused by 
 coverture, and the husband would not be apt to sue, as 
 by that act he would confess that he had done wrong in 
 leavitig his wife. The actual injury to the wife from the 
 loss of consortium, which is the basis of the action, is the 
 same as the actual injury to the husband from that cause. 
 His right to the conjugal society of his wife is no greater 
 than her right to the conjugal society of her husband. 
 Marriage gives to each the same rights in that regard. 
 Each is entitled to the comfort, companionship, and affec- 
 tion of the other. The rights of the one and the obliga- 
 tions of the other which spring from the marriage con- 
 tract, are mutual in character, and attach to the husband 
 as husband , and to the wife as wife. Any interference with 
 these rights, whether of the husband' or of the wife, is 
 a violation, not only of a natural right, but also of a legal 
 right, arising out of the marriage relation. It is a wrong- 
 ful interference with that which the law both confers 
 and protects. A remedy, not provided by statute, but 
 springing from the flexibility of the common law, and its 
 adaptability of the changing nature of human affairs, has 
 long existed for the redress of the wrongs of the hus- 
 band. As the wrongs of the wife are the same, in princi- 
 ple, and are caused by acts of thfe same nature as those of 
 the husband, the remedy should be the same. What 
 reason is there for any distinction? Is there not the 
 same concurrence of loss and injury in the one case as 
 m the other? Why should he have a right of action for 
 the loss of her society, unless she also has a right of ac- 
 tion for the loss of his society ? Does not the principle 
 that the law will never suffer an injury and a damage 
 
317 DAMAGES FOR INJUKIES. 5 I60 
 
 without a remedy apply with equal force to either case? 
 Since her society has a value to him capable of admea- 
 surement in damages, why is his society of no legal 
 value to her? Does not she need the protection of the 
 law in this respect at least as much as he does? Will the 
 law give its aid to him and withhold it from her? 
 
 "it appears from the cases already cited that, accord- 
 ing to the weight of authority, the wife can maintain such 
 a,n action when there is a statute enabling her to sue. 
 The modern elementary writers take the same position. 
 ' To entice away or corrupt the mind and affection of one's 
 consort is a civil wrong, for which the offender is liable 
 to the injured husband or wife. The gist of the action is 
 not the loss of assistance, but the loss of consortium of 
 the wife or husband, under which term are usually 
 included the person's affection, society or aid.' Bigelow 
 Torts, 153. 
 
 ' We see no reason why such an action should not be 
 supported, where, by statute, the wife is allowed, for her 
 own benefit, to sue for personal wrongs suffered hj her. ' 
 Cooley Torts, 228.'' 
 
 § 160. Contributory Negligence on the Part of the 
 Wife, a Defense. 1 1 has been generally supposed that 
 the question of the wife's contributory negligence, in an 
 action by her husband for his loss on account of her per- 
 sonal injuries cannot be made and maintained, although 
 the contributory negligence of the husband as affecting 
 the right of the wife to recover damages, has been de- 
 cided otherwise. ' 
 
 But an innovation upon the above rule as to the right 
 of the defendant to raise a case of contributory neglir 
 genee of the wife in an action brought by her husband 
 for personal injuries, was decided in the affirmative in 
 Chicago, B. & Q. Rd. Co. v. Honey, 63 Fed. Rep. 39, 26 
 L. R. A. 42, where it is held that the wife's contributory 
 fault may constitute a defense to an action by a husband 
 for the loss of her society and expense of her cure, 
 although the statutes for emancipating her from many 
 common law disabilities relieve the husband from re- 
 sponsibility for civil injuries committed by her. 
 
 1 Louisville, N. A. & C. R. Co. v. 36 Fed. Rep. 164; Shaw v. Craft, 
 
 Creek, 130 Ind. 130, 14 L. R. A. 733; 37 Fed. Rep. 317; Galveston H. & 
 
 Miller v. Railway Co., 128 Ind. 97 ; S. A. R. Co. v. Kutac, 72 Tex 643. 
 SheflSeld v. Central Union Tel. Co., 
 
J60 DAMAGES FOR INJURIES, 318 
 
 In discussing this question the court said: " The ques- 
 tion presented by this record and to be decided is accu- 
 rately stated by counsel for the plaintiff in error as fol- 
 lows: 'In an action brought by the husband against a. 
 third party for damages for the loss of the society of his. 
 wife, her aid and surgical attendance, consequent upon 
 physical injuries received by the wife, is the fact that 
 the wife has been guilty of contributory negligence, and 
 the injuries which she received being the result of the 
 concurring negligence of the wife and the third party, a. 
 defense ? ' 
 
 "The circuit court answered this question in the nega- 
 tive, holding in effect that the contributory fault of the 
 wife could not be imputed to the husband, and preclude 
 him from recovering, either on the ground that she was 
 acting as his agent or servant at the time of the injury, or 
 because of the existence of the marital relation. The 
 learned judge of the trial court appears to have been of 
 the opinion that a husband suing for the loss of the serv- 
 ices of his wife, and for medical expenses, occasioned by 
 the negligence of a third party, is, in the state of Iowa at 
 least, unaffected by the fact that the wife was guilty of 
 contributory negligence, because the laws of that state 
 have abolished the legal fiction of the identity of husband 
 and wife, and have exempted the husband from responsi- 
 bility for the negligence and misfeasances of the wife. 
 Vide, 59 Fed. Rep. 42.3. It becomes necessary, to ascertain 
 therefore, whether this view is tenable. Whenever theques- 
 tion has heretofore been considered, it seems to have been 
 taken for granted that the relation existing between hus- 
 band and wife or parent and child is of such character 
 that the plea of contributory negligence on the part of 
 the wife or child, if the latter is of sufficient age and intel- 
 ligence to be chargeable with negligence is a good 
 defense, when the husband or parent brings a common 
 law action to recover for the loss of service or for medi- 
 cal expenses consequent upon physical injuries sustained 
 by the wife or child through the concurring fault of 
 another. The following are some of the cases, and 
 doubtless there are others, where this principle has been 
 recognized and enforced: Cleveland, C. & C. R. Co. v. 
 Terry, 8 Ohio St. 570; Dietrich v. Baltimore & H. S. R. 
 Co., 58 Md. 347; Benton v. Railway Co., 55 Iowa, 496; 
 
3 1 9 DAMAGES FOR INJURIES. 
 
 160 
 
 Pratt Coal & Iron Co. v. Brawley, 83 Ala. 371; Gilliean 
 V. New York & H. K. Co., 1 E. D. Smith, 453. 
 
 "in none of the cases last cited was the reason 
 of the rule stated nor was the subject much dis- 
 cussed. It seems to have been taken for granted that 
 the concurring negligence of the injured party was a 
 sufficient defense to a suit by the husband or parent, 
 when suing merely for a loss of the services of the 
 injured party, or for medical expenses incurred and paid 
 by him in the discharge of his obligation as husband or 
 parent. But the weight to be given to these decisions 
 as authority is not impaired by the fact that the rule 
 stated and applied was not much discussed. On the con- 
 trary the fact that the doctrine applied to the decision of 
 the cases in question was assumed to be correct both by 
 court and counsel, may be taken as an expression of the 
 general understanding of the profession that the doctrine 
 is well established and founded in reason. If we look 
 for the true foundation of the rule in question, we appre- 
 hend that it will not be difficult to find. When one per- 
 son occupies such a relation to another rational human 
 being that he is legally entitled to her society and serv- 
 ices, and to maintain a suit for the deprivation thereof, 
 he should not be permitted to recover in such an action 
 if the loss was occasioned by the concurring negligence 
 of the person on whose account the right of action is 
 given. If the person from whom the right of service 
 and societj^ is derived is capable of taking ordinary pre- 
 cautions to insure her own safety, and the person to 
 whom the right of service belongs suffers her to go 
 abroad unattended and to exercise her own faculties of 
 self-preservation, it is no more than reasonable to hold 
 him responsible, in a suit for loss of society and service 
 for the manner in which such faculties have been exer- 
 cised. We can conceive of no greater reason for deciding, 
 in a case of this character, that a husband is not account- 
 able for the conduct of his wife in caring for the safety 
 of her own person, than there would be for holding the 
 he was not chargeable with her contributory negligence 
 in the management of a horse and carriage belonging to 
 the husband, which she had been permitted to use for her 
 own pleasure and convenience. In either case the fact 
 that the husband has permitted the wife to control her 
 own movements and to provide for her own safety, upon 
 
J 160 DAMAGES FOR INJURIES. 320 
 
 the evident assumption that she is competent to do so, 
 should preclude him for asserting, in a suit against of 
 third party for loss of service or society or for a loss a 
 property, that he is not responsible for her contributory 
 fault whereby the loss was occasioned. In this connec- 
 tion it is worthy of notice that in the state of Iowa, where 
 this case oi^iginated, and in some other states as well, it 
 is held that the husband's contributory fault is imputable 
 to the wife in a suit brought by her against a third party 
 for injuries sustained through the concurrent negligence 
 of such third party and her husband. By the Iowa 
 courts, it is said that the husband's negligence is imput- 
 able to the wife under such circumstances, because of the 
 marital relation which entitles her to his care and protec- 
 tion. Yahn v. Ottumwa, 60 Iowa, 429, as explained in 
 Nesbit V. Garner, 75 Iowa, 314; 26 L. R. A. 152 Peck v. 
 New York, N. H. & H. K. Co., 50 Conn. 379; Carlisle 
 V. Sheldon, 38 Vt. 440. In other jurisdictions it has been 
 decided that the husband's contributory negligfence is not 
 thus imputable to the wife when she sues in her own 
 right for injuries sustained under the circumstances last 
 mentioned. Shaw v. Craft, 37 Fed. Rep. 317; Sheffield v. 
 Central U. Tel. Co., 36 Fed. Rep. 164; Flori v. St. Louis, 
 3 Mo. App. 231 ; Louisville, N. A. & C. R. Co. v. Creek, 
 130 Ind. 139, 14 L. R. A. 733. 
 
 " We do not regard it as material to the decision of the 
 case at bar to determine what the true doctrine is with 
 reference to the point last mentioned, for, even if we 
 should concede it to be the better view that the hus- 
 band's contributory negligence is not imputable to the 
 wife when she sues in her own right for an injury sus- 
 tained, still we think that it would not be a reasonable 
 deduction from this rule that the husband is likewise 
 unaffected by the wife's negligence when he sues for 
 loss of services and medical expenses ; for, when the 
 wife brings an action for personal injuries which she has 
 sustained, the right of action is in no wise dependent 
 upon the marital relation. She does not derive her right 
 to sue from that relation, but brings suit like any other 
 person for an injury sustained through the fault of 
 another. At common law it was necessarv for the wife 
 to be joined as plaintiff in such a suit, because she was 
 regarded as the meritorious cause of action. Bingham, 
 Infancy & Coverture (Am. ed.), 247, and cases there cited. 
 
32 1 DAMAGIiS FOR INJURIES. i 160 
 
 But on the other hand, the husband's right to sue for 
 loss of society and services grows out of the marital 
 relation, and is incident to the rights thereb}'- acquired. 
 It has its origin in the existence of a valid marriage, 
 which relation entitles him to the benefit of the wife's 
 services and society, and which also imposes on him the 
 duty of providing her with medical attendance in case of 
 sickness or accident. "When the husband loses the serv- 
 ices of his wife, or is compelled to incur medical expen- 
 ses, through the fault of another, then he may sue the 
 wrongdoer. The right of action is incident to the mar- 
 riage relation, and cannot exist without it. We think, there- 
 fore, that, even if it is the better view that the husband's 
 contributory negligence cannot be imputed to the wife 
 when she sues for her own injuries, yet that when the 
 husband brings an action for the loss of society and serv- 
 ices, which loss was due to the contributory fault of the 
 wife, her want of ordinary care should nevertheless be 
 imputed to the husband on the grounds heretofore indi- 
 cated. As the respective rights of action are predicated 
 on different grounds, the one growing out of the marriage 
 relation, and the other existing entirely independent of 
 that relation, there is no logical difficulty in holding the 
 husband accountable for the contributory negligence of 
 the wife, although the latter is not responsible for the 
 contributory fault of her husband." 
 
 But in Wisconsin where a wife is injured on account of a 
 defective street while riding with her husband, she is 
 chargeable with his contributory negligence, no dis- 
 tinction being made between a wife and other persons.^ 
 
 The same doctrine was laid down in Vermont, Carlisle 
 V. Sheldon, 38 Vt. 440, where the court says : "She was 
 under the care of her husband who had the custody of 
 her person and who was responsible for her safety, but 
 any want of ordinary care on his part is attributable to 
 her in the same degree as if she was wholly acting for 
 herself. * * * There is nothing in the marital rela- 
 tion which will change the situation of the wife in respect 
 to her husband's negligence under such circumstances. 
 
 But in Ohio the doctrine of imputed negligence does 
 not prevail. The contributory negligence of the husband 
 in the purchase of a drug to be used by his wife is not to 
 
 iPredeaux v. Mineral Point, 43 Wis. 573, 28 Am. Rep. 558. 
 21 
 
g 161 DAMAGES FOR INJURIES. 322 
 
 be imputed to her is an action by her or her administrator 
 against a dealer for injury or death resulting from the 
 use of such drug, unless she constituted him her agent ; 
 and in simply making known to her husband her desire 
 for medicine, by reason of which he obtained it, the wife 
 did not constitute him her agent; in such sense as that 
 his contributory negligence in making the purchas can 
 be imputed to her/ 
 
 § 161, Judgments Recovered. 
 
 $3,000; spasms; plaintiff fell on sidewalk; nail pene- 
 trated bone of leg; left side injured, causing spasms; 
 rendered unable to do her housework; previously enjoyed 
 good health. Burdoin v. Trenton (Mo.), 22 S. W. Rep. 
 728. 
 
 $2,500; shock; sprained ankle and black and blue dis- 
 colorations on left leg, back and side. Lake St. El. Ry. 
 Co. V. Johnson, 70 111. App. 413. 
 
 $2,000; miscarriage; North Chicago St. Ry. Co. v. 
 Shreve, 70 111. App. 666. 
 
 $3,000; ankle joint; violent lacerations and tearing of 
 ligaments and capsules of ankle joint, producing great 
 pain. Christianv. Minneapolis 69Minn.,530; 72N. W.Rep. 
 815. 
 
 $1,000; bruises; head, side and hip bruised; arm lame 
 and stiff; suffered pain and derangement of menstrua- 
 tions. Donnelly v. Railway Co. 70 Minn., 278 ; 73 N. W. Rep. 
 157. 
 
 $5,000; permanent injury; woman; age, twenty-three; 
 seriously and permanently injured; Chicago, M. & St. P. 
 Ry. Co. V. Wilson, 35 111. App. 346. 
 
 $3,500; spine injured; a healthy woman; age, thirty- 
 three; permanently disabled and spine injured. Morris 
 V. Railway Co., 26 N. Y. Supp. 342. 
 
 $2,500; permanently injured. Cross v. Elmira, 33 N. 
 Y. Supp. 947. 
 
 $6,565; permanently injured; both arms broken and 
 hip rendered useless; unable to walk without crutches. 
 Miller v. Boone Co. (Iowa), 63 N. W. Rep. 352. 
 
 $10,000; sight and heart affected; nervous prostration; 
 permanent injury. Illinois Cent. Rd. Co. v. Treat, 75111. 
 App. 327. 
 
 ' Davis V. Guarnien 45 O. S. 470 487. 
 
323 DAMAGES FOR INJURIES. j 161 
 
 $1,000; nerves; permanent injury to. Atchison. T &S 
 F. R. Co. V. Lee, 54 Pac. Rep. 4. ,0.0. 
 
 $3, 750; a healthy woman; bruised and sprained, con- 
 fined to house two or three months, causing prolapsus 
 uteri. Rippe v. Street Ry. Co., 54 N. Y. Supp. 958. 
 
 $3,500; music teacher; unable to work for four months. 
 Willis V. Second Ave. Traction Co., 189 Pa. St. 430, 42 
 Atl. Rep. 1. 
 
 $2,750; bruises; ribs broken; woman; age, thirty-five; 
 had two ribs broken, leg injured and bruised, and unable 
 to do house work. Fulsome v. Railway Co. 72 Minn., 446 ; 
 75 N. W. Rep. 589. 
 
 $1,000; traumatic fever. In O'Toole v. Railroad Co., 21 
 N. Y. Supp. 347, the plaintiff was a woman who was try- 
 ing- to get on a street car with her two children. Through 
 the negligence of th6 defendant she was knocked down. 
 The contusion injured her hip and produced traumatic 
 fever. 
 
 85,000; miscarriage. In Fitzgerald v. Railway Co., 12 
 Upper Canada Q. B. 648, the plaintiffs (husband and 
 wife) were passengers on the defendant road. The 
 wife received an injury in a collision which produced a 
 sickness. The fright, pain and sickness caused a mis- 
 carriage. 
 
 82,000; amputation of arm. In Little Rock and Fort 
 Scott Railway Co. v. Harkey, 15 S. W. Rep. 315, the wife 
 received an injury which necessitated the amputation of 
 her arm and the husband recovered a judgment of $2,000. 
 
 $15,000; spinal cord injured; cripple for life. In Fur- 
 nish v. Railway Co., 102 Mo. 438, 22 Am. St. Rep. 781, the 
 plaintiff, Martha A. I'urnish, brought an action to re- 
 cover damages for injuries sustained by her while a pas- 
 senger on defendant's train, which injured her spinal cord 
 and made her a cripple for life. In this action by her 
 she recovered 815,000. Her husband brought an action 
 to recover damages against the defendant [102 Mo. 669, 
 22 Am. St. Rep. 800] to recover damages for expenses and 
 loss of her society and companionship by reason of the in- 
 jury, in which he obtained a judgment for $5,000. 
 
 $2,500; miscarriage. In Brown v. Chicago, Mil. & St. 
 Paul R. Co., 54 Wis. 342, the plaintiff was put off the train 
 three miles from a station, to which she had to walk. The 
 excitement and fatigue brought on a fever and a miscar- 
 riage. 
 
§ 161 DAMAGES FOR INJURIES. 324 
 
 $8,000; plaintiff in bed three weeks; suffered pain contin- 
 uously from injury; frequent fainting spells; unable ot 
 attend to household duties; despondent and nervous; 
 sense of touch partially lost, resulting in traumatic 
 neurasthenia and hemorrhages of spinal cord. Baker v. 
 Railroad Co., 50 N. Y. Supp. 999. 
 
 $10,000; fractured femur; North Chic. St. Rv. Co. v. 
 Anderson, 70 111. App. 336. 
 
 $2,441; nervous disturbance; woman thirtj'^-six years 
 of age thrown from street car; sustained painful injuries, 
 followed by nervous disturbance with tendency to symp- 
 tons of total disability. Springfield Consolidated St. Ry. 
 Co. V. Hoeffner, 71 111. App. 162. 
 
325 
 
 DAMAGES FOR INJURIES. 
 
 162-363 
 
 CHAPTER XIX. 
 
 DAMAGES SUSTAINED BY PARENT AND INFANT. 
 
 Sec. 
 
 162. Causes of Actiou. 
 
 163. Actiou by Parents. Elements. 
 
 164. No Recovery for Death of lulant 
 
 of Tender Years. 
 
 165. Proof of Elements. 
 
 166. Proof of Personal Earnings. 
 
 167. Recovery for Earnings. 
 
 168. Cost of Board not deducted from 
 
 Earnings. 
 
 169. No Recovery for Personal Feel- 
 
 ings. 
 
 170. Province of Jury. 
 
 171. Verdicts Recovered by Parents. 
 
 172. Actions by Infants. 
 
 Sec. 
 
 173. Choice of Profession. 
 
 174. Damages for Causing Idiocy. 
 
 175. Prospective Earnings. Pleading 
 
 and Proof. 
 
 176. Diminished Earning Capacity 
 
 after Maturity. 
 
 177. Loss of Chances of Marriage. 
 
 178. Amount Recoverable Rests with 
 
 Jury. 
 
 179. When Infant May Recover Earn- 
 
 ings during Minority. 
 
 180. Damages Recoverable. 
 
 181. Injury, How Proved. 
 
 182. Verdicts Recovered by Infants. 
 
 § 162. Causes of Action. When an infant receives a 
 personal injury for which the party, causing it must re- 
 pond in damages, two causes of action arise: First. 
 One action by the parents; and second, another action • 
 by the infant. 
 
 The same general principles apply in ascertaining and 
 determining the amount of damages to be awarded, as in ' 
 actions by adults for like injuries; but the form of action 
 fixes the elements of damages for which the party may re- 
 cover and limits the amount to those elements. 
 
 § 163. Action by Parents. Elements. In an ac- 
 tion by the parent for a personal injury to his child, the 
 measure of damages includes: 
 
 First: expenses of nurse, physician, and all other dis- 
 bursements incurred to effect a recovery. 
 
 Second: The pecuniary loss of the services of the in- 
 fant occasioned by such injury during his minority, or 
 for the period of disability. In case of a full recovery or 
 in case of death the measure of damages would be the 
 loss of services for the period which such infant lived less 
 his maintainanee imposed by law upon the parent accord 
 ing to their circumstances. This means the difference in- 
 the earning capacity of such infant, produced and'caused 
 
i 164 DAMAGES FOR INJURIES. 326 
 
 by the injury for the period of the disability — whether it 
 be a total or partial disability, during his entire minority 
 from the date of the accident. ' 
 
 Third: For reasonable expectation of loss of services 
 or of pecuniary benefit after majority. ^ 
 
 But this doctrine is not generally accepted or adopted 
 and the authorities do not agree. 
 
 The reason why the damages for loss of earnings are 
 confined to the period of minority is that to extend it be- 
 jrond that period opens a field of speculation and of con- 
 jecture which becomes too remote and difficult to con- 
 sider or ascertain. ' 
 
 But in Birkett v. Ice Co. (N. Y.), 110 N. Y. 504, 18 N. 
 E. Rep. 108, the court holds that the jury are not neces- 
 sarily bound to consider, in estimating the damages, only 
 the benefits which would result during the child's minor- 
 ity, but may consider all the probable or even possible 
 benefits which might result to them from her life, modi- 
 fied by the chances of failure and misfortune. ' 
 
 The reason upon which the right of the parent is en- 
 titled to recover damages for injury to his child is that 
 the law imposes upon every parent the duty to take care 
 . of and support his children during their minority. What- 
 ever profit there is in their services during that period 
 belongs to such parent. The expenses made or incurred 
 to effect a cure of the injury become a personal liability 
 of the parent. Therefore, he is entitled to include them 
 in his action for damages. 
 
 § 164. No Recovery for Death of Infant of Tender 
 Years. In some states it is held that there can be no re- 
 covery where the injury resulting in death occurs to an 
 infant of tender years who has never contributed any as- 
 sistance or performed any service for or to his parents. 
 But this element of damages belongs more properly to 
 
 1 Wilton V. Middlesex, etc. Rd. Co., Mo. 164; Davis v. St. L. &I. Mt. Rd. 
 
 125 Mass. 130; Texas, etc. Rd. Co 
 Morin, 66 Texas, 133; Cent., etc. Rd 
 Co. V. Brunsou, 64 Ga. 475; Nehr 
 bras V. Railroad Co., 62 Cal. .320 
 Hoppe V. Railroad Co., 6 1 Wis. 367 
 Stafford V. Rubens, 115111. 196, 3 N 
 
 Co., 53 Ark. 17, 7 L. R. A. 283. 
 
 » Atchison, T. & S. F. Rd. Co. v. 
 Cross, 3 Am. Neg. Rep. 26. 
 
 ' Johnson v. Railroad Co. 64 Wis. 
 425; Gulf Cal. & S. F. Rd. Co. v. 
 Compton, 75 Tex. 87,18 S. W. Rep. 667. 
 
 E. Rep. 568 ; Morris v. Railroad Co., 26 « Traver v. Street Ry. Co., 3 Keyes 
 
 Fed. 22; Evanswich v. Railroad Co., (N. Y.) 497; Penn., etc. Rd Co. v. 
 57 Tex. 123; Rains v. Railroad Co., 71 Zebe, 33 Pa. St. 318 
 
327 DAMAGES FOR INJURIES. ?§ 165-166-167 
 
 that class of cases where death followed the injury.^ See 
 post, Ch. 20. 
 
 In Cincinnati St. Ry. Co. v. Altemeier, 62 Ohio St. 10, 
 the court says: "But how shall this pecuniary injury to 
 the survivors be ascertained and measured by the jury? 
 Manifestly it must be determined by the jury from the 
 evidence in the case and not merely by guess. Such 
 facts should be established in the case by evidence as will 
 enable the jury to fix the amount of the pecuniary loss to 
 each person to share in the recovery, and the jury should 
 confine the verdict to the amount of loss so proven." 
 
 § 165. Proof of Elements. So far as any expenses 
 paid or incurred for physician, nurse and medicine, or for 
 any other necessary and reasonable disbursement, there 
 must be proof and evidence to authorize any recovery.^ 
 
 § 166. Proof as to Personal Earnings. In relation 
 to the personal earnings of an infant, pecuniary loss to 
 the parent will be presumed, and it is not necessary 
 to produce evidence of the value of such prospective 
 services, to sustain the action and recover damages there- 
 for. It rests within the province and good judgment of 
 the jury, from the facts proved showing the extent and 
 nature of the injury ; and within their knowledge and ex- 
 perience, to judge and to estimate the amount of damages, 
 without proof of their value both\present and prospective. ^ 
 But the contra doctrine is enunciated in Ohio.* 
 
 § 167. Recovery for Earnings. In some cases it is 
 held that the parent may recover all the earnings during 
 minority, without deduction of the support of the child, 
 because such parent is legally bound to support the 
 child.' 
 
 iCoalCo. V. ?^ee (Pa. St.), 13 Atl. 198 ; Frick V. Railroad Co., 75 Me. 
 
 Rep. 841 ; Cleary v. Railway Co., 76 542, 25 Am. Rep. 308. 
 
 Cal. 240; Cooper v. Railway Co., 'The v. Railway Co., 47 N. Y. 317; 
 
 66 Mich. 261 ; 11 Am. St. Rep. Durkee v. Cent. Pac. Rd. Co., 56; 
 
 482; Cincinnati St. Ry. Co. v. Cal. 388 ; 38 Am. Rep. 59 ; Olafield v. 
 
 Altemeier, 62 Ohio St. 10. Railroad Co.. 14 N. Y. 310 ; Parsens 
 
 2 Penn. etc. Rd. Co. v. Zebe, 33 Pa. v. Railroad Co., 94 Mo. 236 ; O'Mara 
 
 St. 318- Oakland, etc. Ry. Co. v. v. Railroad Co., 38 N. Y. 445 ; Bruns- 
 
 Fielding, 48 Pa St. 320; Traver v. wig v. White, 70 Tex. 504; Groten- 
 
 Railway Co., 3 Keyes (N. Y.), 497; kemper v. Harris, 25 Ohio St. 510; 
 
 Akersloot v. Railway Co., 8 N. Y. Nagre v. Railroad Co., 7& Mo. 653. 
 
 S 926; Covington St. Ry. Co. v. * Cincinnati Street Ry. v. Alte- 
 
 Packer, 9 Bush. 455, 15 Am. Rep. 721; meier, 62 Ohio St. 10. 
 
 Houston Great North. Rd. Co. v. Mil- ' Mauerman v. Railroad Co., 41 Mo. 
 
 ler 49 Tex. 322 ; Rockford & Rock App. 348; Frick v. Railroad Co., 75. 
 
 Island Rd. Co. v. Delaney, 82 111. Mo. 542. 
 
? 168-169 DAMAGES FOR INJURIES. 328 
 
 § 168. Cost of Board not Deducted from Earnings. 
 
 In the case of Tex. & Pac. Rd. Co. v. Brick, 8^ Tex. 526, 
 29 Am. St. Rep. 675, the plaintiff brought an action to re- 
 cover damages for the loss of the services of his minor 
 son who vras nineteen years old at the time of the injury. 
 He recovered a judgment of $1,200, which the defendant 
 claimed was excessive. 
 
 The court, in discussing the question, said : "The evi- 
 dence showed that the plaintiff's son, at the time of his in- 
 jury, was receiving as wages sixty-five dollars per month. 
 Before that he had been employed in an occupd,tion not 
 attended with any particular danger, in which he received 
 fifty-three dollars per month. At this latter time he lived 
 with his father. There was also evidence tending to 
 show that since the injuries had been inflicted he had 
 not been able to procure employment. His right arm 
 was seriously and permanently impaired, and he lost a 
 foot as the result of his injuries. He lacked a few days 
 of being nineteen years old when the accident occurred. 
 We think the evidence sufflcient to support the verdict. 
 It may be conceded, as the appellant claimed, that his 
 earning capacity in a dangerous business is not the true 
 criterion of the value of his services, so far as the suit of 
 his father is concerned. The contention then is, that 
 from his wages his board should be deducted, and so con- 
 sidered, the net result of his services for two years and 
 twelve days would not amount to the sum found by the 
 jury. But should the board be deducted ? While the 
 father is entitled to the son's services during his minority, 
 he is also bound to support him, and hence the gross 
 amount that the son could have earned is the measure of 
 his loss. Although, as the evidence shows, he may have 
 allowed the son to spend his earnings before the injury, 
 he was none the less entitled to them both before and 
 after the accident ; and under the circumstances of this 
 case, his recovery can only be restricted to the amount 
 the son may have earned before attaining his majority 
 nad not the accident occurred." 
 
 § 169. No Recovery for Personal Feelings. In an 
 
 action by the parents to recover damages personal injury to 
 his child, there cannot be any recovery by such parent for 
 
329 DAMAGES FOR INJURIES. §§ 170-171 
 
 any bodily pain, mental suffering, or for injuries personal 
 to the infant/ 
 
 There cannot be any recovery for any loss of companion- 
 ship and association or any feelings personal to the par- 
 ents.^ 
 
 The contra doctrine has been held in the State of Cali- 
 fornia' 
 
 But it has been modified and limited in its application, 
 and is now held only admissible to show a pecuniary 
 loss.* 
 
 § 170. Province of Jury. The amount of the value 
 of the services belong exclusively to the jury; but it 
 should be a reasonable amount, according to the facts 
 appearing and shown in the case. 
 
 The circumstances of the infant ; his age and intelli- 
 gence ; strength and health before the accident; his so- 
 briety and industry ; all these facts are both matter of 
 proof and also common observation. They all should be 
 taken into consideration in making up the amount of the 
 verdict.* 
 
 In Clinton v. Laning, 61 Mich. 355, it is held that the 
 son's probabilities of life are not based upon the stand- 
 ard applied to sound and healthy persons : but upon the 
 actual condition and prospects ; and the period of support 
 is limited to the life of the father upon whose 
 death the support would not fall to the estate. * 
 
 § 171. Verdicts Recovered by Parents. 
 
 8i,000; death of daughter. In Bowles v. Railroad 
 Co., 49 Hun. (N. Y.) 324, the father brought an action to 
 recover loss of services of his daughter who was thirty- 
 six years of age and who contributed $300 or $400 per 
 year for the support of himself and wife. 
 
 iDurkee V. Railroad Co., 56 Cal. ' Munro v. Dredge & Rec. Co., 84 
 
 388,38 Am. Rep. 59 ; Pennsylvania Rd. Cal. 518 ; Cleary v. City Railway Co., 
 
 Co. V. Kelly, 31 Pa. St. 372; Citv of 76 Cal. 240; 
 
 Galveston V. Barbour, 62 Tex. 172. • Morgan v. South Pac. Co., 95 
 
 2(8) Nash&Chat Rd. Co. v. Smith, 6 Cal., 510; 29 Am. St. Rep. 143, 17 L, 
 
 Heiskell (Tenn.),174; 15 Am & Ei.R. R. A 71. 
 
 cases 469; Little Rock & Ft. Smith » Hazard Powder Co. v. Volger, 58 
 
 Rd. Co. V. Barker, 33 Ark. 350; Gulf Fed. Rep.162, 7 C. C. A. 130; Eweu v. 
 
 Cal.&SantaFeRd.Co.v. (Tex.),12Am. Railroad Co.. 38 Wis. 13 ; Houston 
 
 &Eng. Cases 90; Covington St Ry. v. Railroad Co., 57Tex. 293. 
 
 Co. V. Packer, 9 Bush. (Ky.) 455 ; State « Agricultural & Mech. Assn. v. 
 
 V. Railroad Co , 24 Md. 106- Steele v. State, 71 Md., 17 Am. St. Rep. 510. 
 Kurtz, 28 Ohio St. 191. 
 
? 171 DAMAGES FOR INJURIES. 330 
 
 $1,500; death of daughter. In Cooper v. Railroad Co., 66 
 Mich. 261, 11 Am. St. Rep. 482, action by a parent for 
 damages for the death of his daughter eleven years 
 of age in good health, was not considered excessive. 
 
 $1,500; death of daughter. In Ihl v. Street Ry. Co., 
 47 N. Y. 317, the mother was plaintiff. Her daughter 
 was nine and a half years old and was run over by the de- 
 fendant's horse car and killed. 
 
 $1,500 ; death of daughter six years. In Bruns- 
 wig V. White, 70 Tex. 504, the plaintiffs were the parents. 
 Through the negligence of the defendant their daughter 
 six years of age met her death. The parents were poor, 
 and the child aided in the household work. Her death 
 was occasioned by taking wrong medicine put up by the 
 defendant. The sum of $1,500 was allowed by the jury. 
 
 $5,000 ; injury to daughter. In Cummings v. Street 
 Ry. Co., 109 N. Y. 95, 5 N. Y. S. 476, the mother recov- 
 ered $5,000 for loss of the services of her daughter, who 
 received a permanent injury at the age of five, disabling 
 her for life. It was held that she could not recover for 
 prospective medical services. 
 
 $3,085 ; injury to child two and a half years. In 
 Frick V. Railroad Co., 75 Mo. 542 (10 A. & E. Rd. 
 Cas. 776), the father of the child brought an action against 
 defendant company for damage sustained by his injured 
 child two and a half years old, who strayed upon the 
 track and was injured. 
 
 $1,027; total disability of son. In Mauerman v. 
 Railroad Co., 41 Mo. App. 348, the mother recovered judg- 
 ment for the value of the earnings of her son during mi- 
 nority, who was totally disabled by the defendant. He 
 was nineteen years of age and earning sixty dollars per 
 month at the time of his injury. 
 
 $2,000; loss of services of infant son. Jn Akersloot 
 V. Railway Co., 8 N. Y. S. 926, the father as plaintiff re- 
 covered a payment of $2,000 for loss of the services of his 
 son, who received an injury which disabled his right leg. 
 
 $2,000; injury to son nineteen years. In Hous- 
 ton & Great Northern Ry. Co. v. Miller, 49 Tex. 322, the 
 son aged nineteen years was a brakesman on defendant's 
 road. He received an injury which caused the loss of an 
 arm. His father was held to be entitled to recover all 
 expenses for medical services, nurse and loss of earnings. 
 The jury gave a verdict of $.',000. 
 
331 DAMAGES FOR INJURIES. §171 
 
 $2,500 ; death of son eight years In Eiven v Chic 
 & N. W K. R. Co., 38 Wis. 613, the plaintiff was the 
 mother of her son eight years old, who received an iniury 
 which caused his death, bhe was in poor health and had 
 httle means. Her son was a bright and healthy boy and 
 in no way contributed to the injury. Her judgment was 
 $2,500 and it was held not excessive. 
 
 $2,500 ; Injury to son eighteen years. In Traver 
 V. Railway Co., 3 Keyes 497, the plaintiff as mother 
 brought an action to recover for loss of the services of her 
 son during minority, who was injured by the defendant 
 at the age of eighteen years and disabled from perform- 
 ing any physical labor. If the disability continued be- 
 yond majority, the son was entitled to recover damages 
 for such period as the disability continued. 
 
 $2,500; Injury to son eight years. In Drew v. Street Ry. 
 Co., 26N.Y. 49, aboyeightyearsoldwasinjuredwhileapas- 
 senger. It was held that the parent could recover not only 
 damages down to the time of trial, but also all such pro- 
 spective loss as must necessarily follow from the injury. 
 
 $4,500 ; death of son. In Aherns v. Steele, 1 N. Y. 
 Supp. 259, the son of the plaintiff was six years of aye, 
 and went down to the dock to meet his father, who came 
 off a boat about 5 P. M. When leaving the dock the boy 
 fell through an unguarded and hidden hole in the dock, and 
 was drowned. His father recovered $4,500, which was 
 held not excessive. 
 
 $5,000; death of son. In Mo. Pac. K. K. Co. v. Lee, 
 70 Tex 496, the action was brought by the mother to re- 
 cover damages for killing her son, who was a bright, sober 
 and industrious boy and his mother's chief support. He 
 was driving a wag'on across the track, a right of way of the 
 company which it had suffered to grow up full of weeds. 
 The wind was blowing hard and without any warning 
 the boy was struck and killed. The court said: "The 
 true measure of damages for the death of the plaintiff's 
 son is a sum equal to the pecuniary benefit the parent had 
 a reasonable expectation of receiving from her child, had 
 he not died. And in estimating such sum, if any, consider 
 under the evidence before you the age of the deceased, the 
 time he might have lived, the age of the plaintiff, the time 
 she may probably live, and any other evidence tending to 
 show what damages she may have suffered by the killing 
 of her son." 
 
?§ 172-173-174-175 DAMAGES FOR INJURIES. 332 
 
 $1,250 ; death of son. In Pennsylvania Coal Co. v. 
 Nee, Pa. St. (13 Atl. Rep. 841), the plaintiff's son, who was 
 fourteen years old, was in the employ of the defendant 
 Coal Co., and went through an unbidden entrance where 
 he had seen other boy employees go. He fell into a pit 
 and was killed. He had not been notified of its danger by 
 the defendant. He was earning sixty and seventy cents 
 per day. 
 
 § 172. Actions by Infants. Whenever an infant re- 
 ceives a personal injury which entitles him to an action 
 for damages, he may recover in such action: . 
 
 First: Damages for bodily pain and mental suffering. 
 
 Second: Any proximate damages resulting from the 
 injury and any permanent injury to his person which will 
 incapacitate him to earn a livelihood in a trade, business, 
 or profession. 
 
 These are damages personal to such infant, and which 
 do not belong to any other person. Incase of death from 
 such injury, they constitute a part of the estate belonging 
 to the next of kin where the statute provides that the 
 action survives. ^ 
 
 § 173. Choice of Profession, In the case of Power 
 V. Harlow, 57 Mich. 107, the court held that it was proper 
 for the jury to take into account how the plaintiff might 
 be restricted in his choice of an occupation bj'^ the injury, 
 and limited in his ability to work. In this case the plain- 
 tiff received an injury by the explosion of dynamite. At 
 that time he was eight years and four months old and 
 went with his brother, who was two years older, to take 
 to their father his dinner. 
 
 § 174. Idiocy. Damages may be recovered by an infant 
 when he has received an injury which has caused a per- 
 manent idiocy.' Judgment of $8,500, was affirmed. 
 
 § 175. Prospective Earnings Recoverable. Plead- 
 ing and Proof In the case of Schmitz v. Railroad Co., 
 119 Mo. 256, 23 L. R. A. 250, it is held that prospective 
 damages by the impairment of plaintiff's capacity for 
 earning a livelihood after his majority is a proper element 
 in an action for personal injuries by a minor nine years, 
 old, although his petition contains no specific allegation 
 
 'Wilihyk V. Railroad Co., 14 App. Div. (N. Y.) 515, 1 Am. Neg. Rep. 640. 
 
^^' DAMAGES FOR INJURIES. ^ 176 
 
 in regard thereto and there is no direct evidence on the 
 subject. 
 
 The court, in discussing the question, said : "It is well 
 settled that prospective damages to adults on account of 
 impairment of earning capacity in the future is a proper 
 element of damages in the cases of personal iniuries 
 Whalen v. Railroad Co., 60 Mo. 32d ; Pry v Rail- 
 road Co., 73 Mo. 124 ; 2Sedgw. Damages, (8ed.) Sec. 485. 
 "Ordinarily, damages will not be awarded to compen- 
 sate for losses not yet experienced on mere conjectural 
 possibility that such loss will occur. In the case of an 
 adult, proof should be made of previous physical condi- 
 tion and ability to labor or follow his usual avocation, as 
 well as his condition since the injury, to enable the jury 
 to properly find the pecuniary damage. 5 Am. & Eng. 
 Enc. Law, 41, and authorities cited. 
 
 "What mayor may not be done by any one in the future 
 depends upon so many contingencies that prospective 
 loss of earnings cannot be susceptible of direct and con- 
 clusive proof, even in cases of adults. Nevertheless, as 
 has been seen, such damages are uniformly allowed. 
 The impairment of the earning capacity of one in his in- 
 fancy is as great a damage to him as though he had not 
 been injured until the day he had reached his majority. 
 That he would have an equal right to compensation logic- 
 ally f(!llows. Thisplaintiff had never earned anything, and 
 what his ability to labor or his capacity to earn money in 
 business pursuits will be in the future, no one can tell 
 with any certainty. It is properly held in such case, in 
 the absence of the existence of direct evidence, that much 
 •must be left to the judgment, common experience, and 
 'enlightened consciences of the jurors, guided by the facts 
 and cii-cumstances in the case'. It follows as a necessary 
 consequence, if such damage was not susceptible of proof, 
 that it was not necessary that the petition should contain 
 specific allegation in regard thereto. The jury saw the 
 injured limb, heard the attending physician testify that 
 the injury was permanent, and that he would be a cripple 
 for life; and they were well prepared to judge from ob- 
 servation of the future ability of plaintiff to earn a liveli- 
 hood after he arrived at the age of maturity as any one 
 else." 
 
 In an action by an infant four years of age for personal 
 injuries, the jury may take into consideration his pro- 
 
?? 177-178 DAMAGES FOR INJURIES. 33+ 
 
 spective loss of earnings after he shall have attained his 
 majority, although he has never earned anything, and no 
 one can tell with any certainty what his future earning 
 capacity will be/ 
 
 § 177. Loss of Chances of Marriage Recoverable. 
 
 In Smith v. Railroad Co., 90 Fed. Rep. 783, a little girl 
 five years old sustained an injury which disfigured her so- 
 that it almost entirely destroyed her chances of marriage 
 if she grew to a woman. 
 
 The court held where a personal injury to a little 
 girl is such as to seriously impair the prospects of mar- 
 riage when she reaches a marriageable age, such fact may 
 properly be considered by the jury as an element of dam- 
 ages resulting from the injury. 
 
 The court, in discussing this question, said : ''And on 
 this rule, I am unable to see why a girl five years old may 
 not ask the jury to consider what effect the injury of dis- 
 figurement will probably have on the prospects of her 
 marriage when she reaches the age of womanhood, 
 and how far the money value of her whole life may be 
 blasted by those circumstances. It is not speculative be- 
 cause it is difficult to estimate, nor in any other sense 
 than almost every element of damages is speculative 
 where the ascertainment depends on wh^t the jury, or 
 any other trier of the fact, 'shall deem fair and just' and 
 where, being 'uncertain and indefinite' the damages are 
 not capable of adjustment 'with precision and accuracy,* 
 as was stated in the Ohio case. The estimate must be 
 entire, once for all, and hence we cannot wait to see how 
 the unknown adversities or contingencies of the future 
 may effect the question ; as if, by some other calamity, 
 those prospects, which we presently estimate, should 
 turn out to have no existence at all ; as if the girl should 
 die before she reaches womanhood ; or, having reached it, 
 should find a profitable marriage notwithstanding the dis- 
 figurement," 
 
 § 178. Amount Recoverable Rests With Jury. 
 
 An action was brought by a boy nine years old for per- 
 sonal injuries received on a public street crossing in the 
 city of Atlantic He was thrown down and run o er by 
 the cars of the defendant. His chief injury was the loss 
 
 > Rosenkrang v. Railway Co., 108 Mo. 9, 32 Am. St. Rep. 588. 
 
335 DAMAGES FOR INJURIES. J I79 
 
 of his right arm which had to be amputated above the 
 elbow. He obtained a judgment of $10,000. 
 
 The Supreme Court approved the following charge of 
 the trial court: "I am of the opinion, and so charge you, 
 that the law is, that, in a case where the injured party is 
 too young to have selected an avocation, or to begin to 
 illustrate by his labor his wage earning capacity, the mat- 
 ter of the amount of damages for a personal injury rests 
 in the sound discretion of the jury, to be exercised in the 
 light of their common observation and experience, and 
 aiming to compensate the plaintiff for the injury actually 
 sustained in this respect."' 
 
 § 179. Infant May Recover Earnings During Mi- 
 nority, When. Where the plaintiff was an infant and 
 brought an action to recover for the loss of a leg caused 
 by one of the cars of the defendant running over it, it 
 appeared that at the time of the accident his mother was 
 alive but she died in eighteen months. She died without 
 bringing anj' action for the damages, which she sustained. 
 The trial court, on jthe measure of damages, charged the 
 jury as follows : "If, under the evidence and the instruc- 
 tions herein given you, you should find for the plaintiff, 
 you are charged that, in determining the amount of your 
 verdict, you may look to the age of the plaintiff, the 
 nature and character of the injury inflicted, the mental 
 and physical pain caused by the injury, and plaintiff's 
 diminished capacit}^ to earn mone}'^ on account of said 
 injury. He could not, however, recover anything on 
 account of his diminished capacity to earn money up to 
 the time of the death of his mother."' 
 
 The court, in discussing the question, says: "The appel- 
 lant complains of this charge, and submits two proposi- 
 tions : First. Under the facts and pleadings in this case, 
 plaintiff could only recover on account of diminished 
 capacity to earn money after he ari-ived at the years of 
 his majority. Second. If there was any reason why 
 plaintiff should be allowed to recover for diminished 
 capacity to earn money before reaching the age of 
 twenty-one vears, the same should have been specially 
 pleaded." The facts show that at the time the injury 
 occurred, the plaintiff's inother was living. She died 
 eighteen months later and this suit was brought subse- 
 
 1 Western & Atlantic Rd. Co. v. Young, 8'. Ga. 397. 
 
? 179 DAMAGES FOR INJURIES. 336 
 
 quent to her death. Plaintiff's petition alleged that the 
 mother was living at the time of the accident, but noth- 
 ing was said about her being dead at the time the suit 
 was brought. Under the law of this state, the parent is 
 entitled to the services of a minor child until the age of 
 majority is reached, and, when injury is -afflicted upon the 
 minor for which an action for damages will lie, a parent 
 is entitled to recover for the dirninished earning capacity 
 by reason of such injury during the minority of the child. 
 Railway Co. v. Morin, 66 Tex. 133, 18 S. W. Rep. 345. If at 
 the time of the injury, the minor is, for any reason, eman- 
 cipated, it would be entitled to recover for the damages 
 received. Railway Co. v. Witten, 74 Tex. 202, 11 S. W. Rep. 
 1091. The question then arises, was the plaintiff herein 
 debarred the right to recover for incapacity to earn 
 wages by reason of the injury, because, at the time such 
 injury was inflicted, his mother was living and entitled 
 to his services, although she died long before his major- 
 ity; she never having recovered any damages from said 
 company therefor, or in any manner made any settlement 
 for the same with said company. The theory upon which 
 the right of the parent to recover for the services of a 
 minor child is based is the duty of the parent to maintain 
 and educate the child during its minority. When the 
 child becomes emancipated from any cause, it then is 
 entitled to remuneration for its services, and to recover 
 damages for a wrong that lessens its capacity to earn 
 money. After the death of the mother of plaintiff, he was 
 entitled to receive pay for his services when rendered. If 
 the railway company negligently inflicted injury upon him 
 by which his earning capacity was diminished, we see no 
 reason why he should not be entitled to recover, said rail- 
 way company never having responded in damages there- 
 for. Although the right of action at the time of the acci- 
 dent accrued in the mother, and she would have had at any 
 time before her death a right to recover of the railway 
 company damages for the loss of the services of the child 
 to his majority, yet, she having failed to do so, the appel- 
 lant would not be relieved from paying to the plaintiff 
 such damages as. may have accrued to him by reason of 
 the injury after the death of the mother. The damage 
 that accrued to the mother in this case was the loss 
 of the child's services up to the time of her death, 
 
 ' Mo., K. & T. R. Co. V. Tonahill, 3 Neg. Rep. 287. 
 
337 DAMAGES FOR INJURIES. 
 
 180.181 
 
 while the damage inflicted upon the child was such as 
 might accrue on accont of its diminished capacity out 
 earn money during its life. 
 
 We think the pleadings were sufficient to entitle plain- 
 tiff to recover for the diminished capacity to earn from 
 the date of his mother's death. If there was any reason 
 that prevented him from recovering, it was the duty of 
 the railway company to plead it. None was pleaded by 
 the railway company, nor was there any reason given in 
 its motion for a new trial which would show that appel- 
 lant was injured by reason of surprise." 
 
 § 180. Damages Recoverable. The same general 
 rules apply to the amount of damages to be awarded 
 under these two elements, when an action is brought by 
 the infant, and he is entitled to a recovery of the same dam- 
 ages, as when an adult brings an action for damages for 
 like personal injuries which entitles him to relief. 
 
 § 181. Injury, How Proved. The extent and nature 
 of the injury, its permanency, and probable effect upon 
 his capacity to learn or pursue any trade, business or 
 profession, and the loss occasioned thereby should all be 
 proved as far as possible, and taken into consideration 
 by the jury in assessing and estimating damages. 
 
 The amount should be reasonable and consistent with 
 the character and surroundings of the infant, his sobri- 
 ety, intelligence and health at the time of the injury — par- 
 ticularly under the element of proximate or personal 
 damages. 
 
 The amount to be awarded for cuts, bruises, bodily 
 pain and mental suffering is the same in relation to an 
 infant as to an adult. 
 
 In Western & Atlantic R. R. Co. v. Young, 81 Georgia, 397, 
 when the action was brought by an infant for damages for 
 personal injuries, the court in his charge to the jury said: 
 '''The plaintiff also claims damages for pain, past, pres- 
 ent and prospective, which he says that he has suffered, 
 and will continue to suffer as the result of the injury and 
 for alleged deformity or impairment of his physical sym- 
 metry. As to cuts, wounds, bruises and the like and the 
 pain and suffering resulting therefrom, from the loss of 
 a member, the law has no standard by which the amount 
 of damages of this sort may be ascertained. Damages of 
 
 22 
 
{ 182 DAMAGES FOR INJURIES. 338 
 
 this kind are peculiarly in the discretion of the jury. 
 The law refers the matter of amount if any to be awarded 
 to the enlightened consciences of impartial jurors whose 
 aim it is to be fair and reasonable, just, and not oppres- 
 sive." 
 
 § 182. Verdicts Recovered by Infants. 
 
 $5,500. A small boy received an injurj- which required 
 the amputation of an arm. Louisville & N. R, Co. v. 
 Chism, 20 Ky. Law Rep. 584, 47 S. W. Rep. 217. 
 
 $15,941.25.' A boy eighteen months old received an 
 injury which required the amputation of a leg below the 
 knee. Kalfur v. Broadway Ferry & M. Ave. R. Co , 54 
 N. Y. Supp. 503. 
 
 ^8,000. A boy eighteen years old sustained an injury 
 by which he lost his foot. San Antonia & A. P. Ry. Co. 
 V. Greene, 20 Tex. Civ. App. 5, 49 S. W. Rep. 670. 
 
 $3,500. A boy nineteen years old sustained an injury 
 by which he lost his right hand. Greenville Oil & Cot- 
 ton Co. V. Harkey, 20 Tex. Civ. App. 225, 48 S. W. Rep. 
 1005. 
 
 $2,000. A young man received an injury by sustaining a 
 simple fracture of the thigh bone and a shortening of the 
 leg. Metropolitan West Side El. Co. v. Kersey, 80 111. 
 App. 301. 
 
 $12,000. A girl sixteen years old received an injury 
 which caused the loss of h-er right leg. Sloniker v. Rail- 
 way Co., 76 Minn. 306, 79 N. W. Rep. 168. 
 
 $25,000. An infant three years and six months old was 
 injured so that a leg was lost. Urman v. Street Ry. Co., 
 14 N. Y. Supp. 336. 
 
 $9,000. An infant sixteen years old sustained an injury 
 requiring one leg to be amputated, and loss of the use 
 of one arm and a concussion of the spine. International 
 & G. N. R. Co. V. Hinzie, 82 Tex. 623. 
 
 $4,000. A boy fifteen years old lost three fingers. Barg 
 V. Bousfield, 65 Minn. 355, 68 N. W. Rep. 45. 
 
 $2, .500. A boy four years old was permanently dis- 
 abled. Atchison, T. & S. F. R. Co. v. Elder, 59 111. App. 
 276, 149 111. 173. 
 
 $4,000. A little girl crippled for life. Coins v. Mob- 
 erly, 127 Mo. 116, 29 S. W. Rep. 985. 
 
 $10,000. A boy sixteen years old received an injury 
 causing a permanent impairment of his mind wholly 
 
339 DAMAGES FOR INJURIES. 
 
 ? 182 
 
 unfitting him for business for life. N. Y. C. & St L 
 R. Co. V. Luebeck, 54 111. App. 551. 
 
 $14,500. A young man received an injury which left 
 him permanently maimed for life. Howe v. Kailroad Co. 
 62 Minn. 71, 64 N. W. Rep. 102. 
 
 $6,447. A child six years old had her face cut open 
 resulting in a permanent sear rendering her unable to 
 masticate food on one side of her mouth. Pier collar bone 
 and four ribs were broken and there was an injury to the 
 pelvis. Bennett v. Railroad Co., 37 N. Y. Supp. 447. 
 
 $8,000. A child was injured so that a portion of the 
 femur was removed causing a shortening of the right leg 
 four to six inches. Was in bed eighteen months. Lor- 
 ence v. EUensburgh (City ) , 13 Wash. 341, 43 Pac. Rep. 20. 
 
 S10,500. A little girl three years old lost her foot. 
 Chipman v. Railroad Co., 12 Utah 68, 41 Pac. Rep. 562. 
 
 $15,000. A child nine years old lost one leg. Roth v. 
 Union Depot Co., 13 Wash. 534, 43 Pac. Rep. 641. 
 
 810,000. A boy seven years old lost a leg and the other 
 was rendered permanently weak. Ft. Worth & D. C. R. 
 Co. v. Robertson (Tex.), 14 L. R. A. 781. 
 
 $12,000. A boy five years old lost a leg. Akers Loot 
 V. Railroad Co., 131 N. Y. 599, 15 L. R. A. 489. 
 
 $10,000. A boy nineteen years old, healthy and strong, 
 capable of doing good work, received an injury resulting 
 in the amputation of left arm. Baltzer v. Railroad Co., 
 89 Wis. 257, 60 N. W. Rep. 706. 
 
 $2,900. A child six years old was shot in the eye by 
 which the sight was destroyed and the other was 
 seriously affected. Seltzer v. Saxton, 71 111. App. 229. 
 
 $7,000. A boy three years old was rendered a cripple 
 for life. Ft. Worth St. Ry. Co. v. Witten. 74 Tex. 202, 
 11 S. W. Rep. 1091. 
 
 $3,000. A boy received a permanent injury by being 
 run over by a street car. Buck v. Street Ry. Co.. 46 Mo. 
 App. 555, 18 S. W. Rep. 1090. 
 
 $7,500. A boy thirteen years old was severely burned 
 by running into a burning slack pile. O'Donnell v. Rail- 
 road Co., 42 Fed. Rep. .579. 
 
 $7,000. A young girl about fifteen years was struck by 
 a mail pouch thrown by the defendant's employe. She 
 received an injury, causing the loss of one eye. Shaw v. 
 Railway Co., 123 Mich. 629, 49 L. R. A. 308. 
 
i 183 
 
 EXEMPLARY DAMAGES. 
 
 340 
 
 CHAPTER XX. 
 
 EXEMPLARY DAMAGES. 
 
 Sec. 
 
 183. General Principles. Exemplary 
 
 Damages. When Recoverable. 
 
 184. Exemplary Damages. Must be 
 
 Proved. 
 
 185. Exemplary Damages. Must be 
 
 Pleaded. 
 
 186. Province of Jury. 
 
 187. Amount of DamagesRecoverable. 
 
 188. Excessive and Inadequate Dam- 
 
 ages. 
 
 189. Counsel Fees. 
 
 190. Legislatures. 
 
 Sec. 
 
 191. Corporations Liable for Exem- 
 
 plary Damages. 
 
 192. Corporations held not Liable. 
 
 193. Actions in which Exemplary 
 
 Damages are Recoverable. 
 194 Municipal Corporations not 
 Liable for Exemplary Damages. 
 
 195. Damages for causing Death 
 Dependent upon Statute. 
 
 196. Damages should be Proportion- 
 
 ate. 
 
 197. Remission of Actual Damages. 
 
 § 183. General Principles. Exemplary Damages — 
 When Recoverable. The rules given in the previous 
 chapters in relation to damages in its various phases 
 are confined to what is known in law as compensatory 
 damages ; that is, such damages as will compensate or 
 reimburse the injured party for the actual wrong which 
 he has suffered. But there is a class of eases where 
 compensatory damages are inadequate and do not fully 
 compensate the injured party for the wrong- done. In 
 this class of cases the jury is authorized to include addi- 
 tional damages by way of vindication or punishment for 
 the wrong which has been done to the injured party. 
 They are called in law exemplary or punitive damages. 
 They are inflicted as a punishment where the wrongdoer 
 acted from malicious or wicked motives, or has been 
 entirely indifferent and reckless and negligent in the 
 discharge of duties imposed on him by law. Mr. Thomp- 
 son in his work on negligence defines exemplary damages 
 as follows : 
 
 "Exemplary, punitive, vindictive damages or smart 
 money, as they are indifferently called, are given 
 by way of punishment of the wrong committed by 
 the defendant, and with the view of deterring others 
 from like offenses. Whether or not the case is one that 
 
341 EXEMPLARY DAMAGES. § 183 
 
 justifies exemplary damages, is a question for the 
 court to determine in its instructions to the jury. ■ 
 In the discharge of its duty, the court looks to the 
 animus of the defendant that accompanies the injury. 
 If it was wantonly or willfully inflicted, or with such 
 gross want of care and regard for the right of others 
 as to justify the presumption of willfulness or wanton- 
 ness, the court will instruct the jury that they are 
 at liberty to find for the plaintiff in addition to compen- 
 sation for the injury actually sustained such a sum as the 
 circumstances justify." 
 
 In Wood's Mayne on Damages at page 59, he says : 
 "But in order to warrant a jury in giving vindictive 
 damages, something more than mere unlawfulness must 
 be shown. There must be evidence of fraud, malice, 
 wantonness or oppression. Actual malice need not exist to 
 entitle a party to punitive damages, and if the act is 
 wantonly or recklessly done, vindictive damages may be 
 given, although there is no malice. Any act conceived in 
 a spirit of mischief or in evident disregard of the rights 
 of others or of civil or social obligations, come within the 
 idea of a malicious act." 
 
 In Philadelphia, etc. R. R. Co. v. Quigley, 21 How. 207, 
 the Supreme Court of the United States said : 
 
 "In Day v. Woodward, 13 How. 371, this court recog- 
 nized the power of the jury in certain actions of tort to 
 assess against the tort feasor punitive or exemplary 
 damages. Whenever the injury complained of has been 
 inflicted maliciously or wantonly and with circumstances 
 of contumely or indignity the jury are not limited to the 
 ascertainment of a simple compensation for the wrong 
 committed against the aggrieved person. But malice 
 spoken of in the rule is not merely the doing of an unlaw- 
 ful or injurious act. The word implies that the act com- 
 plained of was conceived in the spirit of mischief or of 
 criminal indifference to civil obligations." 
 
 Exemplary damages are synonymous with punitive or 
 vindictive damages ; they are sometimes called "smart 
 money." 
 
 In order to justify the award of exemplary damages 
 there must be some willfulness, malice, violence or 
 oppression in the act or an intentional wrong done, or in 
 
J 183 EXEMPLARY DAMAGES. 342 
 
 the absence of actual malice proof that it was committed 
 under circumstances of violence, oppression, outrage or 
 wanton recklessness.' 
 
 Where the injuries or sufferings were intended, or 
 occurred through carelessness or negligence amounting 
 to a wrong so reckless and wanton, as to be without pallia- 
 tion or excuse, additional damages, termed exemplary, 
 punitive, vindictive, compensatory or added damages 
 may be given agreeably to what would be right and just 
 under the circumstances of each case.^ But injuries 
 resulting from simple negligence only as contradistin- 
 guished from gross negligence are no ground for exem- 
 plary damages.' Still a railroad company may be liable 
 for exemplary damages in cases of injuries to passengers 
 resulting from a violation of duty by one of its employes 
 in the conducting of its train. If such violation is 
 accompanied by oppression, fraud, malice or insult or 
 willfulness and reckless disregard of consequences.* 
 
 Exemplary damages will not be allowed for a failure to 
 stop a train at a statiun and give a passenger an oppor- 
 tunity to alight therefrom unless the failui'e to stop was 
 willful or the wrong was aggravated in some manner by 
 the railroad company or its employees.^ 
 
 Exemplary damages are given by way uf punishment 
 for the wrong inflicted and are not allowed for mere 
 negligence, but only in cases where the wrong is wan- 
 tonly and willfully inflicted or with such gross want of 
 care and regard for the rights of others as to justify the 
 presumption of wantonness or willfulness. Actual malice 
 need not exist or be proved to entitle the party wronged 
 to exemplary damages. When a cause of action is an 
 invasion of the rights ot- property of a person natural or 
 artificial, characterized by violence, fraud, or wantonness 
 or reckless disregard of social or civil rights, exemplary 
 damages may be recovered. ° 
 
 ■ Philarlelphia Traction Co. v. Or- » Ala., etc. R. R. Co. v. Arnold 84 
 
 bann, 119 Pa. St. 37 ; Hittsbursh.C. & fl.la. l-'ig, 5 Am. St. Rep. 354 ; Hurt v. 
 
 St. L. R. Co. V. Lvoii, 123 Pa. Railroad Co., 94 Mo. 255 4 Am St. 
 
 St. 140, 2L. R. A. 4i89; Kiel V Char- Rep 374. 
 
 tier.-* Valley Gas Co., 131 Pa St. 466 ; ♦Louisville,etc. R. R. Co. v Ballard, 
 
 Stevenson v. Brown. 147 Pa. St. 350; 85 Kv. 317, 7 Am. St. Rep 603 
 
 Winters v. Cowen, 12 O. F. D. 108. "Dorrah v. Railroad Co., 65 Miss. 
 
 i^Ross V. Leggett, 61 Mich. 445, 1 14, 7 Am. St. Kep. 629. 
 
 Am. St. Rep. 608. « Spellman v. Railway Co., 35 S. 
 
 Car. 475, 28 Am. St. Rep. 858. 
 
343 EXEMPLARY DAMAGES. § 183 
 
 A tort that sounds in exemplary damages exists when 
 some right of property of a person, natural or artificial, 
 is invaded maliciously, violently, wantonly or with reck- 
 less disregard of social and civil obligations/ 
 
 Exemplary damages may be assessed when malice and 
 oppression weigh in the controversy, and the offense is 
 not punishable by criminal law/ 
 
 Exemplary damages are awarded as a compensation to 
 the plaintiff for the wrong done to him, and as a punish- 
 ment for the tort feasor/ 
 
 Malicious injury to a person or property does not 
 require that there should be actual enmity toward the 
 injured party to enable him to recover exemplary dam- 
 ages/ 
 
 Exemplary damages are not recoverable for mere 
 negligence/ 
 
 In the state of Washington the allowance of exem- 
 plary damages is denied. The doctrine of exemplary 
 damages is unsound in principle and unfair and danger- 
 ous in practice, and such damages cannot be recovered 
 although the defendant may have been guilty of gross 
 neglect/ 
 
 In Ross V. Leg-gett, (51 Mich., 445, an action was 
 brought by Ross against Leggett as president of the 
 Brush Electric Light Company for causing the unlawful 
 arrest of plaintiff without a warrant, and afterwards to 
 be incarcerated in the substation of the city of Detroit 
 for a period of about twelve hours. An action was 
 brought to recover damages for such unlawful arrest and 
 imprisonment, and upon the subject of damages the court 
 charged the jury as follows : 
 
 "There are two kinds of damages, — the law has divided 
 them into two classes. * * * In the first place, there 
 are what are called 'actual' damages. Then there are 
 what are called 'vindictive' or 'punitory' damages, or ■ 
 what our own supreme court calls ' added' damages, for 
 want of a better name. A.ctual damages are such com- 
 
 'Samuelsv. Railway Co., 35 S. Car. *Hopen v Walker, 96 Mich. 236, 
 
 493. 28 Am. St. Rep. 883. 35 Am. St. Rep. 5"8. 
 
 'Louisville, etc. R. R. Co. v. Wolf, ^ Rich, etc. R. R. Co. v. Vance, 93 
 
 128 Ind. 347, 25 Am. St. Rep. 436. Ala. 144, 30 Am. St, Rep. 41. 
 
 'Samuels v. Railway Co., 35 S. Car. «Spokane, etc. Truck Co. v. Hoefer, 
 
 493, 28 Am. St. Rep. 883. 2 Wash. 45, 26 Am. St. Rep. 842. 
 
§ 183 EXEMPLARY DAMAGES. 344 
 
 pensation for the injury as would follow from the nature 
 and character of the act. Actual damages in this case 
 would be compensation for such injuries as would fall 
 upon anj^ man who underwent the same treatment which 
 Mr. Ross is shown to hav^e undergone in this case. What 
 are those damages ? What are the elements? There is 
 the pain and suffering which any man would be supposed 
 —which the average citizen would be supposed — to suffer 
 under the circumstances. There is being shut up, — the 
 physical discomfort. There is the sense of shame, 
 mortification, wrong and outrage. All these matters 
 enter into the actual damages. 
 
 " You are to view Mr. Ross as you would any other 
 man in that regard. You are to be guided in that matter 
 by your common sense, because there is no other rule, — 
 there is no other way of getting at it. Your common 
 sense is to determine what naturally and inevitably 
 would be the suffering of the average citizen under 
 such circumstances; because the law will not allow your 
 feelings to be harrowed, will not allow you to be put 
 to shame and mortification. In the eye of the law, those 
 attributes of manhood, — which come from the better 
 quality of our nature, are matters which are not to be 
 trifled with, any more than a man's bones or his flesh. 
 All these things the law considers precious. All these 
 things the law considers subjects of injury, and for 
 injuries of this kind the law gives compensation. 
 
 "What would the average man naturally suffer, under 
 those circumstances, from this imprisonment, — from 
 what took place, — from what Mr. Ross was subjected to 
 that night? What the average man would suffer under 
 those circumstances would be the actual , damage. But 
 beyond actual damages, the law gives what are called 
 'added' damages. Those grow out of the wantonness or 
 atrocity, so to speak, of the act. Those are given where 
 an act is so wanton, so despotic, of so oppressive a char- 
 acter or where it entails such shame, such publicity upon 
 the party, as to have the effect of exciting his feelings 
 more than an act committed under less wanton, less 
 oppressive circumstances. In such cases the law says 
 the damages should be greater because the injury to the 
 feelings is greater. 
 
345 EXEMPLARY DAMAGES. 
 
 183 
 
 Now, IS that the case here? The actual damages 
 nothing can mitigate. That which a man has actually 
 suffered nothing can mitigate. But these, 'added' dani- 
 ages, as they are called, may be mitigated by all the 
 surroundings of the case. Is this a case for these added 
 damages,— these punitory, exemplary damages,— in addi- 
 tion to the actual damages? That is for you to deter- 
 mine. All the circumstances of the act are to be taken 
 into consideration. 
 
 " If 3^ou consider, under the explanation I have given 
 you, that this a case for these added, exemplary damages, 
 —these damages over and beyond the actual damages,— 
 then your next question will be, whether there is any- 
 thing to mitigate it; whether there was anything in the 
 conduct of Mr. Koss to excite Mr. Leggett to anger; 
 whether Mr. Leggett, under the circumstances, had a 
 right to be angry ; whether if angry, Mr. Ross' conduct 
 naturally provoked it ; whether Mr. Ross did anything 
 to bring the injury upon himself, in the respect that he 
 naturally excited, angered and provoked Mr. Leggett. 
 That is for you entirely. If you think the case is one 
 for these added or extra damages are there facts and cir- 
 cumstances which will mitigate and take from them? 
 But remember, gentleman, above all things : 1. You 
 are to follow the rule of law I have given you. 2. You 
 are to ascertain whether Mr. Leggett is responsible. 
 3. If he is responsible, j^ou are to give the actual 
 damages, no matter how small or how high. 4. You 
 are to ascertain whether the circumstances are such 
 as call for added, exemplary damages, and if so, what 
 they should be, whether they should be anything, 
 whether they should be mitigated by reason of any pro- 
 vocation, or whether they should be rendered to their 
 full extent." This charge was approved by the Supreme 
 Court. 
 
 It is not our purpose to discuss the many questions 
 relating to exemplary damages, but to ascertain when 
 and under what circumstances exemplary damages are 
 or are not allowable; and the questions bearing upon the 
 damages to be awarded where they are recoverable. 
 There is a class of cases where exemplary damages con- 
 stitute the principal ingredient in the assessment of dam- 
 
§ 184 EXEMPLARY DAMAGES. 346 
 
 a^es. This is so from the nature of the wrong done, and 
 because there is no justification for the injury inflicted. 
 
 § 184. Exemplary Damages Must be Proved. Nom- 
 inal Damages the Basis of Exemplary, Quere. In an 
 
 action to recover either actual or exemplary damages the 
 plaintiff must sustain the allegations by competent evi- 
 dence.' 
 
 Where there is no evidence given to authorize exem- 
 plary damages and none are claimed by the plaintiff, no 
 assessment of pecuniary damages can be awarded." 
 
 In eases where exemplary damages may be taken into 
 consideration by the jury in making up their verdict, the 
 proper expenses in a litigation to which the plaintiff has 
 been subjected in ordef to obtain redress for the wrong 
 done, may be considered.' 
 
 Where there is no evidence which would warrant a 
 verdict for other than compensatory damages, it is error 
 to leave a question of punitive damages to the jury.* 
 
 Where the proof shows that the plaintiff is only entitled 
 to recover nominal damages, there can be no recovery 
 for punitive damages or exemplary damages.^ 
 
 But in Alabama, etc., Rd. v. Sellers, 93 Ala. 9, 30 Am. 
 St. Rep. 17, it is held that exemplary damages 
 may be awarded, though the actual injury suffered was 
 nominal. In discussing this question the court said: 
 
 "There are respectable authorities which appear to 
 hold that exemplary damages cannot be awarded when 
 the actual injury is purely nominal; the theory being, 
 that as exemplary damages are laid in conservation of the 
 interests of society, which for this purpose are consid- 
 ered 'as blended with the interests of the individual,' 
 where the individual is injured only nominally, or not at 
 all in fact, though his rights are violated, 'the interests 
 of society have virtually nothing to blend with, 'and hence 
 'the individual having but a nominal interest, society can 
 have none,' etc. Stacy v. Portland Pub. Co., 68 Me. 287. 
 
 1 Houston & T. C. Rd. Co. v Baker, Taylor, 184 Pa. St. 306, 49 Am., St. 
 
 57 Tex. 419. Rep. 580. 
 
 ' Pa. Co. V. Frana, 112 111. 398. » Marshall v. Kennedy, 50 Wis. 645; 
 
 » New Orleans, J. & G. N. R. Co. v. Staley v. Portland Publishing Co., 68 
 
 Allbntton, 38 Miss. 342, 75 Am. Dec. Me. 279 ; Scheppee v. Norton, 38 Kan. 
 
 ®^. ^^^' , o , ^^' ! Kuhn V. Chic. etc. Railway Co., 
 
 ♦Pittsburg & Southern Rd. Co, v. 74 Iowa, 137. 
 
347 EXEMPLARY DAMAGES. ? 184 
 
 This view is specious, but, we apprehend, not sound. 
 The true theory of exemplary damages is that of punish- 
 ment, involving the ideas of retribution for willful mis- 
 conduct, and an example to deter from its repetition. 
 The position of the Supreme Court of Maine can be sus- 
 tained in principle, it seems to us. only by assuming that 
 which is manifestly untrue, namely, that no act is crimi- 
 nal which does not inflict individual injury capable of 
 being measured and compensated for in money. Many 
 acts denounced as crimes by our statutes, or by the com- 
 mon law, involve no pecuniary injury to the individual 
 against whom they are directed, and which, while the 
 party aggrieved could not recover damages as compensa- 
 tion beyond a merely nominal sum, are yet punished in 
 the criminal courts, and may also be punished in civil ac- 
 tions by the imposition of 'smart money;' and on the 
 same principle, acts readily conceivable which involve 
 malice, willfulness or wanton and reckless disregai'd of 
 the rights of others, though not within the calendar of 
 crimes, and inflicting no pecuniary loss or detriment 
 measureable by a money standard on the individual, yet 
 merit such punishment as the civil courts may inflict by 
 the imposition of exemplarv damages." Parker v. Mise, 
 27 Ala. 480; 62 Am. Dec. 776; Western Union Tel. Co. v. 
 Henderson, 89 Ala. 510; 1 Am. St. Rep. 148; Alabama, 
 etc., P. R. Co. V. Heddleston, 82 Ala. 218. See also 1 
 Sutherland on Damages, 748.' 
 
 Where the plaintiff is entitled to the recovery of puni- 
 tive or exemplary damages it is proper to give evidence 
 of pecuniary ability of the defendant.^ 
 
 Where the evidence shows that the plaintiff is entitled 
 to pecuniary or exemplary damages, the poverty or 
 wealth of the plaintiff is admissible for the reason that 
 a person of wealth is presumed to suffer greater damages 
 than a person in limited circumstances. Where the in- 
 jured party is engaged in a large business enterprise or 
 where the'plaintiff is a person of reputation and standing 
 in his profession, and earning a large salary or income 
 from his profession, such persons are entitled to recover 
 
 'In support of the Alabama case, Brooklyti Daily Eagle, 16 Misc. Rep. 
 see Wilson v. Vaughn, 23 Fed. Rep. N. Y (Supreme Ct.) 186; Flanagan v. 
 229- Press Pub. Co. v. Monroe, 73 Womack, 54 Tex. 45. 
 Fed. Re'p. 196; Atlanta etc, R. R. ^Louisville, C. & L. R. Co. v. Ma- 
 Co. .. Condor, 75 Ga 51 ; Prince v. honey, 7 Bush (Ky.) 235. 
 
§ 185 EXEMPLARY DAMAGES. 34» 
 
 greater pecuniary damages, for the reason that the injury 
 to the business or profession is greater than to a person 
 who depends upon his daily labor for hismeansof support/ 
 For like reason the condition and circumstances of the 
 defendant may become material and may be shown on the 
 trial of the case. What would be sufficient damages by 
 way of an example or punishment for a day laborer with- 
 out ^wealth, would be nothing by way of example or pun- 
 ishment to a wealthy corporation or individual/ 
 
 § 185. Exemplary Damages Must be Pleaded. It is 
 
 necessary for the plaintiff to claim in his petition or 
 declaration exemplary damages to entitle him to recover 
 therefor.^ 
 
 A wrong that sounds in exemplary damages is where 
 some right of person or property has been invaded wilh 
 malice, violence or wantoness or with reckless disregard 
 of social, civil obligations, and to recover such damages 
 plaintiff must allege the elements of such wrong and the 
 testimony must be confined to such allegations.* 
 
 Where actual and exemplary damages are claimed the 
 better practice is that they should be claimed by proper 
 allegations in the nature of distinct counts or different 
 causes of action.^ 
 
 When exemplary damages are claimed the petition 
 should set forth the acts and omissions which constitute 
 the fraud,, malice, gross negligence or oppression. Where 
 defendant is a corporation it should be alleged and proved 
 that the acts of the corporation servant which constitute 
 the fraud, gross negligence, malice or oppression were 
 committed by direction of the employer, or that the cor- 
 poration, through its proper agents, ratified and adopted 
 such acts as its own." 
 
 'New Orleans J. & Gr. N. R. Co. v. St. Rep. 354; lyouisville & N. R. Co, 
 
 Hurst, 36 Miss. 660 ; Pennsylvania R. v. Jones, 83 Ala. 376. 
 Co. V. Roy, 102 U. S. 451 ; Beckef v. 'Samuels v. Railroad Co., 35 S. Car. 
 
 Dowell, 40 Mo. App. 71; Morgan v. 493; 28 Am. St. Rep. 883; Sullivan v. 
 
 Durfee, 60 Mo. 469; 33 Am. Rep. 508; Oregon R. & N. Co., 12 Ore. 392; 21 
 
 Draper v. Baker, 61 Wis. 450 ; 50 Am. Am. & Eng. R. Cases, 391 ; see also 
 
 R^p. 143. Houston & T. C R. Co., 57 Tex. 493. 
 
 2 Bellman v. Railroad Co., 49 New 'Galveston, H. & S. A. Rd. Co. v. 
 
 Hf^Pslnre, 358. Le Gierse, 51 Tex. 189. 
 
 ' Spellman v. Railroad Co., 35 S. C. « l,- F. V. Rd. Co. v. Holland, 82 Ga. 
 
 475 ; 28 Am. St. Rep. 858 ; Ala. G. S. 257, 41 Am. & Eng. Rd. Cases, 196. 
 R. Co. V. Arnold, 84 Ala. 159 ; 5 Am 
 
349 EXEMPLARY DAMAGES. 
 
 186 
 
 While this allegation would be proper, still it is unnec- 
 essary, as the weight of authority is that a corporation 
 would be liable for the acts of its servants, whether au- 
 thorized or ratified, if the action should be such as to en- 
 title the plaintiff to exemplary daroages. 
 
 In an action for toi't for a wrong it is not necessary 
 that exemplary damages by that name should be claimed in 
 the declaration or petition. It is not enough that the 
 facts alleged and proved be such as to warrant the 
 assessment/ 
 
 Causes of action in tort sounding in damages, either 
 actual or exemplary, must be properly pleaded. The 
 petition oi- declaration must state the kind of damages 
 claimed. The jury must be restricted to the allega- 
 tions." 
 
 § 186. Proviuce of Jury. It is exclusively within the 
 province of the jury to determine the amount of exemplary 
 damages. It rests entirely in their discretion to say how 
 much damages shall be given by way of a punishment or 
 example for the wrong done to the plaintiif. Whenever 
 the jury in the exercise of this discretion acts in a reason- 
 ble and prudent manner, the verdict found by them will 
 not be disturbed. The court has no power to disturb any 
 such verdict, unless it is satisfied that the jury had been 
 influenced improperly and had acted from prejudice or 
 in a fraudulent manner in making up the verdict which 
 was rendered. 
 
 In their consideration the jury should determine: 
 
 First: The facts which have been shown and which 
 are necessary to constitute negligence. 
 
 Second: If the jury find that the defendant was negli- 
 gent, then they should consider the facts which make up 
 the amount of verdict for compensatory damages. 
 
 Third: The facts of evidence authorizing them to go 
 beyond compensatory damages. 
 
 ' L. F. V. R. Co. V. Holland, 82 Ga. his proof to establish such damages, 
 
 257, 41 Am. & Eng. R- Cases. 196. the verdict should be for the defend- 
 
 'Spellman v. Rich. & D. R. Co., 35 ant. Where the cause of action set 
 
 S. C. 475. The court is discussing up in the complaint is for actual 
 
 this question said: " Where a cause damages, the plaintiff is entitled to 
 
 of action set up in the complaint is recover nothing but actual damages. 
 
 for exemplary damages, such exem- A different view would defeat the ob- 
 
 plary damages and none other should ject of pleadings." 
 be awarded. If the plaintiff fails by 
 
186 
 
 EXEMPLARY DAMAGES. 350 
 
 tmirth: The amount of damages to be given for exem- 
 plary damages.' 
 
 The court may instruct the jury "that if they find 
 from the evidence that vindictive damages should be 
 given, they have a right to give such damages as the evi- 
 dence authorizes, not beyond the amount claimed in the 
 complaint. ' ' ^ 
 
 Whether the plaintiff is entitled to recover exemplary 
 damages rests largely in the discretion of the jury and 
 nature of the circumstances, and they should be left free 
 to 3xercise their judgment in this respect.^ 
 
 And it was held erroneous in this case to instruct 
 the jury that the plaintiff was entitled to exemplary 
 damages as a matter of right. 
 
 The discretion left to the jury in assessing damages is 
 not an arbitrary and unlimited one, but is to be guided by 
 sound legal principles, applicable to the case before them. 
 And it is a duty of the court to give them such instruc- 
 tions and directions as will enable them to consider the 
 proper points of inquiry and to reject irrelevant consider- 
 ations. The court therefore should charge the jury that 
 if the jury believe from the evidence that there was will- 
 full or wrongful act on the part of the defendant, or its 
 oflBcers, they can give exemplary damages.* 
 
 Whether the evidence tends to show any facts to war- 
 rant exemplary damages is a question for the court to 
 determine by its instructions, but the sufficiency of the 
 evidence to establish such facts is a matter for the jury 
 to consider and determine.* 
 
 The rule laid down in this case is following Ala. & B. 
 R. Co. V. Burnell, 59 Miss. 652. 
 
 The assessment of exemplary damages is always dis- 
 cretionary with the jury and an instruction which directs 
 or informs them that under any state of facts, it is their 
 duty to assess them is improper.' 
 
 1 Dawson v. Railroad Co., Ky. 11 'Chicago Railroad Co. v. Scurr, 
 
 Am. & Etig. Rd. Cases, 134. 59 Miss. 456, 42 Am. Rep. 733; 
 
 » Ala. & G. S. R. Co. v. Frazer. 97 Samuels v. Rich. & D. R. Co., 35 S. 
 
 Ala. 45. C. 493. 
 
 » Wabash, St. I,. & P. R. Co. v. Rec- «New Orleans & St. L. & C. R. Co. 
 
 tor, 104 111. 296. v. Burt, 59 Miss. 200. 
 
 *Varrilet v. Railway Co., 11 La. 
 Ann. 88. 
 
351 EXEMPLARY DAMAGES. § 187 
 
 The jury are vested exclusively with the power to 
 determine the amount of exemplary damages, and they 
 are authorized to find exemplary damages when they con- 
 sider the personal wrong and injury to be of such a char- 
 acter as in their judgment justifies or warrants the impo- 
 sition of exemplai'y damages.' 
 
 Where the circumstances are of such a character as to 
 have the effect of increasing or aggravating the damages, 
 the jury should not be left to determine the amount for 
 themselves, but such aggravating circumstances should 
 be pointed out by the court under proper instructions/ 
 
 It is error to leave the question of punitive damages to 
 the jury to give or withhold as they see flt.^ 
 
 § 187. The Amount Recoverable for Exemplary 
 
 Damages. The amount of damages which the plaintiff 
 is entitled to recover for exemplary or punitive damages 
 is peculiar and entirely within the discretion of the 
 jury.* 
 
 The amount of recovery for exemplary damages is 
 within the exclusive province of the jury, whether it is 
 regarded as wholly discretionary for them to allow any 
 damages by way of punishment or example.^ 
 
 There is no fixed standard of measurement of exem- 
 plary damages in the very nature of things as the amount 
 to be awarded and inflicted, as a punishment upon the 
 defendant must depend upon the peculiar circumstances 
 of each case. It has been held improper for the trial 
 court to indicate any amount for exemplary damages 
 which the jury might find." 
 
 1 Southern Rd. Co. v. Kendrich. 40 Co. v. Ballard, 85 Ky. 307 ; 7 Am. St. 
 
 Miss. 374 : Hart v. Charlotte, C. & Rep. 600 ; \Vebb v. Oilman, «0 Me. 
 
 A. R. Co., 33 S. Car. 427. 177 ; Ross v. Leggett, 61 Mich. 445, 1 
 
 'Parsonsv. Railway Co., 94 Mo. 286. Am. St. Rep. 608; Peck v. Small, 35 
 
 'Hyatt V. Railroad Co., 6 Hun. (N. Minnesota, 465; Pullman Palace Car 
 
 Y.), 306. Co. V. Lawrence, 74 Miss. 782; Can- 
 
 * Cooper V. Sun Printing, etc. Asso- field v. Chic, etc. R. Co., 59 Mo. App, 
 ciation, 57 Fed. Rep. 566 ; Seaboard ■ 354 ; Voltz v. Blackman, 64 N. Y. 440 
 
 Mfg. Co. V. Woodson 98 Ala. 383 ; Schneider v. Hoser, 21 Ohio St. 98 
 
 Ala. G. S. R. Co. v. Eraser, 93 Ala. 45, Furgeson v. Moore, 98 Tenn. 342 
 
 30 Am. St. Rep. 28; Mobile Furniture International, etc. Rd. Co. v. Tele 
 
 Commission Co. v. Little, 108 Ala 
 399; Foster v. Pitts, 63 Ark. 387 
 Diemus v. Hennessy, 62 111. App. 391 
 
 phone, etc. Co., 69 Tex. 277 ; Borland 
 V. Barrett, 76 Va. 128, 44 Am. Rep. 
 152 ; Rogers v. Henry, 32 Wis. 337 ; 
 
 Farwell v. Warren, 70111. 28 ; Collins Silver v. Dominion Telegraph Co., 14 
 
 V. Council Bluffs 32 Iowa, 432; Thill Nov& Scotia 76. 
 «. Pohlman,76 Iowa 638; Reisenstein * Fox v. Wunderlich, 64 Iowa 187. 
 
 V. Clark 104 Iowa 287 ; Titus V. Cork- "Lister v. Campbell, Tex. Civil 
 
 ins, 31 Kan. 732; Louisville & N. R. App. 46 S. W. Rep. 876. 
 
§ 188 EXEMPLARY DAMAGES. 352 
 
 In the case of New Orleans, etc. Rd. Co. v. Hurst, 36 
 Miss. 660, 74 Am. Dec. 785, the court said "that the 
 law in such cases furnish the jurors with no legal rule of 
 measurement save their discretion with reference to 
 the amount of the verdict for punitive damages. The 
 amount of recovery, however, is not within the arbitrary- 
 discretion of the jury. There should be the exercise of 
 a sound, conscientious and intelligent discretion in assess- 
 ing the amount of damages under the facts and circum- 
 stances as disclosed by the evidence." ' 
 
 In Burkett v. Lanata, 15 La. Ann. 337, the court said : 
 " Exemplary damages should nevertheless be commen- 
 surate to the nature of the offense, having due regard to 
 the standing of the parties ; when extravagant damages 
 are allowed they will be reduced to their proper stand- 
 ard." 
 
 In Jcnes v. Turpin, 6 Heisk (Tenn.) 181, it was held 
 error for the judge to charge the jury: " You may give 
 what is called vindictive damages, that is, such damages 
 as will satisfy the highly excited feelings of the party 
 injured." 
 
 § 188. Excessive and Inadequate Damages. It 
 
 may be laid down as a general rule that the verdict of 
 the jury in their allowance of exemplary damages will 
 not be disturbed as excessive or inadequate, unless it 
 •appears that the verdict considered under all the facts 
 and circumstances indicates passion, prejudice or cor- 
 ruption on the part of the jury.^ 
 
 It may be stated as a general rule that whenever a ver- 
 dict appears to the court to be largely in excess of the 
 sum which would include compensation to the plaintiff 
 for all his damages, those not susceptible of pecuniary 
 measurement, as well as those which may be so estimated 
 and a just punishment to the defendant, it should be set 
 aside.' 
 
 > Foster v. Pitts, 63 Ark. 387 ; Jones Am. Rep. 39 ; Goetz v. Amhs, 27 Mo. 
 
 V. Turpin, 6 Heisk " (Tenn.)" 181. 28 ; Kiflf v. Yoemans, 86 N. Y. 324, 40 
 
 ^Flanneryv.Railway Co.,4Mackey Am. Rep. 543; Goodal v. Thurman, 
 
 (D. C) 111; Bryan v. Acce, 27 1 Head (Tenn.) 209 ; Mayor v. Duke, 
 
 Georgia 87; Farwell v. Warren, 70 72 Tex. 445; Borland v. Barrett, 76 
 
 111. 28; Cutler v. Smith, 67 111. 252; Va. 128, 44 Am. Rep. 152; Rogers v. 
 
 Collins V. Council BIufiFs, .35 Iowa 432 ; Henry, 32 Wis. 337 
 
 ^Goddard v. Railway Co., 57 Me. 224, 2 » McCarthy v. Nisken, 22 Minn. 90. 
 
353 EXEMPLARY DAMAGES. ? 188 
 
 In Bump V. Belts, 23 Wend. (N. Y.) 85, where an action 
 is brought for damages for maliciously suing out of an 
 attachment of a judgment already paid, the court refused 
 to set aside the verdict as excessive because it was said: 
 "It is impossible for us to pronounce that they are so 
 dispi'oportionate as under the circumstances of the ease 
 to indicate corruption or unreasonable passion in the 
 jury. That the jury should have been somewhat dis- 
 turbed with indignation by the view which we thought 
 they had a right to take in this matter is highly proper ; 
 a consequence which the defendant could hardly escape 
 were we to send the case down in order to be tried." 
 
 The verdict will be disturbed when the jury have 
 assessed exemplary damages where the evidence fails to 
 show any one of the necessary elements to entitle plain- 
 tiff to a recovery of such damages.' 
 
 It is not sufficient that the amount of damages as 
 assessed by the jury in the verdict returned by them is 
 greater or less than in the opinion of the court should 
 have been given, or than the judge would have assented 
 to if he had been sitting as a jury." 
 
 It may, however, be stated as a general rule that the 
 verdict of the jury should be set aside to prevent injus- 
 tice.' 
 
 Or if it appears that there has been abuse of the dis- 
 cretion on the part of the jury.' 
 
 In cases calling for exemplary damages, only such an 
 amount can be recovered as will fairly compensate the 
 party entitled to them. "Smart Money" in addition to 
 this can not be recovered by way of punishment for the 
 wrong done.^ 
 
 Exemplary damages may be given in actions where the 
 evidence shows fraud, malice or insult." 
 
 When a jury is called on for exemplary damages any 
 evidence disclosing the motives and designs of the de- 
 fendant to show whether he acted mistakenly from a 
 worthy motive is admissible.' 
 
 ilsenheart V. Ordean,3 Colo. App. 'Stuyvesant v. Wilcox, 92 Mich. 
 
 Xg2 233, 31 Am. St. Rep. 580. 
 
 2 Silver v. Dominion Co., 14 Nova « Roberts v. Mason, 10 Ohio St. 
 
 Scotia 19 277. 
 
 ' McCarthy v. Nisken, 22 Minn. 90. ' Simpson v. McCaffrey, 13 Ohio 
 
 • Schneider v. Hoser, 21 Ohio St. 508, 522, 
 98. 
 
 23 
 
fi 189-191 EXEMPLARY DAMAGES. 354 
 
 The fact that the defendant has already been punished 
 criminally cannot be shown to mitigate damages.^ 
 
 The jury cannot be allowed to assess punitive damages 
 against a mortgagee for "acting from a wanton and 
 malignant spirit and with a corrupt and wicked design y 
 in the absence of evidence thereof, and where the peti- 
 tion does not charge such spirit or design.^ 
 
 § 189. Counsel Fees. In an action to recover dam- 
 ages for a tort involving the ingredients of fraud, malice 
 or insult, the jury may give punitive damages and may, 
 in estimating compensatory damages, include reasonable 
 fees for counsel employed by the plaintiff ; but this right 
 depends upon the presence of the ingredients named, 
 inasmuch as punitive damages and counsel fees are not 
 allowed in ordinary actions for tort or negligence/ 
 
 § 190. Legislatures. The legislature of a state may 
 fix the amount of damages beyond compensation to be 
 awarded to a party injured by gross negligence of a railroad 
 company to provide suitable fences and guards for its road 
 or to prescribe the limit within which the jury in assess- 
 ing damages may exercise their discretion. The addi- 
 tional damages are by way of punishment to the company 
 for its negligence, and it is not a valid objection that the 
 sufferer, instead of the state, receives them. Mo. Pac. 
 R. Co. V. Haines, 115 U. S. 512. 
 
 § 191. Corporations Liable for Exemplary Damages. 
 
 Exemplary damages may now be given whether the wil- 
 ful and malicious acts of the agent were authorized or 
 ratified by the principal or not, in contravention of the 
 old rule, requiring such authority or ratification to ren- 
 der the principal liable.* 
 
 1 Roberts v. Mason, 10 Ohio St. ehicago, etc., Rd. Co. v. Bryan, 90 111. 
 
 277. 126 ; Evans v. Railway Co., 11 Mo. 
 
 "Edmundson v. Pollock, 3 O. C. App. 463; Quinn v. Railway Co., 29 
 
 92 5 O. C. C. R. 185. S. Car. 381, 1 L. R. A. 682 ; Palmer v. 
 
 ■"Carr v. Traction Co., 10 O. C. D. Railway Co., 3 S. Car. 583; State v. 
 
 296 ; Ashtabula Rapid Transit Co. v. Railway Co., 23 N. J. h. 369 • Fell v. 
 
 Stephenson, 12 O. C. D. 631. Railway Co., 44 Fed. Rep 248 ; Jeffer- 
 
 * Haley V. Railway Co., 7 Baxt. 239 ; son Co. Sav. Bk. v. Eborn, 84 Ala. 
 
 New Orleans, etc., Rd. Co. v. Bailey, 529 ; Seaboard Mfg. Co. v. Woodson, 
 
 40 Miss. 395; Gassaway v. Railway 98 Ala. 378; Lake Shore & M. S. Ry. 
 
 Co., 58Ga. 216; Pittsburgh, etc., Rd. Co. v. Rosenweig, 113 Pa. St. 535; 
 
 • Co. V. Slusser, 19 Ohio St. 157 ; Quig- Louisville & N. Ky. Co. v. Ballard, 85 
 
 ley V. Railway Co., 11 Nev. 350 ; Ky. 307, 7 Am. St. Rep. 600. 
 
355 EXEMPI^ARY DAMAGES. § 191 
 
 In Kutner v. Fargo, 20 Misc. Rep. (N. Y.), the court 
 said : " The decisions in this country upon the question 
 of the liability of a corporation in exemplary damages for 
 the wilful or malicious acts of its agents are divided into 
 three classes. One holds the corporations never liable ; 
 another holds the corporations liable if the wrongful act 
 was within the scope of his authority ; a third recognizes 
 the liability if the wrongful act was within the scope of 
 the employment and was previously authorized and subse- 
 quent ratified by the corporation. The New York deci- 
 sions and those of the United States Supreme Court seem 
 to incline to third class." 
 
 The rule has been otherwise expressed that a corpora- 
 tion is liable for exemplary damages for the tortious acts of 
 its agents acting within the scope of their authority in all 
 cases where natural persons acting for themselves who 
 were guilty of like wrongful acts would be liable to such 
 damages.' 
 
 But it is held by some courts that there must be an 
 express authority proceeding from the managing officer 
 of the corporation, or that there must be a ratification of 
 the wrongful act of the agent, or that the wrongful act 
 was that of the officers, in order to hold a corporation lia- 
 ble for exemplary damages.^ 
 
 Mr. Thompson, on Carriers of Passengers, says: "The 
 rule which is in accord with reason and the weight of 
 authority is that passenger carriers, although corpora- 
 tions may be liable in a proper case, in exemplary dam- 
 ages for injuries to passengers carried by their agents, 
 without direct authorization or subsequent ratification of 
 the act complained of. " 
 
 The rule down by Sutherland on Damages is : " If a cor- 
 poration like a railroad company is guilty of an act or 
 default, such as in the case of an individual would subject 
 him to exemplary damages, they would be equally liable 
 to such damages. And when the servants of a corpora- 
 tion, engaged in the carriage of passengers are guilty of 
 such acts or conduct in the performance of their duties, 
 
 1 Goddard v. Railw .y Co., 57 Me. Railway Co., 56 N. Y. 44, 15 Am. Rep. 
 202, 2 Am. Rep. 39; Atl., etc., Rd. Co. 375; Sullivan v. Railway Co., 12 Ore. 
 V. Dunn, 19 Ohio St. 162. 392, 53 Am. Rep. 364 ; Hagan v. Rail- 
 
 2 Lake Shore & M. S Ry. Co. v. way Co., 3 R. I. 91, 62 Am. Dec. 377 ; 
 Prentice, 147 U. S. 107; Turner v. Downey v. Railway Co., 28 W. Va. 
 Railway Co. 34 Cal. 594 ; Cleghorn v. 732. 
 
§ 191 EXEMPLARY DAMAGES. 356 
 
 in the transportation of the injured party as a passenger, 
 as would subject them to damages of this nature, the cor- 
 poration is also liable to punitive damages without proof 
 that they directed or ratified such acts or conduct. As a 
 corporation can only act through natural persons, its 
 ofiBcers and servants, and as it of necessity commits its 
 trains and vehicles absolutely to the charge of persons, of 
 their own appointment, the passengers of necessity com- 
 mit to them their safety and comfort in transit and the 
 whole power and authority pro hac vice are vested in such 
 employes, and as to such passengers they are the corpor- 
 ation " 
 
 In Lake Shore & M. S. Ry. Co. v. Rosenweig, 113 Pa. St. 
 519, 6 Atl. Rep. 545, the court said: " If there was no wilful 
 misconduct by the conductor, how can it be said that he 
 was not recklessly indifferent to the consequences likely 
 to befall the plaintiff ? If the suit were against him, there 
 could be little question that the jury would be permitted 
 to give exemplary damages. The liability of railway and 
 other corporations for exemplary darnages for gross neg- 
 ligence is well settled. The general rule in cases for 
 negligence is that only compensatory damages can be 
 given. Juries are not at liberty to go further than com- 
 pensation, unless the injury was done willfully, or was the 
 result of that reckless indifference to the rights of others 
 which is equivalent to a violation of them. There must 
 be wilful misconduct, or that entire want of care which 
 would raise a presumption of conscious indifference to 
 consequences.^ 
 
 "The corporation is liable for exemplary damages for 
 the acts of its servant, done within the scope of his 
 authority, under circumstances which would give such 
 rights to the plaintiff, as against the servant, where the 
 suit is against him instead of the corporation." This 
 rule was. approved in Philadelphia Traction Co. v. Orbaun, 
 12 Atl. Rep. 816. 
 
 Reckless Conduct. Exemplary damages may be im- 
 posed on the lessor of a railroad because of the reckless 
 conduct of servants of the lessee in the management of a 
 train, by reason of which a passenger received personal 
 injuries.^ 
 
 1 Railway Co. v. Arms, 91 U. S. 489. ^ Hart v. Charlotte, C. & A. R. Co., 
 
 33 S. Car. 427, 10 L. R. A. 794. 
 
357 EXEMPLARY DAMAGES. § 192 
 
 Distvirbance of the Peace of the Community. 
 
 Where a corporation in vindication of alleged rights, 
 instead of applying to judicial tribunals by its controlling 
 officers has wantonlj"- disturbed the peace of the com- 
 munity and endangered the lives of the citizens, it may 
 be liable for punitive damages for personal injuries 
 caused thereby/ 
 
 Carried Beyond Station. Insulting Language. A 
 
 woman carried by a railroad train beyond her station, at 
 which the railroad refused to put her off and to whom 
 they were indecorous or insulting, either in words, tone 
 or manner may be allowed to recover punitive damages.^ 
 To same effect, Lake Shore & M. S. Ry. Co. v. Rosen- 
 weig, 113 Pa. St. 519, 6 Atl. Rep. 545. 
 
 Gross Negligence. Where it appears that the cross 
 ties under the track where a train was derailed by a 
 broken rail were unsound and rotten, and that the rail 
 which broke was old, and that the company constantly 
 repaired the track with old rails, such facts indicate such 
 gross negligence as to authorize a verdict for exemplary 
 damages.' 
 
 Refusal to Sell Ticket. Exemplary or vindictive 
 damages may be given for the refusal to sell a ticket or 
 to check the baggage of a passenger to a regular station 
 of a passenger train, in pursuance of an unreasonable 
 regulation of the company which indicates a wanton 
 disregard of therights of passengers.' 
 
 Disregard of Statutory Duty to Stop Train. Puni- 
 tive damages are recoverable of a railroad company for 
 disregard of its statutory duty to stop at a station for a 
 passenger when it has advertised for passengers for that 
 train and had room for them or could by reasonable dili- 
 gence have had cars to accommodate them.^ 
 
 § 192. Jurisdictions where Corporations Held not 
 Liable. The master can be held only for actual damages 
 from a wrongful act of his servant unless he participated 
 or approved of the wrong." 
 
 1 Denver & R. G. R. Co. v. Harris, 'Pittsburgh, C. & St. L. R. Co. v. 
 
 122 U. S. 597. Lyon, 123 Pa. St. 140, 2 L. R. A. 489. 
 
 2 Louisville & N. Ry. Co. v.Ballard, ° Purcell v. Richmond & D. R. Co., 
 
 88 Ky. 159, 2 L. R. A, 694. 108 N. Car. 414, 12 L. R. A. 113. 
 
 'Alabama G. S. R. Co. v. Hill, 90 ^Stafles v. Schmid, 18 R. 1, 19 L. 
 
 Ala. 71, 9 L. R. A. 442. R. A. 824. 
 
2 193 EXEMPI/ARY DAMAGES. 358 
 
 A railroad company cannot be made responsible for 
 exemplary datnages on account of injuries done by one of 
 its servants, even though the act was wanton and mali- 
 cious, unless the act was expressly or impliedly author- 
 ized or ratified by the company.' 
 
 Exemplary damages cannot be recovered against a car- 
 rier for the malicious act of the conductor of a train to 
 the injury of a passenger, which has not been ratified or 
 adopted, if there was no carelessness in the selection of 
 the employes or in the establishment of regulations; or, 
 in short, if the carrier or its officers by whom it is con- 
 trolled, have not been guilty of any malice, gross negli- 
 g'ence or oppression.^ 
 
 Ejjectioii of Passenger. Only compensatory damages 
 can be recovered for ejecting a passenger without unrea- 
 sonable force, if it is done in good faith, pursuant to 
 rules, and upon due notice to him.^ 
 
 Cutting off a Sleeper. Exemplary damages cannot 
 be allowed for mere negligence in cutting off a sleeper 
 from a train wherebj^ a passenger with a sick child is 
 left, while the baggage goes with the train . * 
 
 Ratification Necessary. Punitive or vindictive 
 damages or smart money are not to be allowed as against 
 the principal, unless the principal participated in the act 
 of the agent expressly or impliedly by his conduct au- 
 thorizing it or approving it, either before or after it was 
 committed.^ 
 
 § 193. Actions in wliich Exemplary Damages are 
 Hecoverable. Assault and Battery. Punitive dam- 
 ages may be awarded in a civil action for assault and bat- 
 tery where the blow was struck with ill-will and under 
 circumstances of insult." 
 
 Provocation does not necessarily defeat exemplary 
 damages for an assault by a conductor on a passenger, 
 but the conduct of both may be considered by the jury.' 
 
 ^ol^i*^^*"*^'^"^^^y^°'^^^-'^^- * Lake Shore & M. S. Ry. Co. v. 
 
 ■^^V-,,- ,' ^' ^*- Prentice, 147 U. S. 101 ; Robin- 
 
 ^■, ?T ?.ST'^o7- A'ltliony. 73 Tex. son v. Superior Rapid Transit 
 
 1 1- ■S' ■. ^ Co., 94 Wis. 345, 34 L. R. A. 205. 
 
 "Pine V Railway Co., 50 Minn. 144, « Hendrick v. Fowler, 9 O. C. D. 209, 
 
 16 L. R. A. 347. 16 O C C R 597 
 
 'Norfolk & W. R. Co v. Lipscomb, ' Baltimore & 6. Rd. Co. v. Barger, 
 
 90 Va., 137 20 L. R. A. 807. 80 Md. 23, 26 L. R. A. 220. 
 
359 EXEMPLARY DAMAGES. ? 193 
 
 In determining the liability of a person for an assault, 
 the character and standing of the parties involved may- 
 be considered.' 
 
 Breach of Promise to Marry. Damage in case of breach 
 of promise of marriage, done with bad motives, may be 
 given, not flagrantly excessive, as will show disapprobation 
 and deter others. If the defendant's conduct was ruthless 
 and unjustifiable and he had tried to destroy plaintiff's 
 character, and to have tempted her into compromising 
 situations, $9,800 is not too large. 
 
 A failure to prove charges of unchaste conduct may be 
 taken as an aggravation, unless made with reasonable 
 expectation of success.^ 
 
 In Chellis v. Chapman, 125 N. Y. 214, 11 L. R. A. 784, 
 the court held: 
 
 Exemplary damage may be awarded for breach of 
 promise of marriage where, after the wedding day was 
 agreed upon and the usual preparations made and the 
 relatives and guests bidden to the ceremony, defendant 
 failed to appear, shamming illness as an excuse, and the 
 plaintiff had resigned a situation for the purpose of mar- 
 rying him, and furthermore defendant in his pleading 
 charges her with having no affection for him, but with 
 entertaining a purpose to procure money from him on the 
 pretense of his promise to marry her and his breach 
 thereof. 
 
 A charge in an action for breach of promise of mar- 
 riage that plaintiff is entitled at least to such damages as 
 would place her in as good a pecuniary condition as she 
 would have been if the contract had been fulfilled, 
 although a careless use of the language, is not ground for 
 reversal where the jury could not have failed to under- 
 stand from the whole charge that they were to compen- 
 sate plaintiff for what she had lost and was deprived of 
 by failure of the marriage. 
 
 In discussing the case the court said: 
 
 "But we think in such a case, that it is the province 
 of the jury to determine upon the proof of the facts and 
 of the surrounding circumstances what damages should 
 
 1 Goldsmith v. Joy, 61 Vt. 488, 4 L. ^ Duvall v. Fuhrman, 2 O. C. D. 174, 
 
 R. A. 600. 3 O. C. C. R. 306. 
 
§ 193 EXEMPLARY DAMAGES. 360 
 
 be awarded. If the conduct of the defendant in violat- 
 ing his promise is characterized by a disregard of the 
 plaintiff's feelings or reputation ; if he has placed her or 
 induced her to place herself in a false position, or to 
 forego temporal advantages; if the breach of his promise 
 is unjustifiable; if he spreads upon the records matters 
 in defense of the action which are scandalous, and tend 
 to reflect discredit upon the plaintiff, or to stain her rep- 
 utation, — then these are all circumstances which may be 
 considered by the jury, and may be availed of by them to 
 enhance the damages. Here the trial judge did not say 
 in his charge that this was a case for the infliction of 
 punitive damages. He instructed the jury, in substance, 
 that if the plaintiff was entitled to damages they should 
 certainly give compensatory damages, and that, in the 
 exercise of a discretion based on the proofs and circum- 
 stances of the case, they might award exemplary or puni- 
 tive damages. It is clear that he left it to them to arrive 
 at a decision upon the propriety of giving exemplary 
 damages from a consideration of the defendant's motives 
 and conduct. Now, there was evidence in the case upon 
 which a verdict might well include exemplary damages. 
 The wedding day was agreed upon, the usual prepara- 
 tions were made by the plaintiff, and relatives and guests 
 were bidden to the ceremony. But the defendant did not 
 appear. He alleged physical ailments in excuse of not 
 fulfilling his marital engagement, but there was evidence 
 that he was evading it, and shamming illness. He admits 
 that he had no fault to find with her. She had resigned 
 her position to marry him. He denies requesting her to 
 do so; but his attempt at denial is weakened by his sub- 
 sequent admission that he expected her to do it. Then, in 
 his pleading, he charges the plaintiff with having no affec- 
 tion for him, but with entertaining a purpose to procure 
 money from him on pretense of his promise to marry her, 
 and his breach thereof. These were elements in the case 
 which might properly enter into the decision of the jury 
 as to the amount of damages." 
 
 Alienation of Husband's Aiiection. In an action by a 
 husband for alienating his wife's affections, the jury has 
 a right to give what are called exemplary or punitive 
 damages in such sum as may be deemed a punishment 
 
361 EXEMPLARY DAMAGES. § 193 
 
 for defendant's conduct and which will be an example 
 from deterring others from like conduct.^ 
 
 Fraudulent Marriage. Exemplary damages are re- 
 coverable for fraud in inducing a man to marry a woman 
 who is pregnant by another.^ 
 
 Wrongful Eviction from Train. Exemplary damages 
 may be recovered by a passenger for an eviction which 
 was malicious as well as wrongful.' 
 
 A passenger may be awarded punitive damages against 
 a railroad company for the wanton and malicious conduct 
 of the conductor, partially ratified by the company, in 
 dragging him in the presence of a car full of ladies and 
 gentlemen, in the aisle preparatory to ejecting him from 
 the train, on the unfounded pretense that he was not the 
 owner of a mileage book presented to the conductor.* 
 
 Selling Intoxicating Liquor. When a defendant who 
 has notice of an action against him, by the plaintiff, who 
 claims to have been injured in her means of support by 
 unlawful sales by him of intoxicating liquors to her hus- 
 band shows a wanton disregard of her rights by con- 
 tinuing to debauch her husband, by selling him intoxi- 
 cating liquors after such notice, proof of such fact may 
 be given to enhance exemplary damages/ 
 
 Seduction. Punitive damages are allowable in case 
 of seduction.* 
 
 Libel. A second publication is competent to show 
 malice. Withdrawal by leave of a plea of justification 
 after it had been on file for over a year will not destroy 
 its competency as a publication tending to show malice.'^ 
 
 In an action against a newspaper for publishing a libel- 
 lous article received by it from a news agency the jury 
 are properly instructed that if they think that the 
 defendant was guilty of reprehensible negligence in 
 publishing the article without verification of its truth, 
 then punitive damages may be given.* 
 
 ' Meyers V. Reynolds, 5 O. Dec. 619, 'Miller' v. Gleason, 10 O. C D. aO ; 
 
 3 O. N. P. 186. Kear v. Garrison, 7 O. C. D. 575, 13 
 
 SKujek V. Goldman, 150 N. Y. 176, O. C. C. R. 447. 
 
 341,. R. A. 156. « Lawyer v. Fritcher, 130 N. Y. 239, 
 
 'Ellsworth V. Railway Co., 95 Iowa, 14 L. R. A. 700. 
 
 98, 29 L. R. A. 173; Rose v. Railway ' Alliance Review Pub. Co. v. Valen- 
 
 Co., 106 N. Car. 168; Goddardv. Rail- tine, 6 O. C. D. 323, 9 O. C. C. R. 387. 
 
 way Co., 57 Me. 202. ^Smith v. Sun Printing Assn., 55 
 
 *P. C. C. & St. L. Rd. Co. V. Ensign, Fed. Rep. 240, 5 C. C. A. 91 . 
 6 O. C. D. 616, 10 O. C. C. R. 21. 
 
? 193 EXEMPLARY DAMAGES. 362 
 
 Where it appears that an agent as a reporter wrote the 
 libel and the employer — a newspaper corporation — was 
 not negligent in employing him, and had no reason to 
 know it to be false, such fact will not exempt it from 
 punitive damages/ 
 
 Failure to make any effort to verify the accuracy of a 
 libellous dispatch before printing it in a newspaper may 
 be found by the jury to constitute such reckless and 
 wanton disregard of the rights of others as to sustain a 
 verdict for punitive damages.^ 
 
 Exemplary damages may be allowed for wantonly pub- 
 lishing a libel without inquiry or justifiable motive." 
 
 Unlawful Arrest. One hundred and fifty dollars is 
 not excessive where the plaintiff was under arrest three 
 days on a humiliating charge which is still persisted in, 
 but found to be wholly unsupported.* 
 
 In Fotheringham v. Adams Express Co., 1. L. R. A. 474, 
 an action was brought to recover damages for false impri- 
 sonment. The defendantlost $60,000 and charged the plain- 
 tiff, who was an employe, with having stolen it. The 
 plaintiff was constantly guarded bj'' detectives for two 
 weeks so that he was not at any time free to come and 
 go as he pleased. His movements were at all times sub- 
 ject to the control and direction of those who had him in 
 charge, who frequently urged him to make a confession 
 of his guilt. 
 
 The plaintiff at the end of the two weeks was arrested 
 at the instigation of the defendant and on the trial he 
 was acquitted. 
 
 The plaintiff recovered a judgment of $20,000 damages 
 for false imprisonment and the question was raised that 
 the damages were excessive. The Court on motion for a 
 new trial reduced the verdict to 812,000. The court held 
 that the plaintiff was entitled to recover punitive dam- 
 ages, and in discussing the question, whether damages 
 were excessive, said. 
 
 ■^ " It is urged that, in the matter of depriving the plain- 
 tiff of his liberty without warrant, the defendant acted 
 without malice, and that the jury have substantially so 
 
 >Commercial Gazette Co. v.Grooms, ' Morning Journal Assn. v. Ruther- 
 
 21 Bull. 292. ford, 51 Fed. Rep. 513,16 L. R. A. 803. 
 
 'Press Pub. Co. v. McDonald, 63 *Trundell v. Combs, 33 Ohio St 
 
 Fed. Rep. 238, 26 L. R. A. 531. 186, 195. 
 
363 EXEMPLARY DAMAGES. ? 193 
 
 found by finding in defendant's favor on the counts for 
 malicious prosecution. With reference to this conten- 
 tion it is only necessary to say that the rig'ht of the jury 
 to assess punitive damages in this class of cases does 
 not necessarily depend upon the existence of malice, 
 using that term in its ordinary sense. Punitive damages 
 may be awarded when a wrongful act is done willfully, in a 
 wanton or oppressive manner, or even when it is done 
 recklessly — that is to say, in open disregard of one's 
 civil obligations and of the rights of others. The 
 cases on the subject show that in the matter of assess- 
 ing damages for a false imprisonment, or for an assault 
 or trespass, it is the duty of the jury to consider, not 
 only all the circumstances of aggravation of the wrongful 
 act, but in some measure, at least, the nature of the 
 right that has been invaded, and the effect upon social 
 order of permitting a wrongdoer to escape without sub- 
 stantial punishment in case of a flagrant violation of the 
 law and the rights of others. Huckle v. Money, 2 Wils. 
 205; Beardmore v. Carrington, lb. 244 ; Merest v. 
 Harvey, 5 Taunt. 442 ; Conrad v. Pacific Ins. Co. 31 
 U. S. (6 Pet. ) 268 (8 L. ed. 394) ; Day v. Woodworth, 54 
 U. S. (13 How.) 363 (14 L. ed. 181) ; Volts v. Blackmar, 64 
 JSr. Y. 440; Drohn v. Brewer, 77 111. 280; Sherman v. 
 Dutch, 16 111. 283 ; McBride v. McLaughlin, 5 Watts, 
 375 ; Baltimore & T. Turnp. Co. v. Boone, 45 Md. 344 ; 
 McWilliams v. Bragg, 3 Wis. 424 ; Green v. Craig, 47 
 Mo. 90. 
 
 "I have no doubt that it was within the discretion of 
 the jury in the present case to assess substantial dam- 
 ages as a punishment of the wrongdoer, and to deter 
 others from committing like offenses. The plaintiff was 
 taken into custody, originally, without a warrant, and 
 was detained without even color of legal process for such 
 an unreasonable period that the wrong cannot be ex- 
 cused, under our system of government, by the plea that 
 such arbitrary measures were necessary to discover the 
 perpetrators of a great crime. Moreover, the jury 
 probably found as they may well have done that the 
 evidence disclosed some circumstances of oppression on 
 the 'part of the defendant's agents in the transaction and 
 a disposition on their part to override time honored laws 
 intended to protect persons from arbitrary arrests and 
 
U 194 195 EXEMPLARY DAMAGES. 364- 
 
 imprisonment, as well as a reckless disregard of plain- 
 tiff's rights as a citizen. All of these considerations 
 evidently had weight with the jury, and induced them ta 
 award exemplary damages." 
 
 §194. Mxinieipal Corporations. In actions against 
 municipal corporations, exemplary damages cannot be 
 awarded. In Elliott on Roads and Streets, he says : "The 
 inhabitants of a locality constituting as they do, the cor- 
 poration {i. e., the municipal corporation) really pay the 
 damages, and where punishment in the form of exemplary 
 damages is inflicted, it falls on them, and this is neither 
 just or consistent with the imderlying principle, which 
 sustains the rule declaring that vindictive damages may 
 be recovered.'" 
 
 § 195. Damages for Causing Death. In some of the 
 states statutes have been passed by which exemplary 
 damages for causing the death of a party may be awarded 
 by the jury. 
 
 Alabama. Code 188tj, 6258. "Such damages as the 
 jury may assess include punitive damages." " 
 
 Arizona. When death is caused by the wilful act or 
 omission, or gross negligence of the defendant, exem- 
 plary as well as actual damages may be recovered Stat- 
 ute 1887, Sec. 2147. 
 
 California. Under original act of California, exem- 
 plary damages were allowed. Myers v. San Francisco, 
 42 Cal. 215 ; but not now under the present statute. 
 Lange v. Schoettler, 115 Cal. 388. 
 
 Kentucky. If life is lost by "wilful neglect" exem- 
 plary damages are recoverable. Gen . Stat. , Ch. 57, Sec. 3. 
 Person killed in a duel, jury may give exemplary dam- 
 ages against principal and seconds. Gen. Stat., Ch. 32, 
 See 1. Louisville & N. Ry. Co. v. Brooks, 83 Ky. 129. 
 
 Michigan. Stats. 1883, No. 191. Largelare v. Kirch- 
 gessner, 73 Mich. 276. 
 
 1 City ofParsons V.Lindsay, 26 Kan. ^Richmond.etc.Rd Co.v. Freeman 
 
 426, 4a4; City of Chicago v. Kelly, 69 97 Ala. 289. It is held otherwise un- 
 
 111. 475, ; Barbour County v. Horn, 48 der the employes' liability act. James 
 
 Ala. 577; Bennett v. Marion (Iowa), v. Richmond, etc., Rd. Co., 92 Ala 
 
 71 N. W. Rep. 36Q ; Chicago v. Lang- 231 ; Louisville & N. Ry. Co. v. Orr. 91 
 
 lass, 52 111. 256. Ala 548. 
 
365 EXEMPLARY DAMAGES. § 196 
 
 Missouri. Stats. 1889, Sec. 4427. Gray v. McDonald, 
 104 Mo. 303. 
 
 Nevada. Jury may award "exemplary and pecuniary. " 
 Gen. Stats., 1885, Sec. 3889. 
 
 New Mexico. The jury may award damages "com- 
 pensatory and exemplary." Comp. Laws, 1884, as 
 amended 1891. Ch. 49, Sec. 2310. 
 
 Texas. Const. 1876, Art. 16, Sec. 26, provides that if 
 a homicide be committed " through wilful act, omission 
 or neglect," exemplary damages may be awarded. Sayles 
 Civil Stats., Art. 2901.' 
 
 Washington. The jury may award "such damages, 
 pecuniary or exemplary as under all the circumstances of 
 the case may seem just." Hill's Ann. Stat, and Code, 
 1891, Sec. 138." 
 
 But where there is no statute with reference to this 
 subject, punitive, vindictive or exemplary damages can- 
 not be given by the jury. ' 
 
 Tiffany death by wrongful act. Sec. 155. 
 
 In Connecticut and Tennessee the jury may assess 
 exemplary damages in the absence of statutory pro- 
 vision.* 
 
 In Virginia by statute the jury "may award such dam- 
 ages as to it may seem fair and just."* 
 
 § 196. Damages Should be Proportionate. In an 
 
 action where exemplary damages are recoverable, in 
 Texas, it is held that such exemplary damages should 
 be proportionate in some degree to the actual damages 
 sustained. 
 
 In Railway Co. v. Telephone Co., 69 Tex. 277, the jury 
 awarded actual damages in the sum of $200 and $10,000 as 
 exemplary damages. 
 
 In discussing this question the court said : "It is diffi- 
 cult to lay down any rule by which to test the question of 
 
 'International, etc., Rd. Co. v. Mc- ♦Kansas City, etc., Rd. Co. Daugh- 
 
 Donald, 75 Tex. 41. try, 88 Tenn. 721, Haley v. Railway 
 
 ^Klepsch V. Donald, 4 Wash. St. Co., 7 Baxt. (Tenn.) 239; Murphy v. 
 
 436. Railway Co., 29 Conn. 496. 
 
 ' Lange V. Schoettler, 115 Cal. .388; ^CoAe, 1887, Sec. 2903, Matthews v. 
 
 Penn., etc., Rd. Co. v. Books, 57 Fa. Warner, 29 Gratt. 570. 
 St. 339 ; Cleveland, etc. Rd. Co. v. 
 Rowan, 66 Pa. St. 393. 
 
i 197 EXEMPLARY DAMAGES. 368 
 
 excess in a verdict for vindictive damage. Thej?^ are 
 very largely in the discretion of the jury. But it is said^ 
 in the case of Railroad Co. v. Nichols, Austin term, 
 1882: Exemplary damages, when allowed, should be in 
 proportion to the actual damages sustained. This lan- 
 guage was quoted with approbation, and the rule acted 
 upon in Willis & Brother v. McNeill, 54 Tex. 465. In both 
 cases cited, the verdict was held excessive. In the 
 former, the proportion of actual damages to exemplary 
 was as one to four, and in the latter approximately as 
 one to twelve. In the case before us, the proportion is 
 as one to fifty. There is nothing in the evidence to make 
 this case an exceptional case for exemplary damages." 
 
 But it may well be questioned whether this rule is cor- 
 rect, for there are many actions where the entire dam- 
 ages consist mainly in exemplary damages and the com- 
 pensatory are merely nominal. There certainly cannot be 
 any arbitrary rule of proportion by which to determine 
 the amount of exemplary damages. 
 
 § 197. Remission of Actual Damages. The remis- 
 sion of actual damages before entry of judgment by one 
 who has recovered a verdict for actual and exemplary 
 damages deprives the court of power to render judgment 
 for exemplary damages. Smith v. Dye, Tex. Civ. App. 
 51 S. W. Rep. 858. 
 
367 
 
 DAMAGES FOR DEATH BY WRONGFUL ACT. 
 
 §198 
 
 CHAPTER XXI. 
 
 DAMAGES FOR DEATH BY WRONGFUL ACT. 
 
 Sec. 
 
 198. Common Law Rule. 
 
 199. Remedy Dependent on Locus. 
 
 200. Damages Mean Pecuniary Loss" 
 
 201. Who are Beneficiaries. 
 
 202. Survival of Right of Benefici- 
 aries. 
 
 203. Pecuniary Loss. Measure of 
 Damages, 
 
 204. Measure of Damages Generally- 
 
 205. Elements of Damages. 
 
 206. General Rules for Measuring 
 Damages. 
 
 207. No Fixed Rules. 
 
 208. Prospective Damages. 
 
 209. Death of Husband and Par- 
 ent. 
 
 210. Death of Wife. 
 
 211. Death of Child. 
 
 212. Damages for Mental SuflFering, 
 Exception. 
 
 213. Damages to Collatered Heirs. 
 
 214. Solatium for Wounded Feel- 
 ings. 
 
 215. Nominal Damages. 
 
 Sec. 
 
 216. Physical and Mental SuflFering 
 of Deceased. 
 
 217. Proof of Physical Pain and 
 SuflFering. 
 
 218. Medical Expenses. 
 
 219. Funeral Expenses. 
 
 220. Interest on Damages. 
 
 221 . Limitation of Amount Recover- 
 able. 
 
 22'i. Joinder of Causes of Actions. 
 
 223. Statute of Limitations. 
 
 224. Law of Distribution. 
 
 225. Proceedings in Admiralty, when 
 not Maintainable. 
 
 226. Proceedings in Admiralty, when 
 Maintainable. 
 
 227. Verdicts for Death of Minors. 
 
 228. Verdicts for Death of Adults. 
 
 229. Damages for Surviving Husband 
 or Wife. 
 
 230. Damages, when Excessive. 
 
 231. Damages, Death of Next of Kin. 
 
 232. Inadequate Damages. 
 
 233. SuflFering of Deceased. 
 
 § 198. Common Tuaw Rule. When a person received 
 an injury by reason of the negligence of the party 
 causing it, which would sustain a cause of action for 
 damages, and death followed as the result thereof, the 
 right of action was personal to such injured person and 
 at the common law did not survive his death. ' 
 
 Even if such injured party had survived the injury 
 and could have sustained and recovered a judgment for 
 the damages received, in case of his death, there was no 
 
 1 Insurance Co. v. Braine, 95 U.S. 
 754 ; Western, etc. Rd. Co. v. Strong, 
 52 Ga. 461 ; Penn. etc. Rd. Co. v. 
 Adams, 55 Pa. St. 499 ; Eden v. Lex- 
 ington, etc. Rd. Co. 14 B. Mon. (Ky.) 
 165; Wyatt v. Williams, 43 N- H. 102; 
 Whitford v. Panama, etc. Rd. Co., 23 
 
 N. Y. 465 ; State v. Grand Trunk Ry. 
 Co., 58 Me. 176 ; 4 Am. R. 258 ; State 
 V. Manchester, etc. Rd. Co., 52 N. H. 
 528; Hyatt v. Adams, 16 Mich. 180; 
 Conn. Mut. L. Ins. Co. v. N. Y. & N. 
 H. Rd. Co., 25 Conn. 265. 
 
? 198 DAMAGES FOR DKATH BY WRONGFUL ACT. 368 
 
 remedy to his next of kin. There was no survival of the 
 cause of action, however dependent his next of kin might 
 have been upon such injured person, or however wrongful 
 or negligent the party producing the injury might have 
 been or however able to respond in damages therefor. 
 
 The reason for the rule at the common law was that 
 all actions for tort were personal and abated with the 
 death of the person. Actio personalis moritur cum 
 persona. 
 
 Even though such action had been commenced and 
 death occurred during the pendency thereof, the action 
 abated and did not survive to the next of kin of such 
 deceased person.^ 
 
 But this rigid and inflexible rule of the common law 
 has been supplanted by statutes enacted not only in all 
 the states of the United States, but even in England and 
 some of her colonies. In England the statute was passed 
 in 1846, commonly known as Lord Campbell's Act.^ 
 
 This act provided: "Whensoever the death of a person 
 shall be caused by wrongful act, neglect, or default, and 
 the act, neglect, or default is such as would (if death 
 had not ensued) have entitled the party injured, to main- 
 tain and recover damages \n respect thereof, then, and in 
 every such case the person who would have been liable if 
 death had not ensued, shall be liable to an action for 
 damages, notwithstanding the death of the person injured, 
 and although the death shall have been caused under 
 such circumstances as amount in law to felony." 
 
 The statute was amended in respect to the parties by 
 whom and for whose benefit an action might be brought. 
 L. 1847, Ch. 450. 
 
 This act has become the model from which similar acts 
 have been copied and adopted in this country. 
 
 The earliest statute in this country providing for a 
 remedy for negligence causing death of which there is 
 any record was passed by Massachusetts in 1666.' 
 
 A comparison of the various statutes of the states 
 shows only a slight modification of Lord Campbell's act. 
 
 1 Whitford v. Panama/etc. Rd. Co., 29 g^^ jq yict. C. 93. 
 
 28N Y. 465; Cregin v. Brooklyn, etc. 'Colonial laws, Mass. (Reprint of 
 
 Rd. Co., 75 N. Y. 192. edition of 1666), 1889, p. 126. 
 
369 DAMAGES FOR DEATH BY WRONGFUL ACT. ? 199 
 
 For a full collection and complete copy of these statutes 
 see Tiffany's work on "Death by Wrongful Act.'" 
 
 These acts provide in substance that an action may be 
 brought and enforced when the person injured could 
 have maintained an action, had he lived; and that the 
 damages shall be confined to the pecuniary loss or injury 
 sustained by those who are next of kin or dependent 
 upon such deceased party. 
 
 Most of the statutes designate the parties who shall re- 
 ceive the damages which may be recovered and by whom 
 the action may be brought: These acts generally direct 
 that the action shall be brought by the personal represen- 
 tative of the estate of the deceased person, meaning 
 the administrator. 
 
 If no person is named in the act the damages recover- 
 able are distributed to his next of kin as provided by law. 
 But in some states the damages go to the husband or 
 wife, father or mother, as the next of kin." 
 
 Bodily Pain of Decedent, not Recoverable. These 
 statutes do not include the elemeiita of damages personal 
 to every injured person and known as "the bodily pain 
 and mental suffering" endured from the time of injury to 
 the time of death, however severe and painful. Within a 
 few years there have been passed in two or three states 
 statutes which authorize the personal representative to 
 bring suit and recover damages for bodily pain and mental 
 suffering.^ 
 
 Such damages under these statutes belong to and be- 
 come a part of the estate of the deceased person. 
 
 § 199. Remedy Dependent Upon Locus. Whether 
 any action may be brought for negligently causing death 
 depends upon the fact of the existence of a statute or stat- 
 utes in the state where the accident or injury occurred. 
 If there is no statute then there is no remedy; the form 
 of action also depends upon this statute in the state 
 where the action may be brought.* 
 
 1 Appendix Tiffany "Death by < Wooden v. Railway Co., 126 N. Y. 
 Wrongful Acts," pp. 231, 344. 10; 26 N. E. 1050; 13 L. R. A. 458; 
 
 2 Pennsylvania, etc., Rd. Co. v. Kel- Leonard v. Steam Navigation Co., 84 
 ler, 67 Pa. St. 300; Davis v. Guar N. Y. 53; Usher v Railway Co., 126 
 nieri, 45 Ohio St. 470. Pa. St. 206 ; 4 L. R. A. 261. 
 
 2 Hurst v. Railway Co., 84 Mich. 
 539 ; 2 How. Stat. 7397. 
 
 24 
 
200 DAMAGES FOR DEATH BY WRONGFUL ACT. 370 
 
 The locus or law of place determines the kind and right 
 of action. This is the rule although both the injured and 
 offending parties live in and are citizens of another state 
 where a remedy is pro^vided, given and enforced/ 
 
 § 200. Damages Recoverable is Pecuniary Loss. 
 For Whose Benefit. The statutes generally designate 
 by whom the action shall be brought and for whose 
 benefit. 
 
 Whenever a death results from an accident and an in- 
 jury, the law presumes a pecuniary loss if there be a 
 cause of action.^ 
 
 But some one must sustain pecuniary loss by reason of 
 the death; otherwise no recovery can be had as held by 
 the weight of authority.^ 
 
 The amount should be a just compensation for the 
 pecuniary injury or loss resulting to the beneficiary 
 from such death.* 
 
 There must be proof that the deceased rendered assist- 
 ance or aid to the beneficiary or that such beneficiary had 
 reasonable expectation of such service or assistance/* 
 
 This proof must show the circumstances of the de- 
 ceased, nis condition in life, earning capacity and power 
 and age, etc. 
 
 The test of the pecuniary loss is the benefit which the 
 deceased had been to the beneficiary or next of kin, who 
 naturally looked to or were dependent upon him for care, 
 
 1 Usher v. Railway Co., supra. Kan. 1 ; Steel v. Kurtz, supra ; Halter 
 
 2 Steel V. Kurtz, 28 Ohio St. 191; v. Daly, 106 111. 131; B. & O. Rd. 
 Davis V. Guarnieri, 45 Ohio St. 470; Co. v. State, 63 Md. 135; Chicago v. 
 Stafford V. Rubens, 115 111.196; 3 N. O'Keeie, 14 111. 22; Hudson v. Houser, 
 E. Rep.568;Louisville4etc.,Rd.Co v., 123 lud. 309; Howard v. Canal Co., 
 Buck, 116 Ind. 566; 9 Am. St. 883; 40 Fed. Rep. 195 ; Mclntyre v. Railway 
 Louisville, etc., Rd. Co. v. Goody- Co., H9 N. Y. 289; Skottowe v. Rail- 
 Koontz, 119 Ind. Ill ; 12 Am. St. Rep. way Co., 22 Ore. 430; 30 Pac. Rep. 222. 
 383; Hudson v. Houser, 123 Ind. 307. *Pordyce v McCants, i«^ra ; Penn. 
 
 3 Van Brunt v. Cincinnati, J. & M. Railway Co. v. Brooks, 57 Pa. St. 
 Rd. Co., 78 Mich. 530; Morgan v. 339; Staal v. Railway Co., l07 N. Y. 
 Railway Co., 9i Cal. 510; 17 L. R. A. 625, 13 N. E. 624; Hogue v. Railway 
 71 ; Pordyce v. McCants, 51 Ark. 509; Co., 32 Fed Rep 365; Atkyn v. Rail- 
 14 Am. St. Rep. 69; 4 L. R. A. 296 ; way Co., 41 Fed. Rep. 193 ; Cherokee & 
 Howard V. Canal Co., 40 Fed. Rep. 195; P. C. & M. Co. v. Limb, 47 Kan. 469 ; 
 6L. R. A. 75; Hurst v. Railway Co., Richmond v. Railway Co., 87 Mich. 
 84 Mich. 539. 374; County of Howard v. Legg, 110 
 
 * Ladd V. Fo-^ter, 31 Fed. Rep. 827; Ind. 479 ; 11 N. E. 612. 
 Union Pacific Rd. Co. v. Dundee, 37 
 
37 1 DAMAGES FOB DEATH BY WRONGFUL ACT. § 200 
 
 support, aid or assistance. Such benefit is the loss or 
 damages resulting- from his death. ^ 
 
 The amount differs as to whether the beneficiary is a 
 husband, wife, child or parent, and different rules apply 
 to each case.^ 
 
 This pecuniary loss may be limited wholly to future 
 prospective earnings. They are held to mean pecuniary 
 loss as dontemplated by these several statutes.^ 
 
 Whatever they might be depends upon each case. 
 This rule is fully recognized in Illinois and Ohio.* 
 
 In Colorado it is not necessary that the plaintiff should 
 be dependent upon the decedent for support to entitle 
 him to a recover}-.^ 
 
 Skill or capacity in the management of any business or 
 industry constitute elements of damages within the mean- 
 ing of pecuniary loss.' 
 
 Under the act requiring, "compensation for causing 
 death by wrongful act, negiect or default," etc., persons 
 who bad no legal claim for support upon the deceased, 
 may, as next of kin, maintain an action to recover the com- 
 pensation allowed by the statute. In such cases, in deter- 
 mining the pecuniary injury resulting from the death, the 
 reasonable expectation of what the next of kin might have 
 received from the deceased, had he lived, is a proper sub- 
 ject for the consideration of the jury.' 
 
 In arriving at the total amount of damages in such 
 cases, the jury should consider the pecuniary injury to 
 each separate beneficiary, not found guilty of contributory 
 negligence, but the verdict should be for the gross sum, 
 not exceeding the amount fixed by statute.' 
 
 1 Howard V. Canal Co., 40 Fed. Rep. himh, supra; McAldery v. Railway 
 
 195 ; Phelps v. Winona, etc. Rd. Co., 37 Co., 10 So Rep. 507; Chicago v. Keefe, 
 
 Minn. 485; Munro v. Railway Co., 95 114 111. 222. 
 
 Cal. olO; 18 Am. St. 256; ClifiFord v. All- ^ Authorities. Note ' Sufira. 
 
 men,84Cal. 527; Sorenson v. Railway 'Brennan v. Motley, Gibson, M. & 
 
 Co., 45 Fed. Rep. 407; Grogen v. M. Co., 44 Fed. Rep. 795. 
 
 Metal Co., 87 Mo. 321. «Skottowe v. Railway Co., 22 Ore. 
 
 ^Richmond V. RailwayCo,87 Mich. 430; 30 Pac. 222; Cincinnati, H. &. D. 
 
 374 ; 49 N. W. Rep. 621. Railway Co. v. Chester. 57 Ind. 297. 
 
 - ^Tomlinson v. Derbey, 43 Conn. ' Grotenkemper v. Harris, 25 O. S. 
 
 563 ; Perry v. Banking Co., 85 Ga. 193 ; 510. 
 
 11 S. E. 605; Davis v. Guarnieri, » -^gif y Rajj^jyay Co., 55 O. S. 517. 
 supra; Cherokee, P. C. & M. Co. v. 
 
ii 201-202 DAMAGES FOR DEATH BY WRONGFUL ACT. 372 
 
 The administrator holds the fund when recovered in 
 trust for the beneficiaries and not for the estate.^ 
 
 The amount of damages, within the limit of the statute, 
 are to be ascertained by the jury from the evidence in the 
 case, and are to be a fair and just compensation to the 
 widow or next of kin, with reference to the pecumary in- 
 ■oury resulting to the beneficiary from such death. 
 
 The jury in assessing damages are limited to giving 
 pecuniary compensation for injuries resulting to the bene- 
 ficiaries in the action on account of the death of the de- 
 ceased, where the action is brought for such benefici- 
 aries.^ 
 
 § 201. Who are Next of Kin or Beneficiaries? The 
 
 statutes of the several states providing for and creating 
 a liability for negligently causing death specify the par- 
 ties who shall be entitled to receive the amount which 
 may b.e recovered. In some states these parties are 
 those who take under the general law of distribution. 
 Mr. Tiffany in his work has added an appendix giving 
 these several statutes in full.' 
 
 Any survivor or survivors of the person named in 
 these statutes may bring this action.* 
 
 It is necessary that there should exist beneficiaries 
 who may be entitled to the benefit, otherwise there is no 
 ■cause of action.^ 
 
 The wife and husband' are included and named as the 
 next of kin in many states by the statutes."- 
 
 A posthumous child is entitled to his share of the ben- 
 efit.' 
 
 IBut not an illegitimate.* 
 
 § 202. Survival of Riglit of Beneficiary. The rule 
 of the common law was that if there was but one bene- 
 
 iWolf V. Railway Co., 55 O. S. 517; ties cited; Hegeiiet v. Keddie, 99 N. 
 
 Merrell v. McMahon, 7 Dec. 138; Y. 258. 
 
 Steel V. Kurtz, 28 O S. 191. « Steel v. Kurtz, 28 Ohio St. 191. 
 
 ^Steel V. Kurtz, 28 O. S. 191, Contra-: Warren v. Englehart, 13 Neb. 
 
 ^ Pages 281, 346 383. 
 
 ^McMahon v. City of N. Y., 33 N. 'Nelson v. Railway Co., 78 Tex. 621, 
 
 Y. 642; Haggerty v. Railway Co., 31 14 S. W. Rep. 1021. 
 
 ^■6i'"'^:-^*^oA ^.^ , 'Dickinson V. Railway Co., 33 L.J. 
 
 'Section 80; Tiffany and authori- Ex.91. 
 
373 DAMAGES FOR DKATH BY WRONGFUL ACT. ? 203 
 
 ficiary, and he or she should die before any action was 
 brought and judg-ment obtained, the cause of action 
 abated.^ 
 
 But where there were several beneficiaries and one of 
 them died, it was recognized generally that the survivor 
 took the whole, although the question has not been fully 
 decided.'' 
 
 In some states statutes have been passed by which the 
 action survives when there is only one beneficiary and 
 death occurs/ 
 
 § 203. Pecuniary Loss the Sole Measure of Dam- 
 ages. The damages for death caused by negligence is 
 the pecuniary loss sustained by the parties for whose 
 benefit a cause of action is given by the statute.* 
 
 Under the Illinois statute expenses paid and incurred 
 for medical attendance, care and nursing or otherwise, 
 in the effort to effect a cure, the damages for the agony 
 and pain suffered by the injured party, the loss of earn- 
 ings while sick or the disability of the injury cannot be 
 considered by the jury in awarding the amount of dam- 
 ages. 
 
 The sole measure of damages is the pecuniary loss to' 
 the widow and next of kin, caused by the destruction of 
 the life of deceased.^ 
 
 In Michigan, under Howell's Statutes, Sees. 3391, 3392 
 (Railroad Act), the damages which are recoverable are 
 confined and limited to the pecuniary injury sustained by 
 the persons entitled to share in the distribution of the 
 personal property, pursuant to the statute existing at the 
 time of the death of the intestate." 
 
 The amount of the damage which the jury may deem a 
 fair and reasonable compensation to the next of kin for 
 
 1 Woodward v. Railroad Co., 23 Wis. * Maney v. Railroad Co , 49 111. App. 
 
 400. 105. 
 
 ^Taylorv. Railroad Co., 45 Cal. 323; « Van Brunt v. Railroad Co., 78 
 
 Wescott V. Railroad Co , 61 Vt. 438. Mich. 530; 44 N. W. Rep. 321 ; Hurst 
 
 'Indiana Rev. St., Sec. 282; Geor- v. Railway Co., 84 Mich. 539, 48 N. W. 
 
 gia Texas, Pennsylvania. Ohio. Rep. 44; Charlebois v. Railroad Co., 
 
 ^Caldwell v. Brown. 53 Pa. St. 453; 91 Mich. 59; Richmond v. Railroad. 
 
 Gaither v. Railroad Co., 27 Fed. Rep Co , 87 Mich. 374. 
 544. 
 
§ 203 DAMAGES FOR DEATH BY WRONGFUL ACT. 374 
 
 the pecuniary loss sustained by them, must be estab- 
 lished by evidence/ 
 
 The parties entitled to recover must have sustained a 
 pecuniary loss or injury by the death of the person. 
 There can be no recovery without some pecuniary Joss. 
 The principle upon which damages are recoverable, in 
 case of a negligent or wrongful death, is compensation 
 for such pecuniary loss or injury. Some statutes make 
 such pecuniary damages dependent upon a " pecuniary " 
 loss. But pecuniary in its original signification is too 
 narrow and limited to embrace all the damages which the 
 beneficiaries or next of kin may be entitled to recover. 
 
 In an action for damages in causing death by negli- 
 gence in Utah it is held that the law allows nothing more 
 than the pecuniary loss, as shown by the proof, and meas- 
 ured by pecuniary standard. Trie extent of the loss 
 should not be measured by the wealth or poverty of the 
 recipient or giver, but by his earnings, care, health, bene- 
 ficent and pecuniary contributions, given, or in reason- 
 able expectation of being given, to the widow and chil- 
 dren as shown by the proof and judged from all the cir- 
 cumstances of the case to be just ; but measured by a 
 pecuniary standard. 
 
 Where deceased was thirty-eight years old, in good 
 health, earning fifty dollars per month which he contrib- 
 uted to his wife and spven children, $10,000 was held to 
 be a proper judgment.^ 
 
 The true measure of damages is the pecuniary loss 
 suffered, without any solatmm for mental grief or suffer- 
 ing; and the pecuniary loss is what the deceased would 
 probably have earned by his labor, physical or intellec- 
 tual, in his business or profession, if the injury that 
 caused death had not befallen him, and which would have 
 gone to the support of his family. In fixing this amount, 
 consideration should be given to the age of the deceased, 
 his health, his ability and disposition to labor, his habits 
 of living and his expenditures.' 
 
 1 Anderson v. Railway Co., 35 Neb. 8 McHugh v. Schlosser \h°i Pa St 
 95, 52 N. W. Rep. 840; Huutitigtou 480, 39 Am. St. Rep. 699, citing: Penn 
 & B. T. R. etc. Co. v. Decker, 84 Pa. Railway Co. v. But'.er, 57 Pa St 335- 
 St. 419; Conant v. Griffen, 48111. 410; Lehigh Iron Co v. Rupp, 100 Pa St' 
 March V. Wa'ker, 48 Tex. X72. 95 ; Mansfield Coal Co. v. McEnery 
 
 2 English V. Railway Co., 13 Utah 91 Pa. St. 185, 36 Am. Rep. 662 
 
 407, 35 L. R. A. 155. On trial for causing death of plain- 
 
375 . DAMAGES FOR DEATH BY WRONGFUL ACT. ? 204 
 
 Substantial damages may be recovered for an instan- 
 taneous death caused by wrongful act, under a statute 
 providing that all causes of action for injuries to the per- 
 son of a decedent, whether the same do or do not instan- 
 taneously or otherwise result in death, shall survive to 
 executor or administrator.' 
 
 § 20i. The Measvire of Damages Generally. Under 
 an Illinois statute when a personal representative sues 
 for the benefit of the father, brothers and sisters of the 
 deceased person, it is proper to show that the latter con- 
 tributed a portion of his earnings to the support and 
 education of his younger brothers, and upon such evi- 
 dence more than nominal damages are recoverable.'^ 
 
 The measure of damages is the value of the decedent's 
 power to earn mone}-. Where death results instantly 
 from an injur}- occasioned by the ordinary negligence of 
 a railroad company, the jury is limited in its inquiry to 
 this value of the decedent's abiUty to earn money. It 
 would be error to charge the jury upon evidence of 
 simple negligence that they may "give such damages as 
 the}- deem just and proper, by way of compensation, not 
 exceeding the amount claimed in the petition.'" 
 
 The plaintiff is entitled to recover the damages suf- 
 fered by the loss of the support, care and maintenance of 
 the widow and infant minor children, and any prospective 
 accumulation of property.* 
 
 tiff's intestate, where deceased's wife In an action for the death of a per- 
 
 testified that he was industrious and son caused by the wrongful act of the 
 
 careful in his business, she could defendant, the basis of recovery is 
 
 testify as to how much of a farm he the proof of pecuniary damage, and 
 
 had aad as to what property he had not the proof of the death, caused by 
 
 at the time of his death which had the wrongful or negligent act of the 
 
 been accumulated since his marriage. defendant, Klefsch v. Donald, 4 
 
 See, McKelvy v. Railway Co., Iowa, 58 Wash. 436, 31 Am. St. Rep. 936. 
 
 N. W. Rep. 1068. iBroughel v. Southern N. Eng. 
 
 In estimating damages the jury Telephone Co., 72 Conn. 617, 49 L. R. 
 
 must take into consideration the age A. 404. 
 
 of deceased, the probability of the ^j^Uinois & St. L. R. Co. v. Whalen, 
 
 extent of his life, his wages, per.sonHl 19 111. App. 116. 
 
 habits, disposition, and capacity to ^Louisville, C. & L. Co. v. Case, 9 
 
 labor, make and save money, and the Bush (Ky.) 728; Givens v. Railroad 
 
 probability that if he had lived he Co., 89 Ky. 231, 12 S. W. Rep. 267. 
 
 would have been of some pecuniary *Lake Erie & W. Rd. Co. v. Mugg, 
 
 benefit to his sister and two brothers. 132 Ind. 168, 31 N. E. Rep. 564. 
 Serensen v. Railway Co., 45 Fed. Rep. 
 407. 
 
Jtf 205-206 DAMAGES FOR DEATH BY WRONGFUL ACT. 376 
 
 § 205. Elements of Damages. Where death follows 
 as the result of the injury caused by negligence, and 
 pecuniary loss is sustained by the next of kin, the stat- 
 ute has set no limit to the elements thereof. They may 
 be such as arise from the loss of personal care, intellec- 
 tual culture and moral education which they would have 
 received from the deceased had he lived.' 
 
 The ordinary grounds of damages are the expense of 
 board, nursing, medical aid, compensation for loss of 
 time, physical and mental pain, embracing such sum as 
 the jury think should be given for anxiety and distress 
 of mind, in view of approaching death, during the time 
 that the injured person is suffering, in immediate danger 
 of death, until the close of life.^ 
 
 § 206. General Rules for Measuring Damages. 
 
 Where an action is brought by an administrator to re- 
 cover damages for injuries caused by negligence and 
 resulting in death of the injured person, the -jury, in 
 estimating and awarding the damages, should take evi- 
 dence, and applying to it the experience and knowledge 
 acquired and possessed by men in common, reach a con- 
 clusion which would be just between the parties." 
 
 Under the statute in this class of actions, the general 
 health and intelligence, habits and capacity, physical an^ 
 mental, industry and ability to earn and acquire prop- 
 erty, age and sex of the injured pei'son are all to be 
 taken into consideration in estimating and awarding the 
 damages. These facts would mean and include ability 
 and skill to conduct and manage a business and the 
 association of capital in such a way that it would be a . 
 source of benefit and profit, and without loss to those 
 interested in it.* 
 
 The reasonable expectancy of the life of the deceased 
 as shown by the evidence of a physician and by mortality 
 tables, is proper evidence for consideration by the jury 
 in assessing damages.^ But in considering a fair com- 
 
 Mclntyrev. Railroad Co, 37 N.Y. ^Kansas Pac. R. Co. v. Miller 2 
 
 287 ; Tilley v. Railroad Co., 29 N. Y. Colo. 442. 
 
 53; Little Rook & Ft. S. Railroad ^ Skottowe v. Oregon, etc., Rail- 
 Co. V. Barber, 39 Ark. 491 ; Kansas road Co., 22 Ore. 430, 16. L. R. A b9.i. 
 Pacific Railroad Co. v. Cutter, 19 'o'Mellia v. Railway Co., 115 Mo. 
 ^J"- S?.- 205; Scheffler v. Railway Co., 32 
 
 2 Corliss V. Railroad Co., 63 N. H. Minn. 518. 
 404. 
 
377 DAMAGES FOR DEATH BY WRONGFUL ACT. J 207 
 
 pensation the jury are not bound to estimate the damages 
 according to the value of the deceased's life calculated 
 by the mortality table/ 
 
 The jury in estimating damages should consider not 
 only the degree of relationship which the intestate 
 bore to his kindred, but his condition of life at the time 
 of his death and the reasonable expectancy such kindred 
 might have had of pecuniary aid and help from him, if he 
 had lived. '^ 
 
 There is no fixed and certain rule for measuring the 
 value of a life. Age, habits, health, ability, industry, 
 business capacity to make money by labor, furnish facts 
 from which such value may be ascertained by a jury. 
 Mortality tables and the probable worth of a life may be 
 helpful, but they are not conclusive or absolutely neces- 
 sary for that purpose." 
 
 The deceased's ability to furnish care and attention to 
 his familj" and the probable diminution of that ability in 
 the futui-e, are proper to be considered.* 
 
 It is proper to charge a jury that they are not to take 
 into consideration the physical pain suffered by the de- 
 ceased or the wounded feelings o' the surviving relatives, 
 but may consider the relations between them and the 
 next of kin, the agg-regateof his property, the character 
 of his business and the prospective increase or decrease 
 of wealth, whifh it is likely would accrue to a man of his 
 age, with the business and ability which he possessed.'^ 
 
 § 207. Jjainages. Measure of. No Mathematical 
 
 or Fixed Rule. In estimating the damages resulting 
 from the loss of the life of a human being, the jury 
 should be instructed to consider what amount the deced- 
 ent was able to earn and was earning at and before his 
 death, and to decide what he would have earned during 
 the expectancy of his life from the time of his death, and 
 then allow such a sum as will reasonably compensate the 
 widow for the loss. 
 
 1 Rowley V. Railroad Co., 29 L. T. » Savannah, F. & W. R. Co. v. 
 188 ; L. R. 8 Ex. 221 ; Armsworth v. Stewart, 71 Ga. 4.7 ; Hogue v. Rail- 
 Railway Co., 11 Jur. 758. way Co., 32 Fed. Rep 365. 
 
 "Gross V Railway Co., 1 C. S. C. ^ Chattanooga R. & C. R. Co. v. 
 
 (Ohio) 264; Johnston v. Railroad Co , Clowdis, 90 Ga 258, 17 S. E. Rep. 88. 
 
 7 O S. 336; Pym v Railway Co., 4 * Kansas Pac. R. Co. v. Cutter, 19 
 
 B & S. 396. Kan. 83. 
 
? 208 DAMAGES FOR DEATH BY WRONGFUL ACT. 378 
 
 The assessment of damages of this character does not 
 admit of fixed rules and mathematical precision, and 
 should be left to the sound discretion of the jury after 
 the court has pointed out the elements proper to be 
 considered/ 
 
 Although there is no evidence which affords any oppor- 
 tunity for an exact computation of the amount to be 
 awarded, the true and fair basis is, what would it cost to 
 purchase an annuity? In other words, what sum in gross 
 would enable the part3' investing the money and apply- 
 ing the interest and enough of the principal together, 
 during the period of the expectancy of the deceased, to 
 equal the amount which would have been received from 
 year to year for support and maintenance/ 
 
 § 208. Prospective Damages. In common law actions 
 to recover damages for a personal injury, the old rule has 
 been accepted and followed, that the recovery was limited 
 to such damages as the plaintiff showed he had sustained 
 up to the time that the action was coriimenced. But such 
 rule does not apply in actions where death follows from 
 the injuries 
 
 In actions for negligently causing the death of a per- 
 son, all the damages to which beneficiaries are entitled 
 by reason of the wrongful death may be recovered in one 
 action/ 
 
 In arriving at the amount of damages to be awarded, 
 the jury may consider any prospective loss which they 
 believe will result to the beneficfaries as a natural conse- 
 quence of the negligent killing.* 
 
 In the case of Tilley v. Railroad Co. , 29 N. Y. 252, 
 it was held proper to instruct the jury that while 
 they must assess the damages with reference to the pe- 
 cuniary injury sustained by the next of kin, by reason of 
 death, they were not limited to the loss actually sustained 
 at the precise date of death, but might include all pro- 
 spective losses, provided they had a reasonable belief and 
 
 .o' 1^^'' o".^!"- ^^^^''^' ^^ ■^^"°- ^^^ : ^'°< 32 W. Va. 370 ; Chicago, etc., R. 
 
 42 Am St. Rep. H08. R Co. v Swett, 45 in. 197 
 
 ''Brockway v Patterson, 72 Mich. *B. & O R R Co v State '?'? 
 
 122. 130 40 N. W Rep. 192. Marylatid,"542; lea^le v" llTa^ll 
 
 ■* Williams V. Walton, 9 Housten Rd. Co.. 32 W. Va. 370; Birkett v. 
 
 <Uelaware), 323; hearle v. Railway Knickerbocker Ice Co., 110 N. Y. 504. 
 
379 DAMAGES FOR DEATH BY WRONGFUL ACT. J 209 
 
 certainty from the evidence that such damages would 
 actually follow and result as a proximate cause of the 
 death to the beneficiaries. 
 
 § 209. Death of Husband and Parent. Where the 
 death of the husband follows as a result of the injury, 
 leavino- a wife and children, the pecuniary loss which 
 such wife sustains and which such minor children also 
 sustain, necessarily includes the loss of the support 
 which the father or husband owed to such wife or chil- 
 dren, or both. The measure of damages in such case is 
 the amount which such decedent would probably have 
 earned during his life for. the benefit of such wife and 
 children. To ascertain this, it is necessary for the jury 
 to consider the age, ability, industry, character and 
 habits of living and the personal expenses of the deceased 
 husband. They may also add the amount which he prob- 
 ably would have accumulated during the expectancy of 
 his life and which they might reasonably expect they 
 would inherit. The amount which he may earn and 
 which will contribute to their support and maintenance 
 may include either intellectual or physical labor or 
 both, according- to the business, trade or profession of 
 such decedent.^ 
 
 Where an action is brought by a representative for the 
 widow and children, the damages to the widow should be 
 estimated upon the expectancy of the life of the husband, 
 and for the children during their minority.^ 
 
 In Minnesota it has been held that the pecuniary value 
 of the head of the family cannot be restricted to the ex- 
 tent of his wages which he would have earned towards 
 the support and maintenance of his family, but also may 
 include his daily services, care and attention on their 
 behalf.-^ 
 
 'Penn. R. R. Co. V. Batler, 57 Penn. Savannah, etc., R. R. Co. v. Flanni- 
 
 State 335; Hudson v. Houser, 123 gan, 82 Ga. 579 ; Illinois Centrssl R. 
 
 Ind. 309; Harkins v. C«r Co., 52 Fed. Co. v. Weldon, 52 III. 290; Mclntyre 
 
 Rep. 724 ; Louisville, etc R. R. Co. v. v. Railway Co , 37 N. Y. 287. 
 
 Trammell, 93 Ala, 350; 111. Cent. R. ^B. & R. T. R. Co. v. State, 71 Md. 
 
 R. Co. V. Baches, 55 111.37M; Cincin- !J73 ; B, & O. R. R. Co v. State, 41 Md. 
 
 nati, etc., R. R. Co. v. Sampson, 97 268. 
 
 Ky. 65; Tetherow v. Railway Co., 98 « Bolinger v. Railway Co., 36 Minn. 
 
 Mo. 74; Tuteur v. Railway Co.. 77 418; Searle v. Railway Co., 32 W. Va. 
 
 Wis. 505; Abbott v. McCadden, 81 370; St. Louis & 1. M. Si S. R. Co. v. 
 
 Wis. 563; David v. S. W. R. R. Co., Maddry, S7 Ark 306; McPlierson v. 
 
 41 Ga. 223; Pool v. Railway Co., Railway Co , 97 Mo. 253 ; Chic: & A 
 
 7 Utah. .TO3; 26 Pac. Rep. 654; Hojrue R. Co. v. Carey, 115 111. 115. 
 v. Railway Co., 32 Fed. Rep. 365; 
 
§ 209 DAMAGES FOR DEATH BY WRONGFUIv ACT. 380 
 
 Where the loss of physical, moral and mental train- 
 ing is sought to be established, the testimony takes a 
 wider range necessarily than it would where the question 
 is confined to the pecuniary loss solely/ 
 
 In Pym v. Railway Co., 31 L. J. Q. B. 249, Cockburn, 
 C. J., said: "We are of the opinion that as the benefit 
 of education and the enjoyment of greater comforts and 
 conveniences of life depend on the possession of pecuni- 
 ary means to procure them, it is one which is capable of 
 being estimated in money, in other words, it is a pecuni- 
 ar}^ loss and therefore the loss of such advantages as the 
 educational and personal training of the father, arising 
 from his death whose income ceases with his life is an 
 injury in respect to which and for which, under the stat- 
 ute, damages can be recovered." 
 
 The authorities are, however, divided upon this ques- 
 tion, whether damages can be recovered for the loss 'of 
 the personal care, training and instructions of a parent.' 
 
 In Illinois Cent. R. R. Co. v. Weldon, 52 Ills. 290, the 
 court instructed the jury that they might consider the loss 
 of instruction, physical, moral and intellectual, which the 
 father might have been able to give to them had he lived, 
 and this rule was followed in Chicago, Rock Island & 
 Pac. R. R. Co. V. Austin, 69 111. 426 But this principle 
 is denied in Davis v. Guarnieri, 45 Ohio St. 470. The 
 same rule is laid down in New Jersey. Demarest v. Lit- 
 tle, 47 N. J. L. 28, except so far as it can be estimated in 
 money. 
 
 Number of Children. Where children are included 
 under the statute among the beneficiaries, it is proper and 
 necessary to give evidence of their number and age. 
 The reason for this is that as the burden of supporting 
 minor children, by the death of the father, is imposed 
 upon the mother, evidence of their number and age is 
 
 iStaalv. Railway Co., 57 Mich. 239; Canadian Sup. Court, 422; 26 Am & 
 
 23 N. W. Rep. 795 Eng. R. Cas. 454; St. Louis, etc., R. 
 
 2 See Tillev v. Railway Co., 24 N. R. Co. v. Sweet, 60 Ark. 550; Walker 
 
 Y. 471 ; 29 N. Y. 252; Howard County v. Railway Co., 106 Mich. 606; North. 
 
 Coras. V. I.egg,93Ind. 523; Stoher v. Pac. R. R. Co. v. Freeman, 83 Fed. 
 
 Railway Co., 91 Mo. 509; B. & O. v. Rep. 82; Goss v. Railway Co., 80 Mo 
 
 Wightman, 29 Gratt. (Va.) 431 ; St. 614. 
 Lawrence, etc., K. K. Co. v. Lett, 11 
 
381 DAMAGES FOR DEATH BY WRONGFUL ACT. j) 209 
 
 proper to establish the burden which is cast upon her by 
 his death. ^ 
 
 Companionship. The wife is not entitled to recover 
 any damages for the loss of companionship of her hus- 
 band and it would be improper for the jury to consider 
 any such question. '^ 
 
 Proof of Loss of Moral and Physical Training. 
 
 Where the plaintiff claims damages for loss of training, 
 physical, moral and intellectual, which the deceased 
 might possibly have given to his children, there must be 
 evidence to show that he was especially fitted by nature 
 or by education to give such instruction to his children, 
 and that they necessarily sustain a loss in that behalf. 
 If there is no proof upon this question, this element of 
 damage cannot be considered by the jury.'* 
 
 In Mclntyre v. Kailway Co., 37 N. Y. 287, the court 
 held that "pecuniary injury" as used in the statute might 
 include the loss of the personal care, intellectual culture 
 and moral training which the beneficiaries would have re- 
 ceived had the decedent lived. In case of death of wife 
 the jury were told to consider the nurture, and the in- 
 struction, the physical, moral and intellectual training 
 which the mother would have given to the children, had 
 she survived.' 
 
 iSoeder v. Railway Co., 100 Mo. Co., 181 Pa. St. 391; Atchison, etc., 
 
 673 : Atchison, T & S. F. R. R. Co. Railway Co. v. Chance, 57 Kan. 40. 
 V. Wilson, 48 Fed. Rep. 57. An instruction to the jury that in 
 
 The same rule is laid down in estimating the damages they should 
 
 Wisconsin. Schadewald v. Railway include any loss which the widow and 
 
 Co., 55 Wis. 569; I^ierman v. Railway daughter of the deceased have sus- 
 
 Co., 82 Wis. 286; 52 N W. 591 ; Gores tamed or may hereafier sustain by 
 
 V. Graff, 77 Wis. 174, 40 N. W. Rep. being deprived of the support, care, 
 
 48; Mulcairns v. Janesville, 67 Wis. nurture, companionship, assistance 
 
 24 ; Abbott V. McCadden, 81 Wis. 563; and protection of the deceased is not 
 
 29 Am. SI. Rep. 910. erroneous where the court also in- 
 
 structed the jury that nothing could 
 
 2 Georgia, etc. R. R. Co. v. Pittman, ^g allowed on account of mental suf- 
 
 73 Ga 325, Schaub V. Railway Co., 106 jering of the widow and daughter, or 
 
 Mo. 74. as a solace to their feelings. Webb 
 
 « Peoria & Union R. R. Co. v. v. Railway Co., 7, Utah 363; 26 Pac. 
 
 O'Brien, 18 III. App. 28; Walker V. Rep. 981. ■ j .t, f 
 
 Railway Co., 104 Mich 606 ; 69 N. W. ^ Damages for causing death of a 
 
 Rep. 1114; St. L.. etc., R. R. Co. v. human being allowed by the statute 
 
 Maddry, 57 Ark. 306. of California to be recovered by his 
 
 -" heirs or personal representative do 
 
 ^ Tilley V. Railway Co., 24 N. Y. not include sorrow, suffering or men- 
 
 471 ; 29 N. Y. 252; also, 23 N. Y. 158 ; tal anguish occasioned by such death, 
 
 Illinois Cent. Railway Co. v. Weldon, where the decedent left a mother or 
 
 62 111. 290 ; Maher v. Philadelphia Tr. wife, the jury however may take into 
 
i 209 DAMAGES FOR DEATH BY WRONGFUL ACT. 382 
 
 But in Michigan a statutory action to recover for death 
 by wrongful act, it is error to allow the jury to consider 
 damages sustained by decedent's children from the loss 
 of nurture instruction and moral and physical training 
 received from the father, of the value of which there was 
 no evidence. The reason upon which such damages are 
 refused in general in this state is that the damages to be 
 awarded must be limited to the pecuniary loss sustained 
 by those in whose interest the case is prosecuted. 
 
 There should be no restriction upon the loss so long as 
 it falls within the rule of proximate loss and naturally 
 follows as the result of the death. A loss of proper in- 
 struction and parental solicitude and training to a child 
 of tender years is as much of a loss to him as that loss 
 which concerns his food, clothing and maintenance. 
 
 Construction of the Word " Pecuniary." In West 
 Virginia where the statute limits the recovery to the 
 pecuniary loss, it has been held proper for the court to 
 instruct the jury, where an action has been brought for 
 the death of the father, that "in estimating the pecuniary 
 injury, they may take into consideration the nurture, in- 
 struction and physical, moral and intellectual training 
 which the children would have received from their 
 father."^ 
 
 A liberal construction should be given to the word 
 "Pecuniary" when used in this sense.^ 
 
 Limitation of Damages to Minority. Where dam- 
 ages are claimed by the children for any loss which they 
 might severally sustain beyond the age of majority, there 
 must be some evidence affirmatively shown to the effect 
 that the expectation of pecuniary benefit would accrue to 
 them after their majority from the life of their father.' 
 
 consideration her loss of comfort, so- ' Se irle v. Railway Co., .32 W Va 
 
 ciety, and protection. 370; to the same effect, f 'illey v. Rail' 
 
 The damages given by the code of way Co., 24 N. Y. 471 ; 29 N Y 252 
 
 Cahforuia for negligently causing Dimmey v. Railway Co., 27 W. Va 
 
 the death of a person are recoverable 57 ; Stoher v. Railway Co 91 Mo 
 
 for the benefit of his heirs, and do 509; Walker v. McNeill 17 Wash 
 
 not constitute any part of his estate. .582. 
 
 Munro v Dredging Co., 84 Cal. 515; ^Vicksburgh v. McLaiu, 67 Miss. 
 
 18 Am. St. Rep. 248 ; see 12 Am. St. 4 
 
 ^^?iP' T> -1 r. ... 'Tyler&S.E. Railway Co. V. Ras- 
 
 Kn^«Q^' Z- ^ "^^l f °-' ^°^ ^"'^- ^"'■y' 13 Tex. Civ. App. 185 ; 34 S. W. 
 bOb; 69 N. W. Rep. 1114. Rep. 794. 
 
383 DAMAGES FOR DEATH BY WRONGFUL ACT. i 210 
 
 The same rule has been held to apply where an action 
 is brought by the children for the death of the mother.' 
 
 In New York it has been held that damages recoverable 
 for the loss of intellectual and moral training of the 
 parent are not necessarily limited to the minority of the 
 child or children, if the jury should find that the training 
 and the advantages to be derived therefrom would have 
 continued after their maturity.^ 
 
 In Ohio, the rule has been laid down that while in the 
 trial of a case for death by a wrongful act, neglect or de- 
 fault of the defendant, the only question to be determined 
 in estimating the damages, is the pecuniary loss resulting 
 from the death of the husband to the widow and next of 
 kin. The feelings of the widow and next of kin, their wealth 
 or poverty, or any other fact than those relating to pecuni- 
 ary injury, cannot be considered in assessing the dam- 
 ages. The fact that the widow is deformed and disabled, 
 can in no wise increase or diminish the amount of dam- 
 ages she is entitled to recover. Judge Burket, in discus- 
 sing the case, said: " In the case of the widow and chil- 
 dren, the natural presumption, and in fact the duty of 
 the deceased, is to support them, and in the absence of a 
 showing to the contrary, the presumption is that such 
 support would be to the full extent of his ability, after 
 supporting himself; and in such cases there is no need of 
 showing the poverty of the widow and children. But in 
 case the widow and children should be wealthy in their 
 own right and having before the death of the deceased, 
 received little if any support from him, such facts might 
 well be shown in evidence for the purpose of showing 
 that the pecuniary injury was small and thereby reduce 
 the damages. Any fact which tends to show the amount 
 of the pecuniary loss to the beneficiaries is competent 
 evidence, whether it tends to increase or diminish the 
 damages.'" 
 
 § 210. Death of Wife. Where the wife is negligently 
 killed and an action survives to the husband and chil- 
 dren, the damages which the children are entitled to 
 
 iRedfield V. Railway Co., 110 Cal. ^street Railway Co. v. Altemeier, 
 
 277. 60 Ohio St. 10, 17. 
 
 2Tilley v. Hudson River Railway 
 Co., 29 N. Y. 252. 
 
? 210 DAMAGES FOR DEATH BY WRONGFUL ACT. 384 
 
 recover are to a large extent the same as those allowable 
 in the ease of the death of the husband. But the dam- 
 ages which the husband is entitled to recover are of a 
 somewhat different nature than those which the wife is 
 entitled to recover, except where it may be a case of an 
 invalid husband whose support was dependent upon the 
 assistance, labor and industry of the wife. 
 
 It is impossible to lay down any fixed and definite rule 
 for the guidance of the jury, but the amount of damages 
 rest largely in their sound discretion and good judgment, 
 taking all the facts and circumstances into consideration. 
 
 The principal loss which the husband sustains by rea- 
 son of the death of his wife necessarily includes the loss 
 of her services. The measure of the loss of such serv- 
 ices as a basis for damages, is their reasonable value.' 
 
 It is not necessary that there should be proof of the 
 actual value of the services but the jury may infer this, 
 and that the wife was an industrious and useful woman.^ 
 
 In Pennsylvania R. R. Co. v. Goodman, tmpra, the 
 court charged the jury that damages should he. given as 
 a pecuniary compensation, that the jury in arriving at the 
 plaintiff's loss, may estimate the services and companion- 
 ship of the wife, that is, their value in a pecuniary sense, 
 nothing being allowed to the plaintiff for wounded feel- 
 ings. This charge was sustained on the ground that 
 companionship was evidently used to express the relation 
 of the deceased in the character Of the services rend- 
 ered. 
 
 In Ohio it has been held that frugality, industry, atten- 
 tion and the tender solicitude of the wife and the mother 
 of children are in a sense a pecuniary loss and such as 
 no other person will render to the husband for him and 
 his children and that such services are much more valu- 
 able than those of the ordinary servant. They are ele- 
 ments of damages which should be given to the jury for 
 consideration. ^ 
 
 In Virginia it has been held, in an action by a husband 
 for the wrongful death of his wife, evidence may be intro- 
 
 iChicago & N. W. R'y. Co. v. 2 Chant v. S. E. R. R. Co., Weekly 
 
 Whitton, 13 Wall. 270; Penn. R. R. Notes (Eng.) 1866 p. 134, Del. & L. 
 
 Co. V. Goodman, 63 Penn. St. 329; W. R. R. Co. v. Jones, stip>a 
 
 5^'- ^tf • K-. R. Co. V. Jones, 128 Penu. ^ Davis v. Guarneiri, 45 Ohio St. 
 
 St. 308 
 
 470. 
 
385 DAMAGES FOR DEATH BY WRONGFUL ACT. § 211 
 
 dueed by him to show that after the marriage, the wife 
 had such an influence over him as tended in a marked 
 degre*^ to improve his habits and pecuniary condition.' 
 
 Husband no Cause in Tennessee. Damages for the 
 death of a married woman cannot include the loss to her 
 minor child, where the action is brought by the husband, 
 under Mill & V. Code, Sec. 3130, which provides that a 
 right of action for injuries causing the death of any per- 
 son shall not abate by reason of the death, but shall pass 
 to his widow,or, if none, to his children or to his personal 
 representative for the benefit of the widow or next of 
 kin, but fails to make any express provision as to the 
 beneficiary in case of the death of a married woman, and 
 leaves the recovery to go to the husband jure mariti as it 
 would have gone at common law but for its rule of 
 abatement. A. surviving husband as such cannot main- 
 tain a suit for the wrongful killing of his wife under the 
 Code, although the recovery inures to his benefit, but 
 he must bring the action as administrator.^ 
 
 § 211. Damages for Death of Child. Where a parent 
 isentitled to recover damages for the wrongful killing of 
 his child, the pecuniary value of such child's services 
 during the period of minority and the actual expenses 
 incurred by the parent on account of the injury, is a 
 measure of damages. I'he value of such child's services 
 are to be estimated and determined by tlie ordinary rules 
 in determining such value and not by any value which 
 may be placed upon such services by the parent. From 
 such value, whatever it may be found to be, there must 
 be deducted the usual reasonable expenses incurred for 
 the care and support of such child. 
 
 The right of an action given to the parents of a minor 
 for death caused by negligence is dependent upon stat- 
 ute.' 
 
 This right belongs to the parents only in the event that 
 such minor has no wife.* 
 
 'Simmons v. McConnell 86 Va. Usher v. W. Jersey Rd. Co., supra, 
 
 494. 4 L. R. A. 520; Winnt v. Railroad 
 
 2 Chattanooga Electric Ry. Co. v. Co.. 74 Tex. 32; 5 L. R. A. 172; 
 
 JTohnson, 97 Ten n. 667; 34 L. R. A. Stewart v. Railroad Co., 103 Ind. 44; 
 
 442. Corliss v. Railroad Co., 63 N. H. 404. 
 
 3 Louisville, New Albany & C. Rd. ^Dulaney v. Mo. Pac. Rd. Co., 21 
 
 Co. V. Buck, 2 L.R. A. 520; 116 Ind. 566; Mo. App. 597. 
 
 25 
 
§ 211 DAMAGES FOR DEATH BY WRONGFUIv ACT. . 386 
 
 The right of action continues during the minority of 
 the child. ' 
 
 The law will imply substantial pecuniary loss in some 
 amount to a child from the death of the father.^ 
 
 To authorize a verdict for substantial damages in an 
 action by a parent for the negligent killing of his infant 
 child, it is not necessary to make proof of the amount of 
 damages sustained. The jury may infer this from all 
 the facts in the case.' 
 
 The measure of damages to a parent for the negligent 
 killing of his child is t-he pecuniary value of his services 
 during minority and the cost and expenses incurred by 
 the parent on account of the injury less reasonable and 
 necessary expenses of raising it ; the value to be such as 
 is ordinary for children in like condition and station in 
 life, without regard to relationship between them or to 
 the parents' feelings or the child's sufferings.* 
 
 The necessary injury resulting to a parent from the 
 negligent killing of his minor child within the meaning of 
 the statute, is the loss of his services during minority, 
 cost of nursing, surgical and medical attendance, and 
 appropriate funeral expenses.^ 
 
 In Cincinnati Street Railway v. Altemeier, 60 Ohio St. 
 10, an action was brought for causing the death of a child 
 twelve years old, and the principal question discussed 
 was the pecuniary injury sustained by the parent in con- 
 sequence of such death. 
 
 Judge Burket, in discussing this question, says : " But 
 how shall this pecuniary injury to the survivors be ascer- 
 tained and measured by the jury? Manifestly it must 
 
 iNorth Penn. Rd. Co. V. Kirk, 90 Pa. ^ pierce v. Conners, 20 Col. 178; 
 
 S'- 15. McLain County Coal Co. v. McVey, 
 
 ^ivouisville, etc. Rd. Co. v. Buck, 116 38 111. App. 158 ; Atchison, etc. R. R. 
 
 lud. 566, 9 Am. St, Rep.33:S; Louis- Co. v. Cross, (Kan.) 49 Pac. Rep. 599 ; 
 
 viUe, etc. Rd. Co. v. Goodykoontz, Penn. R. R. Co. v. Kelley 31 Pa St. 
 
 119 Ind. Ill; 12 Am. St. Rep. 380; Hud- 372; Pa. R. R. Co. v. Bantom, 54 Pa. 
 
 son V. Houser, 123 Ind. 309 ; Railway St. 495; St. L.etc. R. R. Co, v. Davis, 
 
 Co, V Webber, 33 Kan, 443; Rich- 55 Ark, 462 ; Walters v. Chicago, etc. 
 
 ""^xT*^ ''■, ^^il'^^ad Co., 87 Mich. 374. R. R. Co. 41 Iowa, 71 ; International, 
 
 "Nagelv, Railway Co., 76 Mo. 653; etc. R. R. Co. v. Kindred, 57 Tex. 
 
 °4 o!"v^ ^"^- ^^- '^^*^®' ^^2- 491 ; Gulf, etc. R. R. Co. v. Compton, 
 
 ^StLoms, I. M & S. Ry. Co. v. 78 Tex. 667; Holt v. Spokane, etc., 
 
 Freeman, 36 Ark. 41 R. R. Co. (Idaho), 35 Pac. Rep. S9 
 
 Rams V. Railway Co., 71 Mo. 164 ; 5 Burkett v. Knickerbocker Ice Co., 
 
 Am. & Eng. Rd. Cases, 610. 110 N. Y. 504. 
 
387 DAMAGES FOR DEATH BY WRONGFUL ACT. § 211 
 
 be determined by the jury from the evidence in the case, 
 and not merely by guess. Such facts should be estab- 
 lished in the case by such evidence as will enable the 
 jury to fix the amount of the pecuniary loss to each per- 
 son entitled to share in the recovery, and the jury should 
 confine the verdict to the amount of loss so proven. 
 
 "To warrant a recovery at all it must be shown by evi- 
 dence that in the usual course of events in life, the bene- 
 ficiary would have received financial aid from the de- 
 ceased had he lived, and the approximate amount of such 
 aid. 
 
 "In the case of parents it may be shown that they 
 were in circumstances and health requiring that the 
 deceased child should aid them by his services, not only 
 during minority, but thereafter. In such eases the finan- 
 cial circumstances and health of the parents are very 
 important, because a parent in poor circumstances would 
 likely be compelled to depend largely upon his minor 
 children for support, while a rich parent would receive 
 no financial aid from his minor children, and on the con- 
 trary would find them a financial burden upon his hands. 
 A rich parent whose child is a continued financial ex- 
 pense to him and who has no reason to expect financial 
 aid from such child sustains little, if any, pecuniary 
 injury from its death beyond the funeral expenses ; while 
 a poor parent, and especially if in bad health, mi^ht rea- 
 sonably expect substantial aid from his child, not only 
 during its minority, but for years thereafter. 
 
 "The jury should be governed by the circumstances of 
 each case as shown by the evidence, and return a verdict 
 for such an amount as the evidence shows the reasonable 
 pecuniary loss to be, and if no pecuniary loss is proven, 
 the verdict should be for the defendant." 
 
 Where a parent brings an action for the value of the 
 services of his child, in the damages to be recovered, he 
 is not limited to the services which such child may ren- 
 der during its minority. Such parent may show any pe- 
 cuniary benefit which he has reason to expect he will sus- 
 tain after the majority of such child and may recover a 
 reasonable value therefor.^ 
 
 •Hurst V. Railroad Co., 84 Mich. Ice Co., 110 N. J. 504 ; Cumming v. 
 
 539; Raifis v. Railroad Co., 71 Mo. Railroad Co., 109 N. Y. 95 ; Williams 
 
 164 Goss V. Railroad Co., 50 Mo. v. Railroad Co., 91 Ala 635 ; Morgan 
 
 App. 614; Birkett v. Knickerbocker v. Railroad Co., 95 Cal. 510; 29 Am., 
 
? 211 DAMAGES FOR DEATH BY WRONGFUL ACT. 388 
 
 Any expenses incurred by the parent for the care and 
 support of his child must be deducted from the sum 
 which the jury may award for the value of such child's 
 services. It is the net value of such services which the 
 parent is entitled to recover. 
 
 Where the child has property of his own, and such 
 property is chargeable with his support, it may be de- 
 ducted from the expense of such care and support and 
 the judgment increased by whatever income the child 
 may receive from his own property.^ 
 
 In estimating the pecuniary value of the child's serv- 
 ices there are several conditions and circumstances to be 
 considered where a judgment is asked by the parents for 
 the death of their child. The physical, mental and moral 
 peculiarities of each child must be considered by the 
 jury.' 
 
 Where a child is a minor and has been emancipated, 
 such fact does not preclude a recovery of substantial 
 damages by the parent.^ 
 
 Construction of the Word " Pecuniary." The 
 
 word ", Pecuniary " as used in connection with the right 
 of the parent to recover damages for the loss of his child, 
 is not to be construed in any narrow and restricted sense 
 but it must be given a libei'al signification or interpreta- 
 
 St. Rep. 143 ; Banyea v. Railroad Co., App. 570 ; Union Pac. Ry. Co. v. Dun- 
 
 19 D. C. 76; Duval v. Hunt, 34 Flor- den, 37 Kan. 7 ; Cooper v. Railroad 
 
 ida, 85; Hopkinson v. Kuapp, 92 Co., 66 Mich. 261; Strutsell v. City 
 
 Iowa, 328; St. t,., etc., R. R. Co. v. Ry. Co., 47 Minn. 543; City of Vicks- 
 
 Freeman, 36 Ark. 41 ; St. I, , etc., R. burg v. McLain, 67 Miss. 4 ; Parsons 
 
 R. Co. V. Davis, 35 Ark. 462 ; Rock- v. Railway Co., 94 Mo. 286 ; Franke 
 
 ford, etc., R. R. Co. v. Delaney, 82 111. v. City of St. L., 110 Mo. 516 ; Post v. 
 
 198; Lehigh Iron Co. v. Rupp, 100 Pa. Olmstead, 47 Neb. 893 ; San Antonio 
 
 St. 95 : Pennsylvania Coal Co. v. Nee, St. Ry. Co. v. Watzlavzick, Civ. App. 28 
 
 13Atl. Rep.481; Ross v. Railroad Co., S. W. 115; Austin Rap. Trans. Ry. 
 
 44 Fed. Rep, 44 ; The Oceanic, 61 F'ed Co. v. Cullen, 39 S. W. 256; 30 S. W. 
 
 Rep. 338; Liale Rock & Ft. Scott Ry. 578; Riley v. Salt Lake Rap. Trans. 
 
 Co. V. Barker, 39 Ark. 491 ; Nehrbas v. Co., 10 Utah, 428 ; Schier v. Railroad 
 
 Railroad Co., 62 Cal, 320; Chicago & Co., 65 Wis. 457; Johnson v. Ore & N. 
 
 Alton R. R. Co V. Becker, 84 111. 453 ; W. 64 Wis. 425. 
 
 City of Joliet v. Weston, 123 111. 644 ; i Cuming v. Brooklyn City Railway 
 Chicago, etc., R. R. Co. v. Adamic, 33 Co. 109 N. Y. 95. 
 111. App. 412; Chicago & N. W. Ry. 2 pierce v. Connors, 20 Colorado, 
 Co. v Deslauniers, 40 111. App. 654; 178; 46 Am. St., 270; Telfer v. Rail- 
 North Chicago St. Ry. Co. v. Wri?:on, way Co., 30 N. J. Law, 188 ; Callaway 
 51 111. App. 307 ; B. & O. S. R. R. Co. v. Spurgeon, 63 111. App. 571. 
 v. Then, 59 111. App. 561; Pennsylva- ^See Philpot v. Railroad Co., 85 Mo. 
 ma Co. v. Lilly, 73 Ind. 252; Chicago 164; St. Louis, etc. Railroad Company 
 & Eastern Ry, Co. v. Branyau, 10 lud. v. Wheeler, 35 Kan. 185. 
 
389 DAMAGES FOR DEATH BY WRONGFUL ACT. § 211 
 
 tion. It includes within its meaning both present and 
 prospective damages which the parent has reason to ex- 
 pect from the continuance of the life of his child.' 
 
 The amount of damages which a parent is entitled to 
 recover depends upon the circumstances of the case, the 
 ability and earning capacity of the child and his age. 
 
 It is best to offer evidence of the poverty of the parent, 
 and her or his dependence upon the son for maintenance 
 and support, to form a basis for determination of the 
 damages sustained.^ 
 
 Damages Limited to the Expectancy of the Pa- 
 rent's Life. The plaintiff should show on the trial in an 
 action to recover damages for the loss of his child, the 
 expectancy of his life as shown by the mortality tables. 
 He is entitled only to recover damages during the expec- 
 tancj of his life and not during the expectancy of the 
 child's life. It is the pecuniary benefit which the parent 
 would have received, had the child lived, for which he is 
 entitled to recover, and such benefit must be limited to 
 the life of the parent.^ 
 
 Where an action is brought for the death of a minor 
 child, the right of the parent to recover damages is not 
 dependent upon proof as to the value of the child's serv- 
 ices. This may be determined by the jury without evi- 
 dence on this question.* 
 
 A different rule is applied where an action is brought 
 to recover for the loss of services rendered and to be 
 rendered by an adult child. In such case, substantial 
 damages can only be recovered upon proof that the 
 deceased had been a source of actual pecuniary benefit 
 to his parents, and that there was reasonable expectancy 
 of the continuance of the same had his life been spared.* 
 
 Marriage of Decedent. It has been held that where 
 a husband loses his wife by reason of negligent killing, 
 and brings an action to recover damages for the loss to 
 
 'Vickburgh v. McLain, 67 Miss. 4; spordyce v. McCants, 51 Ark. 509; 
 
 Walker v. McNeil, 17 Washinton, 14 Am. Rep. 69. 
 
 582. ^Birkett V. Knickerbocker Ice Co., 
 
 2 Little Rock, M. R. & T. Rd Co. v. 110 N. Y. 504 ; Parsons v. Railroad 
 
 Leverett, 48 Ark. 333; Ewen v. Rail- Co., 94 Mo. 286. 
 
 road Co. 38 Wis. 622 ; Cook v. Rail- * Cherokee Coal Co. v. Limb, 47 
 
 road Co., 60 Cal.609; Opsahl V. Judd, Kansas, 469; Fordyce v. McCants, 
 
 30 Minn. IL'6. supra. 
 
§ 211 DAMAGES FOR DEATH BY WRONGFUL ACT. 390 
 
 him of her services, the defendant cannot show in miti- 
 gation of damages that the plaintiff had married and that 
 his second wife performed for him all the services which 
 he would have had reason to expect would have been 
 rendered by his deceased wife.' 
 
 The same rule undoubtedly would apply to the case of 
 an infant where the parent brings an action to recover 
 -damages for its death. The reason why it would apply 
 is that while marriage would not necessarily destroy the 
 value of the services which such child might render for 
 his parent, yet it might be proper to show all the circum- 
 stances and leave it to the jury to determine how much 
 the loss of such services, if any, was depreciated by the 
 marriage. 
 
 Loss of Child's Society, Companiouship. In an 
 action by a parent for the negligent killing of his child, 
 the loss of the child's society and the comfort the father 
 would have had in rearing him, cannot be considered as 
 an element of damage. Compensation is limited to the 
 actual pecuniary loss sustained and this cannot be called 
 such loss.^ 
 
 Mental Angviish and Suffering of the Parents. It 
 may be laid down as a rule generally accepted by the 
 authorities that where an action is brought by the father 
 for the death of his child, no damages can be considered 
 or allowed for the suffering or wounded feelings of the 
 parents. It is only the pecuniary loss which the parents 
 are entitled to recover, and such loss in no sense can 
 comprehend the mental suffering and anguish of the 
 parents which they may undergo by reason of the death 
 of their child." 
 
 But under the statute in California which provides that 
 the jur^may allow such damages as "under all the cir- 
 cumstances of the case may be just, ' ' damages for sorrow, 
 grief and mental suffering occasioned by the death, as 
 well as damages sustained by the loss of the son's com- 
 fort and society, support and protection, may be 
 allowed.* -*U-„ 
 
 iDavis V. Guarnieri, 45 O. S. 470; 4 St. 372 ; Dorman v. Railroad Co., (1) 
 
 ^J^J,^^^- \fl ?''o^„°"'* ^- ^- ^°- "• N. Y. S. 334; Little Rock& Ft. Scott 
 
 f ,,r?',^' ^'■k- 306. K . R, Co. V. Barker, 33 Ark. 350. 
 „r '^"^'In^,.^ ^•..^- ^- ^- ^°- "■ 'Monroe v. Railroad Co., 84 Cal. 
 
 Watly,69Miss 145. 515; 24 Pac. Rep. S03 ; Morgan v. 
 
 2 Penn. R. R. Co, v. Kelley, 31 Penn. Southern Pac. Co., 95 Cal 510 
 
391 DAMAGES FOR DEATH BY WRONGFUL ACT. §? 212-213 
 
 Apportioning the Damages Between the Father and 
 Mother. Where an action is brought by the parents 
 against the defendant for negligently causing the death 
 of their son, the jury may apportion the damages 
 recovered/ 
 
 § 212. Damages Recoverable by Parents for Men- 
 tal Snlfering. The parents of any person who sustains 
 injury from which death results may recover damages 
 endured by them when an unnecessary delay is made in 
 sending a dispatch in relation to such"injury for the men- 
 ial suffering and anxiety caused thereby.^ 
 
 To authorize any recovery for such damages an inde- 
 pendent action must be brought by such parents setting 
 forth specifically the facts and allegations in relation 
 thereto. It is a separate and independent action and 
 cannot be joined with the action authorized by statute to 
 be maintained by the next of kin or by the person desig- 
 nated to bring an action for the benefit of the parties 
 named and recognized as having sustained a pecuniary 
 loss.' 
 
 § 213. Damages — Collateral Heirs. The same rules 
 and principles apply and furnish a right to collateral 
 relatives to bring and maintain an action for damages for 
 the death of a relative, as in case of nearer relatives.* 
 
 A sister or brother has no pecuniary interest in the 
 deceased. There must be an obligation to support or an 
 enforeible interest, if there is none, no action can be 
 maintained.' 
 
 The action lies for the benefit of the next of kin, and 
 where there is no widow nor children, brothers and sis- 
 ters may maintain the action and it is unnecessary to 
 aver special circumstances, rendering the death a pecu- 
 
 ' Houston City St. Railway Com- 21 Am. St. Rep 249 ; Stuart v. West, 
 
 pany v. Sciacca, 80 Texas 350; 16 U. T. Co., 76 Tex. 689; Beasely v. 
 
 S. W. Rep. 81. West. U. T. Co., 39 Fed. Rep. 181. 
 
 ^Renihan v. Wright, 125 Ind. 534; ^Anderson v. Railroad Co., 35 Neb. 
 
 9 L. R. A. 514. 95; 52 N. W. 840; Johnson v. Railroad 
 
 3Reese V. Western U. T. Co., 123 Co., 7 O. S. 336; Hall v. Grain, 2 Dec. 
 Ind. 294, 7 L. A. R. 583; Hadley v. Re. (Obio) 45;<; Groff, Adm'r, v. Rail- 
 Western U. T. Co., 115 Ind. 191; 15 road Co., I C. S. C. 264; Serenson v. 
 N. E. Rep. 845 ; Western U. T. Co. v. Railroad Co., 45 Fed. Rep. 407. 
 Broerche, 71 Tex. 507; 10 Am. St. Rep. 'Halloran v. Railroad Co., 4 Dec. 
 775 ; Renihan v. Wright, 125 Ind. 536 ; Re. (Ohio) 14. 
 
? 214 DAMAGES FOR DEATH BY WRONGFUL ACT. 392 
 
 niary loss to them ; such circumstances affect only the 
 amount of the recovery.^ 
 
 Where the action is for the benefit of collateral kindred 
 heirs, pecuniary damages and reasonable expectation of 
 pecuniary benefit are to be considered. They are not 
 entitled to recover as a wife and children would be.^ 
 
 Proof of Loss. In an action by a brother or sister 
 for damages for the loss of an adult brother, there must 
 be proof of pecuniary loss or reasonable expectation 
 thereof or only nominal damages are recoverable. The 
 reasons for these rules are that in general, no pecuniary 
 loss is sustained where these several relations exist. But 
 whenever there is evidence of pecuniary loss an exception 
 arises; and the brother or sister who is dependent in 
 whole or in part upon such deceased person, is entitled to 
 recover such damages as have been sustained. These 
 exceptions are based upon justice and sound principles. 
 
 The recovery cannot be sustained except upon evidence 
 of pecuniary benefit received from the deceased or upon 
 a reasonable expectation of their continuance.' 
 
 Where the widow and children are the next of kin, 
 pecuniary damage will be presumed; but in case of a 
 brother or other person, where there is no obligation to 
 support, the fact of special damage must be shown, and 
 the relationship of next of kin established.* 
 
 §214. Solatium for Wounded Feelings. It may be 
 
 regarded as a settled rule of law that no damages can be 
 recovered by the plaintiff or those in whom this right 
 rests by reason of the statute, for what is known as a 
 solatium for the wounded feelings or for the mental 
 anguish which the death of a relative may have caused. 
 Evidence of such mental suffering is inadmissible. This 
 rule, however, l^as been modified in some states by statu- 
 tory provision. 
 
 ijohnston v. Railroad Co., 7 O. S. vantage to either of them if he had 
 
 ^^^- „ . survived. The verdict was reduced 
 
 •Groff V. Railroad Co., 1 C. S. C. 1$,000. 
 
 264- 3 B. & o. Rd. Co. V. State, 63 Md. 
 
 In this last case, a verdict of $2 500 135; Petrie v. Railway Co 29 S C 
 
 was obtained. The person killed 303 ; 7 S. E. 515 ; Fordyce v. McCants, 
 
 was a poor man ; his only property 61 Ark. 609, 4 1.. R. A. 296 
 
 consisted of his monthly wages as ^Dunhene v. Ohio L. Ins. & Tr. Co., 
 
 fireman, and without any reasonable 1 Dis. 257 (12 Re. 608 ) 
 expectation of any anticipated ad- 
 
393 DAMAGES FOR DEATH BY WRONGFUL ACT. ? 214 
 
 One of the earliest cases upon this subject and which 
 has become a leading case, is that of Blake v. Railway 
 Co., 18 Queen's Bench, 93, in which Coleindge, J., said that 
 the act giving to^ the next of kin, or those who suffer 
 pecuniarj^ loss, a right of action for the death of the 
 decedent, is an act for compensating the families of the 
 person killed, but not for solacing their wounded feelings, 
 and it was held in this case that the jury should not take 
 into consideration the mental sufferings of the plaintiff 
 for the loss of her husband, in ascertaining and award- 
 ing the damages, and that where the damages exceeded 
 any loss sustained in addition to the pecuniary estimate, 
 they must be considered excessive; or, as has been held 
 by some other authorities, the jury are confined to the 
 pecuniary loss, except as modified by the statute, and 
 nothing can be allowed by way of solatium for the grief 
 and wounded feelings of the beneficiaries.' 
 
 In Hutchins v. Railway Co., 44 Minn. 5, it was held that 
 no compensation could be allowed for wounded feelings 
 or for the loss of the comfort and companionship of the 
 dead relative. 
 
 In Hall V. Railway Co., 39 Fed. Rep. 18, it was held that 
 the father could not recover anything in an action for the 
 death of his son on account of the physical and mental 
 suffering and anguish endured by him by reason of his 
 death; nor for the loss of his son's society. 
 
 In Hyde v. Railway Co. , 7 Utah, 356, where an action 
 was brought by the father to recover damages for the 
 death of his child, the court held evidence as to the grief 
 of the father inadmissible; and in Webb v. Railway Co., 
 7 Utah, 17, it was held to be error to charge tlie jury that 
 
 1 Illinois Cent R. R. Co. v. Barron, Co. v. Tramtnall, 93 Ala .350 ; Morgan 
 
 5 Wall 95; Uttle Rock & Ft. Scott v. Railroad ^0.95 Ca, 510 PepP- v 
 
 Ry. Co. V. Barker, 33 Ark. 350 ; State Railway Ca, ^05 C^'- 3«9 , Bait "^^e 
 
 V Railway Co., 24 Md. 271 ; Kan. Pac. Turnpike Road Co. v. State, 71 Md 
 
 RR Co V Cutter 19 Kan. 83: Myn- 573; Baltimore Turnpike R. Co. v. 
 
 Le V Railway Co- , % Mich. 267 ; State, 60 Md. 449 ; Hyatt v. Adams, 
 
 flTrdW Railway Co., 36 Fed. Rep. 16 Mich. 180; Kan. Pac. R. R Co. v. 
 
 657 A T & S F R R Co. v. Wilson, Miller, 2 Col. 442 ; Kilhan v. Railway 
 
 4« Fpd ReD 57 Steel v. Kurt, 28 O. Co., 79 Ga. 234 ; Penn. Rd. Co.v. Lilly, 
 
 Orr, 91 Ala. 548 ; Louisville, etc. R. R. 443, 19 C. C. O. 177. 
 
f214 DAMAGES FOR DEATH BY WRONGFUL, ACT. 394 
 
 damages may be recovered for the mental pain and 
 anguish caused to the mother. 
 
 The same rule was laid down in Nashville v. .Stevens, 9 
 Heisk. (Tenn.) 12, where the trial court charged the jury- 
 that if they find that the injury resulted in sudden death, 
 they may also consider, in awarding damages, "the shock 
 to the feelings of the wife." 
 
 The reason for this rule as laid down by the Tennessee 
 court, was that the statute allows no compensation for 
 any grief or for any mental suffering caused to the plain- 
 tiff or to the beneficiary. 
 
 In Mobile, etc. R. R. Co. v.Watley, 69 Miss. 145, where 
 the statute omits the word "pecuniary " before the word 
 "injury," the trial court instructed the jury, in an action 
 by the father for the loss of his child, that they might 
 consider "the loss of his society and the comfort the 
 father might take in rearing him and bringing him up to 
 manhood and the reliance he might place upon him in 
 future years for his support. " 
 
 The Supreme Court held this to be error, saying, "It 
 is a question of dollars enough to pay for the loss the 
 father has sustained," and not to be required to pay for 
 any mental anguish or agony. 
 
 In Goss v. Mo. Pac. R. H. Co., 50 Mo. App. 614, where an 
 action was brought by a minor daughter for the death of 
 her father, the court held she was entitled to nothing as a 
 solatium for mental anguish or suffering resulting from 
 death or the loss of her father's society;^ or where an 
 action is brought by the father for the death of the son. 
 Schaub V. Railway Co., 106 Mo. 74.' 
 
 DiflFerent Rule in Scotland. The rule laid down in 
 the English cases heretofore cited and generally adopted 
 by the authorities herein cited, does not prevail in Scot- 
 land, There damages for solatium and for wounded feel- 
 ings and mental anguish may be recovered. There it is 
 said: " The law takes cognizance of the suffering of the 
 family of a person killed and gives assythment, both as 
 indemnification, and as solatium." 
 
 'Parsons v. Railway Co., 94 Mo. S. 334 ; Carlson v. Railway Co ,21 Ore. 
 
 286. 450; Penn. R. R. Co. v. Van Dever, 
 
 'See also Kesler v. Smith, 66 N. C. 36 Pa. St. 298; Pa. R. R. Co. v. Butler, 
 
 154; Dorman v. Railway Co., 1 N. Y. 57 Pa. St 335 
 
395 DAMAGES FOR DEATH BY WRONGFUL ACT. 5 214 
 
 But this rule has been modified by the statutes of some 
 o± the states where the jury are allowed to assess dam- 
 ages such as they may deem just and fair with reference 
 to the injury which resulted in death; and where damages 
 are not limited to the pecuniary injury in such states, the 
 jury may consider the loss of the society caused by the 
 death, and the comfort which the parent might derive 
 from the life of his child.' 
 
 In California where an action was brought by the widow 
 for damages resulting in the death of her husband, it 
 was held that the jury could consider the reJations exist- 
 ing between the plaintiff and the deceased at the time of 
 his death and to award damages for the loss of his 
 society/ 
 
 But in Morgan v. Railway Co., 95 Cal. 510, all these 
 early cases were reviewed and the doctrine denied so far 
 as any damages for solatium, for the wounded feelings 
 and mental anguish were concerned. 
 
 In the early case of Long v. Morrison, 14 Ind. 595, 
 damages for solatium were allowed but in a recent de- 
 cision it has been disapproved." 
 
 Formerly in Quebec, it was held that damages could be 
 allowed for solatium upon the ground that the right to 
 recover such damages existed under the civil law and 
 was not abolished by the statute.' 
 
 But the more recent decisions hold that tiie damages 
 must be confined to the pecuniary loss.'* 
 
 But under the statute of Canada, Chap. 78, Sec. 3, 
 where it provides, "The jury or judge may give such 
 damages as they think proportioned to the injury sus- 
 tained from such death," it is held that the husband 
 can not recover damages of a sentimental character for 
 the death of his wife; and yet he may recover for the loss 
 of household services usually performed by the wife for 
 the reason that they are a substantial loss, and the chil- 
 
 1 Matthews v. Warner, 29 Gratt. » Louisville, etc., R. R. Co. v. Rush, 
 
 (Va.) 570. 127 Ind. 545. 
 
 •Beeson v. Green Mountain Gold ^Ravary v. Railway Co., 6 Low. 
 
 Mining Co., 57 Cal. 20; Cooke v. Can. Jur. 49. 
 
 Clay ^t. Hill Co., 60 Cal. 604 ; Nehr- ^ Cana|da Pac. R. R. Co. v. Robin- 
 has v. Railway Co., 62 Cal. 3-iO; Cleary son, 14 Can. Sup. Court, 105; City 
 -7. Railway Co., 76 Cal. 240. of Montreal v. Labeele, 14 Can. Sup. 
 
 Court, 741. 
 
? 215 DAMAGES FOR DEATH BY WRONGFUL ACT. 396: 
 
 dren may recover damages for the loss of the care, and 
 moral training of their mother/ 
 
 In Utah the jury were told that in estimating the dam- 
 ages they might include any loss which the widow and 
 daughter sustained or might thereafter sustain on ac- 
 count of being deprived of the support, care, nurture, 
 companionship and protection of the deceased, and they 
 might assess damages for mental suffering on account of 
 loss of companionship, but that they could not allow any- 
 thing for mental suffering or damages as a solace to their 
 feelings/ 
 
 But this is not supported by the general rule, which is 
 that no damages can be awarded to the beneficiaries as a 
 compensation for the loss of society or of companionship 
 of the deceased/ 
 
 But in this case an action was brought by the husband 
 and the court charged the jury that damages might be 
 given as a pecuniary compensation for any just estimate 
 of the wife's services and companionship ; that is, they 
 might consider such loss and their value in a pecuniary 
 sense, but they could not allow anything to the plaintiff 
 for wounded feelings. 
 
 'Kindly Disposition of the Deceased. Where the plain- 
 tiff brings an action to recover damages for the loss of 
 her husband, it is proper for her to show on the trial that 
 he was of a kindly disposition and that the relations exist- 
 ing between them were affectionate and that he was an 
 indulgent father and husband.* And the same rule was 
 held by the earlier decisions of California but was over- 
 ruled in Morgan v. Railway Co., 95 Cal. 510. 
 
 § 215. Nominal Damages. It is held in England, 
 where there is an absence of proof of any pecuniary 
 injury to the beneficiaries, not even nominal damages can 
 
 1 Lawrence, etc., R. R. Co. v. Lett, 48 Fed. Rep. 57 ; Taylor B. & H. Rail- 
 11 Can. Sup. Court Rep. 422; 26 Am. way Co. v. Warner, 84 Tex. 122; 20 
 &Eng.R. R. Cases, 454, affirming 11 S. W. Rep. 449 ; Green v. Railway 
 °?^?rTi*PP- ^:. Co., 2 Abb. Dec. 277; Pa R. R. Co. 
 
 2 Webb V. Railway Co., 7 Utah 363. v. Goodman, 62 Pa. St. 329. 
 
 3 Gillardv. Railway Co.,12L.T. 356; * Mo. Pac. R, R. Co. v. Bond, 2 Tex. 
 A. T. & S. F. R. R. Co. V. Wilson, Civ. App. 104. 
 
397 DAMAGES FOR DEATH BY WRONGFUL ACT. i 216 
 
 be recovered.^ And where there is an absence of any 
 proof of pecuniary loss the defendant is entitled to a 
 judgment. 
 
 The same rule prevails in Michigan.' 
 
 In the United States, "as a general rule where the 
 law gives an action for a wrongful act, the doing of the 
 wrongful act itself imports damage, and even if no actual 
 pecuniary damage may have been shown or suffered, 
 still the legal implication of damages follows the wrong- 
 ful act and nominal damages may be recovered.*" 
 
 In Ihl V. Street Ry. Co. 47 N. Y. 317, the Supreme 
 Court of New York laid down the following rule with 
 reference to nominal damages: "The absence of proof 
 of special pecuniary damages to the next of kin resulting 
 from the death of the child would not have justified the 
 court in non -suiting the plaintiff or in directing the jury to 
 find only nominal damages. It was in the province of 
 the jury who had before them the parents, their position 
 in life, the occupation of the father, the age and sex of 
 the child, to form an estimate of the damages.'"^ 
 
 § 21t3. 3Ieiital and Physical Suffering- of Deceased. 
 
 It often becomes a question whether, in actions for dam- 
 ages for negligently causing the death of a person, the 
 plaintiff is entitled to recover anything for physical pain 
 and mental anguish suffered and endured by the deceased 
 between the date of the accident and that of his death. 
 Whether he may recover anything or not depends upon 
 the statute of the state providing for an action of this 
 kind. Where the statute provides that an action may be 
 brought by the personal representative of the deceased 
 and fixes the ground of recovery the same as the 
 deceased might have recovered under such statute, 
 physical pain and mental suffering may become 
 elements of damage to be considered by the jury. The 
 amount of recoveiy in an action of this kind is different 
 
 I Boulter V. Webster, 11 L. T. 598. 7 Am. Rep. 450; Richmond, etc., 
 
 2Burke v. Railway Co. 4 I.. R.J. R. R. Co. v. Freeman, 97 Ala. 289; 
 
 R. 682, Lockwood v. Railway Co., 98 N. Y. 
 
 'Hurst V. Detroit City R. R. Co., 523; Corliss v. Wooster Rail-way Co., 
 
 84 Mich. 539. .63 N. H. 404. 
 
 ^Atchison, etc., R. R. Co. v. Web- * See also Mclntvre v. Railway Co., 
 
 ber, 33 Kan. 543 ; 52 Am. Rep. 543 ; 37 N. Y. 287 ; Birkett v. Knicker- 
 
 Chicago V. Scholten, 75 111. 468; Ihl booker Ice Co., HO N. Y. 504. 
 V. Railway Co., 47 N. Y. 317; 
 
i 216 DAMAGES FOR DEATH BY WRONGFUL ACT. 398 
 
 and distinct from a right of action furnished by the 
 statute for the benefit of the widow and next of kin, 
 which is based on a pecuniary injury sustained by such 
 beneficiaries on account of such, death. 
 
 Where damages may be recoverd for physical pain and 
 suffering, such damages are for the benefit of the estate 
 of the deceased and are distributed when recovered 
 according to the statute of descent and distribution ; and 
 if the next of kin a.nd beneficiaries are the same parties, 
 then the amount recovered in the action is distributed as 
 provided by law and goes to the same individuals/ But 
 if the beneficiaries and next of kin are under the statute 
 different and distinct persons, then the amount re- 
 covered for physical pain and the amount recovered by 
 the beneficiaries is distributed as provided hj law. 
 
 Under the statute of Connecticut, the damages are 
 awarded or made up from the injury sustained by the 
 deceased and not from the pecuniary loss to his benefi- 
 ciaries named in the statute, although they are to 
 receive the benefit of such damages when they are 
 awarded.^ 
 
 This same rule was recognized and laid down in Iowa 
 in the ease of Muldowney v. Railway Co., 36 Iowa 462, 
 where, after the action was commenced, the injured per- 
 son died and an administrator was substituted as plain- 
 tiff. Compensation for bodily pain and mental suffering 
 was allowed as one of the elements of damages. But this 
 rule seems not to be accepted by the federal court.' 
 
 In Kansas, the personal representative is entitled to 
 recover the same amount of damages for physical pain 
 and suffering endured by the deceased as he might have 
 recovered had he survived and brought the action.* The 
 same rule is laid down in Kentucky, Louisiana, Massa- 
 chusetts, South Dakota and Oregon.'* 
 
 iRenihan v. Wright, 125 Ind. 534; SLouisville, etc., R. R. Co. v. Con- 
 
 9 I'- ^- A- 514. ifif, 90 Ky. 560; Louisville, etc., R. 
 
 -iGoodsell V. Railway Co., 33 Conn. R. Co. v. Earle, 94 Ky. 368; Hans- 
 
 31; Quinn v. Johnson Forge Co., 9 ford v. Payne, 11 Bush (Ky.) 380; 
 
 Hous. (Del.) 338; Murphy V. Railway Mulcahey v. Washburn Car Wheel 
 
 s'J^S°^^- '^^'^:, Co., 145 Mass. 281; 1 Am. St. 458; 
 
 "Kelley v. Railway Co., 48 Fed. Ladd v. Foster, 31 Fed. Rep. 828; 
 
 * Atchison, i 
 56 Kan. 411. 
 
 ^fP-.""?- , „ „ ^ Belding v. Railway Co., 3 S. D. 869. 
 
 * Atchison, etc., R. R. Co. v. Rowe, 
 
399 DAMAGKS FOR DEATH BY WRONGFUL ACT. g 21& 
 
 It must be borne in mind that in all these states, the 
 statute expresslj- provides that the plaintiff may recover 
 such damages as the decedent might have recovered had 
 he lived and the right of recovery is based upon this 
 peculiar provision of the statute. 
 
 In Mississippi, under the statute in that state, two 
 causes of action arise ; one is given for the benefit of the 
 widow or other survivor of the deceased person and is 
 confined to pecuniary damages which such paities have 
 sustained.^ 
 
 Section 1916 of the code however provides that an ad- 
 ministrator may bring an action and recover damages 
 such afe deceased might have recovered. This latter pro- 
 vision is a rig'ht of action to the personal representative 
 of the decedent and is separate and distinct from the 
 former section. Under such section, he might recover 
 for not only physical pain and suffering which the de- 
 cedent endured, but also for loss of time, and medical ex^ 
 penses.^ 
 
 Under the statute in New Hampshire, the damages 
 which may be recovered are limited to the suffering of 
 the deceased before his death and do not extend to the 
 injuries sustained by or to the next of kin.^ 
 
 Under See. 12, Chap. 191, of the public statutes of 1891, 
 (N. H.) it provides that in an action by the administrator 
 of the deceased party, "the mental and physical pain suf- 
 fered by him in consequence of the injury, the reasonable 
 expenses occasioned to his estate by the injury, the prob- 
 able duration of his life, but for the injury, and his ca- 
 pacity to earn money, may be considered as elements of 
 damages in connection with other elements allowed by 
 law." 
 
 And in Corliss v. Railway Co., m N. H. 404, the court 
 held that the plaintiff might recover as damages in addi- 
 tion to the expenses of board, nursing, medical attend- 
 ance, loss of time, physical and mental suffering, such a 
 sum as the jury may think should be given for the dis- 
 tress and anxiety of mind endured by the deceased in 
 view of approaching death, during the time that he was 
 in great danger from the injury, to the end of his life. 
 
 1 Sec fifi.S of the Code of 1892. "Clark v. Manchester, 62 N. H 577; 
 
 'licksburgh etc R R Co. v. 13 Atl. Rep. 867 ; Corliss v. Railroad 
 Phillips, 64, Miss. 693. Co., 63 N. H. 404. 
 
i 216 DAMAGES POR DEATH BY WRONGFUL ACT. 400 
 
 The Tennessee statute originally provided that where 
 a person's death is caused by the wrongful act, fault or 
 omission of another, and suit is brought for damages, the 
 party suing shall, if entitled to damages, have the right 
 to recover for the mental and physical suffering, loss of 
 time and necessary expenses resulting to the deceased 
 from the personal injury ; also the damages resulting to 
 the parties for whose benefit and use the right of action 
 survives on account of the death. Under this statute 
 the administrator may recover such damages as the de- 
 ceased might have recovered including damages for pain 
 and suffering endured by the deceased.^ 
 
 Where the statute provides, however, that the recovery 
 shall be limited to the pecuniary injury sustained by the 
 widow or next of kin or other survivor's of the deceased, 
 physical pain and mental suffering endured by the de- 
 ceased shall not be considered by the jury at all, in mak- 
 ing up the award of damages, and any evidence of such 
 suffering in an action under the statutes of these several 
 states would be error; as it would tend to create a sym- 
 pathy for the plaintiff and those for whom the action is 
 brought, to the prejudice of the defendant. 
 
 The sole question for consideration, where this statute 
 prevails, is the pecuniary injury, that is, the injury as 
 estimated in dollars and cents, which it is necessary to 
 pay for the loss which the beneficiaries have sustained by 
 reason of the death. ^ 
 
 But in Michigan since the decision in 59 Mich., the 
 statute has been changed so that two causes of action 
 exist in that state, one which may be brought for the ben- 
 efit of the estate, and the other for the benefit of the ben- 
 eficiaries." 
 
 1 Tenn., etc., R. R. Co. v. Toppins, Mynning v. Railroad Co., 59 Mich. 
 
 10 Lea, (Tenn.) 58; East Tenn., etc., 257; Tobin v. Railroad Co., (Mo.) 18 
 
 R. R.Co. V. Mitchell llHeisk. (Tenu), S. W. Rep. 996; Dorman v. Railroad 
 
 400 ; Collms v. Railroad Co., 9 Heisk. Co , 1 N. Y. S. 334 ; Pa., etc., R. R. Co. 
 
 (Tenn.), 841; Sec. 3134 (Act 1883) v. Zebe, 33 Pa. St. 318; So. Cotton 
 
 fr,","^ Press Co. v. Bradley, 52 Tex. 587; 
 
 T„ „in *• -^^ ■^- ^°- '^- Baches, 55 Ewen v. Railroad Co., 38 Wis. 613 ; 
 
 111, 379 ; Maney v. Chicago, etc., R. R. Barron v. Railroad Co., 5 Wall. 900. 
 
 Co., 49 111. App. 105; Kan. Pac R. R. ^Hurst v. Railwav Co., 84 Mich. 
 
 Co. V. Cutter, 19 Kan. 83; Dwyer v. 539 ; Sec. 8313, How.' Stat, Sec. 3391. 
 Chicago, etc., R. R. Co., 84 Iowa, 478 ; 
 
401 DAMAGES FOR DEATH BY WRONGFUL ACT. 
 
 217 
 
 Whether two causes of action exist in any state de- 
 pends, of course, upon the statute which is subject to 
 amendment at any time and it would be well for the prac- 
 titioner always to examine these statutes, before bring-- 
 ing his action, to determine just what the statute is in 
 that respect. It may be, upon examination, that some of 
 the statutes herein referred to, as laying down the rule 
 one way or the other, have been modified by amendment. 
 
 In Ohio, damages for physical pain and suffering are 
 recoverable under the statute under the above rule.' 
 
 § 217. Proof of Physical Pain and Suffering. Where 
 it is proper to show and claim as an element of damage 
 the physical pain and suffering endured by the deceased, 
 evidence of such pain and suffering in consequence of the 
 injury, may be shown bj^ the testimony of eye witnesses 
 and by physicians who attended the deceased, and also 
 by the facts and circumstances surrounding the injury.^ 
 
 Such pain and suffering may be shown by the nature 
 of the injury and the extent and character of the suffer- 
 ing.' 
 
 Declarations of pain and suffering endured by the de- 
 ceased may, under some conditions and circumstances, 
 be received in evidence to show pain and suffering, but 
 as a general rule they are not admissible, and the pain 
 and suffering must be shown by some other evidence. 
 
 In Wisconsin, evidence as to the expressions of pain 
 uttered by the deceased was held admissible in an action 
 to recover damages for the death.* 
 
 Wherever the plaintiff is entitled to recover for physi- 
 cal pain and suffering endured by the deceased and there 
 was mutilation of the body, and the decedent lived for 
 some time after receiving the injury, it is sufficient sim- 
 ply to show that the decedent was mutilated by the in- 
 jury. The jury would be warranted under those circum- 
 stances in presuming and finding that he had suffered 
 pain.* 
 
 But where it appears from the evidence that the de- 
 ceased was unconscious from the time of the injury to 
 
 1 Sec. 6134, Ohio St.; Sec. 4975, Ohio ^ Lange v. Schoettler, 115 Cal. 388. 
 Rev. Satutes. iMcKeigue v. Jauesville, 68 Wis. 
 
 2 See Clark V.Manchester, 64 N.H. 50^ ^ ^ .. „ „, „ , ,-„ 
 ^72 6 Leahy V. Railway Co., 65 Cal. loU. 
 
 26 
 
g 218 DAMAGES FOR DEATH BY WRONGFUL ACT. 402 
 
 his death, no damages can be awarded for physical pain 
 and suffering/ 
 
 The fact that a person was unconscious and continually- 
 moaned from the time of the injury until his death, 
 would afford no basis for damages for physical pain and 
 suffering even if the person was mangled.^ 
 
 Where it appears from the evidence that the deceased 
 fell several feet, btruck the ground and became uncon- 
 scious and remained so until he died, damages for pain 
 and suffering endured by him cannot be recovered.' 
 . Where death was instantaneous, under the statute of 
 South Dakota, no damages for physical pain are recover- 
 able.' 
 
 § 218. Medical Expenses. In some states medical 
 expenses incurred during the period between the time of 
 the injury of the decedent and up to his death are held 
 very properly to be damages which may be recovered 
 against the party responsible for the injury. But a dif- 
 ferent rule prevails in other states. 
 
 In Maney v. Chicago Railroad Co., 49 111. 105, it was held 
 that the sole measure of damages was the pecuniary loss 
 of the widow or next of kin. Medical expenses, care and 
 nursing or other expenses incidental to the injury in try- 
 ing to effect a cure, were not recoverable. 
 
 The same rule was laid down in Holland v. Brown, 35 
 Fed. Rep. 43. But in Kennedy v. Railroad Co., 35 Hun. 
 (N. Y., an action was brought by the widow and mother to 
 recover for the negligently killing of her infant child. 
 She was entitled to the child's services, but was bound 
 to maintain and care for it and was personally responsible 
 for medical expenses and therefore entitled to recover 
 for the same.** 
 
 ' The Corsair, U5 U. S. 535. v. Railroad Co., 123 N. Y. 656 ; Murray 
 
 2 Tex., etc. R. R. Co. Lester, 75 v. Usher, 117 N. Y. 542; 23 N. E. Rep. 
 Tex. 56 ; Corcoran v. Railway Co., 564; Cleveland Railroad Co. v. Rowan, 
 133 Mass. 507; Cheatham v. Red 66 Penn. St. 393 ; Penn. R. R. Co. v. 
 River Line, 56 Fed. Rep. 248. James, 81 Penn. St. 194; Mayhew 
 
 3 Kennedy v. Stand. Sugar Refin- v. Burns, 103 Ind. 328; Penn. Co. v. 
 ery, 125 Mass. 90; Corcoran' v. Bos- Lilly, 73 Ind. 252; Augusta Factory 
 ton, etc R. R. Co., 133 Mass. 507. Co. v. Davis. 87 Ga. 648; Corliss v. 
 
 *Beldingv. Railway Co., 3 S. Dak. Railway Co!, 63 N. H. 404 ; Little 
 
 36P; 53N. W.Rep. 510. Rock, etc. R. R. Co. v. Barker, 33 
 
 « Upon the same subject see Cum- Ark. 350; Rains v. Railroad Co., 71 
 
 ing v. Railway Co., 109 N. Y. 95 ; Lang Mo. 164. 
 
403 DAMAGES FOR DEATH BY WRONGFUL ACT. J§ 219-220 
 
 But such expenses cannot be recovered where there is 
 no proof that the account for thein has been filed with 
 the administrator of the decedent as required by law and 
 within the time specified by the statute/ 
 
 § 219. Funeral Expenses. In an action for wrong- 
 fully causing the death of a person, expenses for funeral 
 and family mourning cannot be recovered as an element 
 of damage.^ 
 
 The same rule prevails in Oregon and no allowance can 
 be had for the expenses of an illness attending an injury 
 which caused the death or of the burial of the decedent.' 
 
 Expenses incurred by the person injured, for medicine 
 or for care and support between the date of the injury 
 and death, are not recoverable by the administrator in an 
 action for negligently causing death; neither can such 
 expenses, if paid by the defendant, be shown to mitigate 
 damages.* 
 
 Distinguished. But this rule does not apply where 
 the expenses of the funeral of the deceased were paid by 
 the beneficiaries or the parties for whose benefit a right 
 of action may be brought, or where such parties are 
 legally liable for such expenses. When either of the 
 foregoing conditions exist, funeral expenses may be con- 
 sidered as an element of damage and may be included in 
 the recovery.^ 
 
 § 220. Interest on Damages. The rule may be 
 regarded as settled and accepted by the entire weight of 
 authority that a verdict for damages only bears interest 
 from the time the verdict is rendered. The reason for 
 this is, that damages in this class of cases are unliqui- 
 dated und undeterminable and therefore there is no 
 amount upon which interest can be computed until the 
 damages are found. ^ 
 
 1 St. Louis, etc. R. R. Co. v. Sweet, ^ See authorities cited under Sec. 22; 
 
 63 Ark. 563. Bunyea v. Railroad Co., 19 D. C. 76; 
 
 ^Dalton V. S. E. Rd. Co., 4 C. B. Consolidated Traction Co. v. Hone, 
 
 N s 296 69 N. J. Law 275 ; Petrie v. Railroad 
 
 '^Holland v. Brown, 13 Sawyer, (U. Co , 29 S. C. 303; Hedrick v. BlWaco> 
 
 S.) 284; Illinois Central R. R. Co. v. 4 Washington, 400; Gulf, etc. R. R. 
 
 Barron, 5 Wall. (U.S.) 90; Penn. R.R. Co. v. Southwick, 30 S. W. Rep. 592. 
 
 Co. T. McCloskey, 23 Penn. St. 526. = Western R. R. Co. v. Young, 81 
 
 < Murray v. Usher, 1 17 N. Y. 543. Georgia, 397. 
 
? 221 DAMAGES FOR DEATH BY WRONGFUL ACT. 404 
 
 But in some states, the rule is laid down that the ques- 
 tion of interest rests in the discretion of the jury.' 
 
 In New York, the statute expressly authorizes that 
 interest maj be allowed in this class of cases. ^ 
 
 In some of the states, it is expressly provided by 
 statute that where death results as a consequence of the 
 injury, when damages are awarded, they shall bear 
 interest from the date of the death of the decedent.' 
 
 Interest is to be added to the damages and put in the 
 journal entry of the verdict.* 
 
 Where the plaintiff in his petition asks for damages at 
 a certain amount and the jury find the damages and the 
 full amount named in the petition, interest cannot be 
 added to the verdict, although the statute provides 
 therefor.^ 
 
 The New York statute does not apply to a case where 
 the injury occurred and death followed in another state." 
 
 § 221. Limitation of Amount Recoverable. In 
 
 many of the states the statute fixes the amount which 
 may be recovered for negligently causing" the death of a 
 person. In such cases no larger sum can be obtained.' 
 But if there is no statute fixing the limitation of the 
 amount recoverable in the state where the accident 
 occurred, there is a limitation to the amount of recovery 
 in a state where the amount is fixed and action brought.' 
 England. The statute of England provides that in 
 assessing damages, "the jury may give such damages as 
 they may think proportioned to the injury resulting from 
 such death." 
 
 New Brunswick., Nova Scotia, and Ontario have similar 
 provisions as to the amount of damages to be awarded. 
 
 Quebec. A recovery may be had for "all damages 
 occasioned by such death." 
 
 Alahama. " Such damages as the jury may assess." 
 Sees. 2588, 2589, Code 1887. 
 
 ' See Western; etc. R. R. Co. v. ^ Robostelli v. N. Y. R. R. Co., 34 
 
 McCauley, 68 Georgia, 818. Fed. Rep. 719. 
 
 2 Cooke V. N. Y. Central R. R. Co., ^Kiefer v. Railroad Co., 12 N. Y. 
 
 10 Hun. N. Y. 426. App. Div. 28. 
 
 8 See Cornwall v. Mills, 44 N. Y. ' Black on Accidental Cases. 
 
 Superidr Court, 45. b Wooden v. Railroad Co., 126 N. Y. 
 
 * Manning v. Port Henry Iron Ore 10, 13 L. R. A. 458. 
 Co., 91 N. Y. 664. 
 
405 DAMAGES FOR DEATH BY WRONGFUL ACT. 
 
 221' 
 
 Arizona. "The jury may give such damages as they 
 
 ?^^x. , J^^P^^S^^'^^^^^^ ^^ *^® i°J"^T resulting from such 
 death." Sec. 2155, Rev. Stat., 1887. 
 
 Maryland. Same. Sec. 2, Art. 67, Gen. Pub. Laws. 
 
 South Carolina. Same. Sec. 2184, Gen. Stats., 1882. 
 
 Texas. Same. Art. 2909, Sayles Civil Stat. 
 
 Arkansas. "The jury may give such damages as they 
 shall deem a fair and just compensation with reference 
 to the pecuniary injuries resulting from such death." 
 Sec. 5226, Mansf. Dig. 
 
 Illinois. Same. Sec. 2, Ch. 70, 1 Starr & C. Ann. Stat. 
 
 Michigan. Same. Sec. 8314, How. Stats. 
 
 Montana. Same. Sec. 982, p. 911, Comp. Stat. 1888".. 
 
 Nehi^aska. Same. Sec. 2, Ch. 21, Comp. Laws 1881. 
 
 Maine. "Such sum as the jury may deem reasonable- 
 as damages." Sec. 80, Ch. 18, Rev. Stat., 1883. 
 
 California. "Such damages may be given as, under 
 all the circumstances of the case, may be just." Sec. 377,. 
 Code Civ. Pro. 
 
 Idaho. Same. Sec. 4100, Rev. Stat., 1887. 
 
 Montana. Same. Sec. 14, p. 62. Comp. Stat., 1888. 
 
 Utah. Same. Sec. 3179, Comp. Laws 1888. 
 
 Colorado. ' ' The jury may give such damages as they 
 may deem fair and just, not exceeding $5,000, with refer- 
 ence to the necessary injury from such death, and also 
 having regard to the mitigating or aggravating circum- 
 stances, attending such wrongful act, neglect, or default. ■" 
 Sec. 1032, Genl. Stats., 1883. 
 
 Missouri. Same. Sec. 4427, Rev. Stat., 1889. 
 
 Connecticut. "Just damages not exceeding $5,000." 
 Sec. 1009, Genl. Stat., 1888. 
 
 Delaware. "May maintain an action for, and recover 
 damages for, the death thus occasioned." Page 644, Rev. 
 Code, 1852, as amended by laws of 1874, p. 644. 
 
 District of Columbia. " Such damages shall be assessed 
 with reference to the injury resulting from such act, neg- 
 lect or default causing such death." Act of Congress, 
 February 17, 1885. 
 
 Florida. " The jury shall give such damages as the 
 parties entitled to sue may have sustained by reason o*" 
 
g 221 DAMAGES FOR DKATH BY WRONGFUI/ ACT. 406 
 
 the death of the party killed." Sec. 2, No. 27, Laws of 
 1883. 
 
 Georgia. "The full value of the life of the deceased as 
 shown by the evidence, without any deduction for neces- 
 sary or other personal expenses of the deceased had he 
 lived." Sec. 2971, Code, 1882, as amended by laws of 
 1887. No. 588, p. 43. 
 
 Indiana. Damages cannot exceed $10,000. Sec. 284, 
 Bev. Stat., 1881. 
 
 Kentucky. "May recover damages in the same manner 
 that the person himself might have done for any injury 
 -where death did not ensue." Sec. 1, Ch. 57, Gen. Stat. 
 
 Louisiana. ' ' May also recover the damages sustained. " 
 Art. 2315. Civ. Code, as amended bv Act No. 71, 1884, p. 
 '94. 
 
 Mississippi. "The jury may give such damages as 
 sliall be fair and just, with reference to the injury result- 
 ing from such death." See. 663, Code 1892. 
 
 Massachusetts. Railroad corporations liable for all 
 damages not less than $500 nor more than S5,000. Sees. 
 212 and 213. Chap. 112, Pub. St. 1882. Ch. 140, St. 1886. 
 Municipal corporations liable in damages not exceeding 
 SI, 000. Ch. 52, Pub. St. 1882. 
 
 Minnesota. " Damages therein cannot exceed $5,000." 
 Sec. 1, Ch. 123, Laws 1891. 
 
 Nevada. "The jury in every such action may give 
 such damages, pecuniary and exemplary, as they shall 
 deem fair and just, and may take into consideration the 
 pecuniary injury resulting from such death to the kindred 
 as herein named." Sec. 3899, Gen. Stat., 1885. 
 
 Neio Mexico. Same. Comp. Laws 1884, as amended by 
 Laws of 1891. Sec. 2310, Ch. 49. 
 
 New Hampshire. "The damages recoverable in any 
 such action shall not exceed $7,000." Sec. 11, Ch. 191, 
 Pub. St. 1891. 
 
 New Jersey. "The jury may give such damages as 
 'ihey shall deem fair and just with reference to the pecu- 
 iary injury resulting from such death." See. 2, p. 294, 
 ^v. 1878. Sec. 2, p. 1188, Vol. 1, Gen. Stat. 
 'Vermont. Same. See. 2139, Rev. Laws 1880. 
 '\sconsin. Same. Sec. 4256, Rev. Stat. 
 
407 DAMAGES FOR DEATH BY WRONGFUL ACT. § 221 
 
 Neio York. Damages not exceeding $5,000, as the jury 
 or court deems "to be a fair and just compensation for 
 the pecuniary injuries resulting from the decedent's 
 death." Sec. 1904, Bank's Ann. Civ. Pro., 1888. 
 
 North Carolina. "The plaintiff in such action may re- 
 cover such damages as are a fair and just compensation 
 for the pecuniary injury resulting from such death." 
 Sec. 1499, Code 1823. 
 
 North Dakota. "Recover damages in the same man- 
 ner that the person might have done for any injury 
 where death did not ensue." " Recover damages for the 
 loss or destruction of life aforesaid. ' ' Sees. 5498-5499, 
 Comp. Laws. Const. N. D. Schedule, Sec. 2. 
 
 Soxith Dakota. Same. 
 
 Ohio. " The jury may give such damages as they 
 may think proportioned to the pecuniary injury result- 
 ing from such death not exceeding $10,000. " Sec. 6135, 
 Rev. Stat., as amended by act April 13, 1880. 
 
 Oklahoma. Damages eannnot exceed $10,000. 
 
 Oregon. "The damages therein shall not exceed 
 $5,000." 
 
 Pennsylvania. Actions against common carriers or 
 corporations owning or operating a railroad propelled by 
 steam, "only such compensation for and damages shall 
 be recovered as the evidence shall clearly prove to have 
 been pecuniarily suffered or sustained. " Sec. 7, p. 1268., 
 2 Brightly's Purd. Dig. 
 
 Rhode Island. " Damages for the injury caused by 
 the death of such person." Sees. 15-20, Ch. 204, Pub. 
 Stat. 
 
 Tennessee. "Damages resulting to the parties." Sec. 
 3134, Mill. & V. Code. 
 
 Virginia. "The jury may award such damages as to 
 it may seem fair and just." Sec. 2903, Code 1887. 
 
 West Virginia. " The jury shall give such damage as 
 they shall deem fair and just, not exceeding $10,000." 
 Sec. 6, Ch. 103, Code. 
 
 Wyoming. Same. Not exceeding $5,000. 
 
 Washington. "The jury may give such damages 
 pecuniary or exemplary, as under all the circumstances 
 
? 222 DAMAGES FOR DEATH BY WRONGFUI. ACT. 408 
 
 of the case, may to them seem just." Sec, 138 (8) Hill's 
 Ann. Stat, and Code. 
 
 § 222. Joinder of Causes of Action. It may still be 
 a question whether the causes of action, authorized 
 by statute, for damages for pecuniary loss sustained by 
 the injury of a person where death results and brought 
 by the person designated by the statute may include also 
 the cause of action for physical pain and mental suffer- 
 ing.' 
 
 In the former cause the action refers to the damages 
 for pecuniary loss recoverable by the beneficiary or the 
 next of kin or the person specifically named in the 
 statute.^ 
 
 In the latter cause the damages, if any, which may be 
 recovered belong to the estate of such deceased person. 
 In Ohio, where the Code practice prevails, causes of 
 action may be joined both for injury to the person or 
 property.' 
 
 This question may still be regarded as unsettled for 
 the reason pointed out in Richmond v. Railway Co., 87 
 Mich. 374 (49 N. W. Rep. 621). 
 
 There would seem to be a good reason why the causes 
 of action may be joined when both actions must be 
 brought by the same person, the personal representative 
 of the estate, and the judgments to be recovered are dis- 
 tributed to the same parties, if the same evidence will 
 establish a liability in each case.* 
 
 These causes of action are however separate and dis- 
 tinct and the administrator may avail himself of either 
 one.' 
 
 There are some authorities which hold that a recovery 
 by 9,n administrator would be a bar to another action." 
 
 iTiflfany on Death by Wrongful Act, pra ; Tregent v. Maybe, 54 Mich. 226 ; 
 
 Sees. 126 and 127. Bears v. Preston, 66 Mich. 11. 
 
 2 Hurst V. Railway Co., 84 Mich. * Davis v. Railway Co., 53 Ark. 117; 
 
 539; 48 N. W. 44. 13 S. W. 801 ; Hurst v. Railway Co., 
 
 = Sees. 5019 and 5020, Rev. Stat. ; 84 Mich. 539 ; City of Brussels, 6 Ben. 
 
 Railroad Co. v. Cook, 37 Ohio St 370; Witiegar's Admr. v.Cent.Pass.Ry. 
 
 265. See Corliss V. Railway Co., 63 Co., 85 Ky. 547; 4 S. W. Rep. 237 ; Brad- 
 
 N. H. 404. shaw v. Railway Co., 1, Q. B. D. 599; 45 
 
 " Mayhew v. Burns, 163 Ind. 328 ; 2 L. J. 25, 557 ; Pullman v. Railway Co.', 
 
 N. E. 753; Railroad Co. v. Cook, su- 9 Q. B. D. 110. 
 
 'Liltlewood v. Major, 89 N. Y. 24. 
 
409 DAMAGES FOR DEATH BY WRONGFUL ACT. JJ 223-224 
 
 This question depends, however, largely upon the stat- 
 ute of the state where the accident occurred, as illus- 
 trated by the following decisions. ^ 
 
 This method of procedure is based upon a specific stat- 
 ute creating and recognizing such separate actions.' 
 
 In Massachusetts both actions may proceed independ- 
 ent of each other at the same time.^ 
 
 One action is a new cause of action, the other is the 
 survival of an original cause.* The latter abates by 
 death of the wrongdoer.^ 
 
 If the actions cannot be joined and a recovery had for 
 both elements of damages a recovery in one cause of ac- 
 tion should not be held to be a bar to another. action for the 
 element of damage not embraced in the former action. 
 
 § 223. Statute of Liimitations. The time within 
 which to bring and maintain an action for damages for 
 the death of a person is governed and determined by the 
 statute of the state where the injury was received and 
 not by the statute of the state where the action may be 
 brought." 
 
 § 224. Law of Distribution. Whenever an action is 
 brought in another state than where the injury occurred, 
 for negligently causing death, any judgment which maybe 
 recovered is distributed according to the laws of the state 
 where the accident happened. The locus of injury deter- 
 mines the manner of distribution according to the specific 
 provisions of the statute creating the liability or of the 
 general laws of distribution of property.' 
 
 In this last case a distinction is pointed out that there 
 is an inconsistency arising in the right to a recovery and 
 
 ^Hedrick v. Ilwaco Ry. Co. & Nav. 2 Bowers v. Boston, 155 Mass. 334, 15 
 
 Co., 4 Wash. 400,30 Pac. 714; Hartigan L. R. A. 365, Pub. St., Ch. 165, Sec. 1. 
 
 V. Southern Pac. Ry. Co., S6 Cal. 142; ^Boweriv. City of Boston, 155 Mass. 
 
 Putnam v. Southern Pac. Ry. Co.. 27 344 ; 29 N. E 633. 
 
 Pac. 1033; Legg v. Britton, 64 Vt. 652, ^Littlewood v. Major, 89 N Y. 24. 
 
 24 Atl. R. 1016. This last case was ^RusseU v.Sunbury,37 0hio St. 372; 
 
 one where the action had been com- Hamilton v. Jones, 125 Ind. 176; 25 
 
 menced by the decedent in hislifetime N. E. 192.- 
 
 and which would include naturally all ^The Harrisburg, 119 U. S. 199. 
 
 the elements ol damages. The case ' Missouri & Pac. Rd. Co. v. Lewis, 
 
 could not be accepted as applying to 24 Neb. 848, 2 L. R. A. 75 ; Dennick v. 
 
 general rules. Vicksburg, etc., Rd. Railway Co., 103 U. S. 11 ; Richmond 
 
 Co V. Phillips, 64 Miss. 693; 2 South. v. Chicago & West. M. Rd. Co., 87 
 
 537 ; Needham v. Railway Co., 38 Vt. Mich. 374, 403 ; 49 N. W. Rep. 621. 
 294. Disapproved, Legg v. Britton, 64 
 Vt. 652, 24 Atl. 1016. 
 
^§ 225-226 DAMAGES FOR OEATH BY WRONGFUL ACT. 410 
 
 distribution of a judgment by those who have suffered a 
 pecuniary loss and the judgment obtained for the estate 
 of the deceased because there might be a difference be- 
 tween the parties suffering a pecuniary loss and those 
 entitled to a judgment distributed to them by law.' 
 
 § 225. Pi-oceedings in Admiralty for the Recovery 
 of Damages — Wlien not Maintainnble. A t the common 
 law the rule was established that no action could be main- 
 tained for damages for the death of a person. The same 
 rule was recognized and enforced in admiralty.'^ 
 
 And it was generally held by the court in admiralty as 
 a settled rule that the court would not entertain an action 
 for damages in rem for the death of a person, independ- 
 ent of some statutory provision, creating a liability 
 against watercrafts. If there is no statute of the state 
 where the accident occurred creating and enforcing such 
 lien, an action could not be brought.' 
 
 But some of the courts of admiralty have entertained 
 jurisdiction independent of any statute.* 
 
 § 226. Proceedings in Admiralty. Where Main- 
 tainable and When. An action to recover damage for 
 negligently causing the death of a human being may be 
 maintained and enforced in admiralty, if there is a stat- 
 ute in the state where the injury occurred creating a lien 
 upon vessels and authorizing an action for that purpose. 
 The right to sustain such action depends upon such stat- 
 ute. This is the settled rule where the person sustain- 
 ing an injury in an accident resulting in death is not a 
 seaman.^ 
 
 This action may be brought in any court where process 
 can be obtained upon the vessel." 
 
 But the right to maintain it is governed by the statute 
 where the injury occurred and by the statute limiting the 
 time to bring such action.' 
 
 1 Richardson v. Railway Co., 98 TifiFany, "Death by Wrongful Act," 
 
 Mass. 81 ; see also Sees. 6135, 4159, Sec 204. 
 
 4163. Ohio Rev. Stat. 6 The Harrisburg, 119 U. S 199; 
 
 'The Harrisburg, 119 U. S. 199; The City of Carlisle, 39 Fed. Rep. 807, 
 
 The Alaska, 130 U. S. 201. 54 L. R. A. 52; The Maggie Ham- 
 
 3 The Harrisburg, supra. moud, 9 Wall. 162 ; The A Heaton, 43 
 
 * The Sea Gull Chaae. Dec. 145 ; Fed. Rep. 592 ; authorities cited, p. 
 
 The E. B. Ward, 17 Fed. Rep. 456, 596 ; The Alaska, 130 U S. 201. 
 
 23 Fed. Rep 900; The Columbia, 27 « The Harrisburg, 119 U. S. 199. 
 
 Fed. Rep. 704; 23 Fed. Rep. 900; 'The Harrisburg, 119 U. S. 199. 
 
41 I DAMAGES FOR DEATH BY WRONGFUL ACT. J 227 
 
 Where the injury was to a seaman, a different rule seems 
 to have been, adopted and enforced for a long time, but 
 the recent decisions have overruled or greatly modified 
 the rule, to-wit : that a seaman had no cause oJE action in 
 rem against the vessel for negligent injuries. Against 
 such right of action, see cases cited.' 
 
 But the following decisions have sustained such 
 actions.^ 
 
 But the right, however, to maintain this action is set 
 at rest by a recent decision of the United States court, 
 where it is held that an action by a seaman cannot be en- 
 forced in admiralty against the vessel unless there is 
 a specific statute of the state where the injury occurred 
 creating a lien against vessels for any negligent injury to 
 the person.' 
 
 There seems to have been no clear and satisfactory 
 reason given why a seaman was held to have no cause of 
 action where he had been injured from negligence, except 
 that all persons employed on a vessel were fellow serv- 
 ants. This position was more consistent, when the 
 power of steam had not been utilized and applied as a 
 propelling power. The use of steam has required the 
 employment of seamen with different degrees of skill and 
 ability, and the rule should be modified to meet these new 
 conditions, and risks of employment unknown to the com- 
 mon law. 
 
 § 227. Verdicts For Death of Minors. 
 
 $2,000. Death of plaintiff's daughter five years old, a 
 bright and healthy child. Huerzeler v. Railroad Co., 20 
 N. Y. S. 676. 
 
 $2,000. A verdict for S2,000 for killing a boy eighteen 
 months old not excessive. Schrier v. Railroad Co., 65 
 Wis. 457. 
 
 §2,300. Death of child five years and ten months. 
 Strutzel V. City R. Co., 47 Minn. 543. 
 
 1 The Highland Light, Chase. Dec. 52, note ; The Mary Morris, 137 U. S. 
 151; The Sylvan Grove, 9 Fed. 335. 1 ; The Sea Gull, Chase, Dec. 146. 
 
 2 Holmes v. Oregon & C. Ry. Co., 5 ^Xhe Corsair, 145 U. S. 335, 12 Sup. 
 Fed. Rep. 75; Ex parte Detroit River Ct. Rep. 949; The Oregon, 45 Fed. 
 Ferry Co., 12 Fed Rep. 524 ; City of Rep. 62 ; The Alaska, 130 U. S. 201. 
 Carlisle, 23 Fed. Rep. 900, 5 L. R. A. 
 
? 227 DAMAGES FOR DEATH BY WRONGFUL ACT. 412 
 
 $2,500. A healthy, sprightly boy five years old, Ross 
 V. Railroad Co., 44 Fed. Rep. 44. 
 
 $2,500. Boy five years old. Johnson v. Railway Co., 
 64 Wis. 425; 25 N. W. 223; 25 Am. & Eng. Rd. Cas. 338. 
 
 $10,500. For five young children ranging from five to 
 sixteen years, not excessive. Nehrbas v. Railroad Co., 
 62 Cal. 320; 14 Am. & Eng. R. Cases, 670. 
 
 $5,000. For a daughter six years old, healthy and 
 bright; father a gardener in moderate circumstances; 
 held not excessive, Ilooghkirk v. Delaware & H. Canal 
 Co., 63 How Pr. (N. Y.) 328. 
 
 $4,500. Held excessive for the death of a child five 
 years old. Little Rock & Ft. S. R. Co. v. Barker, 33 Ark. 
 350. 
 
 $2,000. Held excessive for death of an infant child; 
 verdict set aside. Morgan v. Railroad Co., 95 Cal. 510; 
 54 Am. & Eng. R. C. 101. 
 
 $2,000. Sustained for death of a four year old child, 
 where there were three other children. Moskowitz v. 
 Lighte, 68 Hun. (N. Y.) 102. 
 
 $1,000. For an infant four months old. City of Joliet 
 V. Weston, 22 111. App. 225. Affirmed 123 111. 641; 14 N. 
 E. 665. 
 
 $2,000. Each for a boy one year old and another three. 
 Chic, M. & St. P. R. Co. v. Wilson, 35 111. App. 346. 
 
 $3,750. For a child three years old. Chic. & N. W. 
 Ry. Co. V. Des Lauriers, 40 111. App. 654. 
 
 $2,000. For death of a child. City of Vicksburg v. 
 McLain, 67 Miss. 4. 
 
 $1,500. I^'or a son four years old. Held excessive; 
 new trial ordered. Lehman v. Brooklyn, 29 Barb. 234. 
 
 $1,000. For a healthy boy sixteen months old, whose 
 parents were poor. Hoppe v. Railroad Co., 61 Wis. 357. 
 
 $5,000. For seven year old son, is excessive to the 
 amount of $2,000. Riley v. Salt Lake Rapid Tr. Co., 10 
 Utah 428. 
 
 $5,000. For a bright, healthy and industrious boy. 
 Taylor B. &H. Ry. Co. v. Warner, (Tex. Civ. App.) 31 S. 
 W. Rep. 66. ^^ ' 
 
413 DAMAGES FOR DEATH BY WRONGFUL ACT. ? 227 
 
 $6,000. For a boy twenty-five months old. Austin 
 Rapid Tr. Ry. Co. v. CuUen, 29 S. W. Rep. 256 ; Ih., 30 S. 
 W. Kep. 578. 
 
 81,000. A daughter four and one-half years old; in 
 good health at the time of her death. The Oceanic, 61 
 Fed. Rep. 338. 
 
 $4,500. For a boy six years old will not be disturbed 
 although it seems large. Ahern v. Steele, 1 N. Y. S. 259, 
 12 Am. St. Rep. 778; 5 L. R. A. 440. Reversed on other 
 grounds, 115 N. Y. 203. 
 
 83,500. For a bright, healthy boy seven years old. 
 Heinz v. Brooklyn Heights Ry. Co., 36 N. Y. S. 675. 
 
 $] ,000. For a boy five years old. Ashtabula Tr. Co. 
 v. Dagenbaeh, 11 Circ. Dee. (Ohio) 307. 
 
 8375. Will not set aside as inadequate for a girl three 
 and one-half 3^ears old. Reger v. Rochester Ry. Co., 
 37 N. Y. S. 520. 
 
 $3,500. For a child; $1,235 being remitted. New trial 
 would not be granted on the ground of excessive verdict. 
 Myers v. City and County of vSan Hrancisco, 42 Cal. 215. 
 
 $2,000. For a daughter two years, is excessive where 
 the amount of recovery is limited to the actual pecuniary 
 injury sustained. Morgan v. Railway Co., 95 Cal. 510; 17 
 L. R. A. 71; 29 Am. St. Rep. 143. 
 
 8800. Is not excessive for negligently causing the 
 death of a child four years old. City of Chicago v. Hess- 
 ing, 83 111. 204. 
 
 $2,000. For the death of a child six or seven years old 
 caused by the negligence of a railroad in running at a 
 higher rate of speed than authorized. C. & A. R, Co. v. 
 Becker, 84 111. 483. 
 
 83,000. For a boy of eleven years and eight months, 
 whose parents were poor with three children, is not 
 excessive. Union Pac. Ry. Co. v. Dunden, 37 Kan. 1; 14 
 Pac. Rep. 501. 
 
 82,500. For a son, in an action by the father, is not 
 excessive. Consolidated Ice Machine Co. v. Keifer, 26 
 111. App. 466. 
 
 $1,500. Is not excessive for the death of an active and 
 strong girl eleven years old, under the statute. Cooper 
 V. Railway Co., 66 Mich. 261 ; U Am. St. Rep. 482. 
 
i 227 DAMAGES FOR DEATH BY WRONGFUL ACT. 414 
 
 $1,000. For a child nine years old, whose death was 
 caused by negligence, is not excessive. Illinois Cent. 
 Railway Co. v. Slater, 28 III. App. 73. 
 
 $3,500. is not excessive for the death of a child of a 
 widowed mother. San Antonio St. Railway Co. v. Watz- 
 lavzick, 28 S. W. Rep. 115. 
 
 $2,500. Is not excessive for the death of a boy twelve 
 years old. B. & O. S. W. Railway Co. v. Then, 59 111. 
 App. 561. 
 
 $2,250. Is excessive for negligently killing a rail- 
 road employe, eighteen years and three months, in good 
 health, and earning fifty dollars per month. Hickman v. 
 Railway Co., 22 Mo. App. 344. 
 
 $5,000. Was excessive for a boy ten years, whose 
 death was caused by falling under a street railway car, 
 and run over, on account of negligence. North Chicago 
 St. Railway Co. v. Wrixson, 51 111.' App. 307. 
 
 $1,800. Is excessive for causing the death of a child 
 where no claim for damages for loss of future services 
 was made. Penh. Railway Co. v. Lilly, 73 Ind. 252. 
 
 $5,000. Held excessive for negligently killing a son 
 eighteen years old, under the statute, in an action by the 
 parent, when there were no aggravating circumstances. 
 Parsons v. Railway Co., 94 Mo. 286. 
 
 $5,000. Held excessive for injuries causing the death 
 of a girl seventeen years old, earning ten dollars per 
 week on the average, when the evidence showed that she 
 contributed nothing towards the support of the family. 
 Chic. E. & L. S. Railway Co. v. Adamick, 33 111. App. 412. 
 
 $3,000. Is not excessive for the death of a young man 
 nineteen years old, in good health, whose earnings of 
 $2.25 per day contributed to the support of the family. 
 Chicago & E. Railway Co. v. Branvan, 10 Ind. App. 570 ; 
 37 N. E. Rep. 190. 
 
 $2,400. Sustained, where a boy, seventeen years old, a 
 compositor, earning four dollars per day, was negligently 
 killed, leaving his father, a poor man, with four younger 
 brothers and sisters. Post & Olmstead, 47 Ne>b."893 ; 66 
 N. W. Rep. 828. 
 
 $1,846.46. For a boy fifteen years, healthy and atten- 
 tive to business, earning four dollars per week, will be 
 
415 DAMAGES FOR DEATH BY WRONGFUL ACT. J 227 
 
 sustained. Franke v. City of St. Louis, 110 Mo. 516- 19 
 S. W. Rep. 938. ' 
 
 810,500. Is excessive as compensatory damages for 
 the death of a child under four years of age. Louisville 
 & N. Ry. Co. V. Creighton 20 Ky. L. Rep. 1808; 50 S. W 
 Rep. 227 ; Same v. Stock, lb. 
 
 82,000. Will not be regarded as excessive in an action 
 by a mother for the death of her daughter, sixteen years 
 of age, who had the capacity for earning money and"'upon 
 whom she largely depended for support. Wiltse v. Town 
 of Tilden, 77 Wis. 152; 46 N. W. Rep. 234. 
 
 $1,300. Will be sustained in an action by the mother 
 for her child of seven years old, although the damages 
 are principally prospective. Oldfield v. Railway Co., 3 
 E. D. Smith, (N. Y.) 103. 
 
 82,000. Is not excessive for a young man twenty years 
 and six months old. Rains v. Railway Co., 71 Mo. 164; 5 
 Am. & Eng. Rd. Cases, 610. 
 
 81,050. Is not excessive for the death of a child of 
 tender years. Nagel v. Railway Co., 75 Mo. 653; 10 Am. 
 & Eng. Rd. Cases, 702. 
 
 81,100. Sustained for the death of a child seven years 
 old. St. L., I. Mt. & S. R. Co. V. Freeman, 36 Ark. 41. 
 
 82,500. For a minor son, upon whom the care and sup- 
 port rested, is not excessive in an action by the father. 
 O'Fallen Coal Co. v. Laquet, 89 111. App. 13. 
 
 $8,000. Is not excessive for a girl eight years old, very 
 brigiit, whose death was caused by reason of a defective 
 bridge. Eginiore v. Union Co., 84 N. W. Rep. 758. 
 
 81,777. Will be sustained for the death of boy eight 
 years old. Citizens Ry Co. v. Washington, 58 S. W. 1042. 
 
 81,056. Is excessive in an action by a father, for a 
 minor son, when the father had not been heard from five 
 years prior to the accident and who did not support him. 
 Grieve v. Street Ry. Co., 47 Atl. Rep. 427. 
 
 83,750, Is not exorbitant for a bright, healthy boy of 
 seven years. Taylor B. & H. R. Co. v. Warner, 60 S. W. 
 Rep. 442. 
 
 87,500. Is not excessive for a boy of seventeen years, 
 who had an excellent character and was industrious. 
 
?? 228-229 DAMAGES FOR DEATH BY WRONGFUL ACT. 416 
 
 Southern Queen Mfg. Co. v. Morris, 105 Tenn. 654; 58 
 S. W. Rep. 651. 
 
 § 228. Verdicts for Death of Adults. 
 
 $10,000. Was not disturbed as excessive where it 
 appeared that deceased contributed $800 per year to his 
 family, and that his expectancy of life was twenty-flve 
 years. St. Louis & I. M. R. Co. v. Sweet, 60 Ark. 550; 31 
 S. W. Rep. 571. 
 
 • $10,000. For the death of a man thirty-eight years old, 
 in good health and earning fifty dollars per month, leaving 
 a wife and seven children, and whose expectancy of life 
 was twenty-nine vears. English v. Railway Co., 13 Utah, 
 407; 45 Pac. 47; 35 L. R. A. 155. 
 
 $5,000 Is excessive for a husband leaving a wife and 
 three children, where his earnings were uncertain and 
 variable. Klepsch v. Donald, 4 Wash. 436; 30 Pac. Rep. 
 991; 31 Am. St. Rep. 936. 
 
 $7,000. Is not exorbitant for a husband aged thirty- 
 five years, shipmaster, earning $100 per month, and leav- 
 ing a wife and two children. In re Humboldt, 60 Fed. 
 Rep. 428. 
 
 $5,000. Was not disturbed for the death of a ship's 
 cook, aged thirty-nine, earning fifty dollars per month, 
 and leaving a wife and three children. Humbolt L. & M. 
 Ass. V. Christopherson, 73 Fed Rep. 239, 19 C. C. A. 481. 
 
 $4,000. Is not excessive for an able-bodied seaman, 
 soberiand attentive to business, whose earnings for the 
 benefit of his family were $300 per year. Nickerson v. 
 Bigelow, 62 Fed. Rep. 900. 
 
 § 229. Verdicts to Surviving Husband or Wife. 
 
 $7,000. For a husband, ordinary laborer, thirty years 
 of age, earning about $400 per year, is not excessive. 
 Harkins v. Pullman Palace Car Co., 52 Fed. Rep. 724. 
 
 $2,500. For a husband earning $2.25 per day, aged 
 fifty-five years, will not be set aside, where it appears 
 that his family was dependent on his labor for support. 
 Annas v. Railroad Co., 67 Wis. 46, 30 N. W. Rep. 282, 58 
 Am. Rep. 848. 
 
 $12,000. Is not excessive where the husband was 
 killed through the negligence of the railroad, who earned 
 
417 DAMAGES FOR DEATH BY WRONGFUL ACT. j 229 
 
 frooa S55 to SlOO per month. International & G N R 
 Co. V. Ormond, 64 Tex. 485. 
 
 $8,000. Is not excessive where the deceased left an 
 invalid wife with a daughter. Cook v. Railway Co.. 60 
 Cal. 604. ^ 
 
 §14,000. Sustained where the deceased, highly edu- 
 gated, competent to instruct, and a devoted mother and 
 wife, and an excellent housekeeper, whose expectancy of 
 life was 31.8 years, left a husband and two minor children 
 under twelve years. Redfleld v. Street Ry. Co., 110 Cal. 
 277; 42 Pac. Rep. 822. 
 
 82,500. For the death of a husband, is not exorbitant. 
 Chicago & A. R. Co. v. Kelley, 28 ill. App. 655. 
 
 83,500. Is not excessive where the deceased, an in- 
 dustrious laboring man, left a wife and a young child. 
 He was an industrious laboring man. Conkling v. Tice, 
 1 N. Y. Supp. 803. 
 
 $5,000. Is excessive for the death of a man sixty-five 
 years old, leaving a wife fifty-four years, and a son, a 
 physician, thirty-five years old, living away from home. 
 Klemm \e| Railway Co., 28 N. Y. S. 861. 
 
 34,000. Is excessive for a widow and next of kin when 
 there is no proof as to next of kin and whether the 
 husband's death was a financial loss. Chicago City Ry. 
 Co. V. Gillam, 28 111. App. 386. 
 
 85,500. Will be sustained when the husband had an 
 expectancy of twenty years and an income of 81,000 per 
 year. Georgia Rd. Co. v. Pittman, 73 Ga. 325. 
 
 85,000. Is not excessive for the death of the husband 
 leaving a widow and two children, whose earning was 
 81.50 per day. B. & O. Rd. Co. v. Stanley, 54 111. App. 
 215. 
 
 85,000. Is excessive for the death of a shoemaker, 
 aged sixty-five years, leaving a widow and several child- 
 ren, the youngest of whom is nineteen years. Chic, B. & 
 Q. Ry. Co. V. Gunderson, 65 111. App. 638. 
 
 87,000. Not sustained for the death of wife, fifty-six 
 years old, where the only evidence was that she paid $360 
 per year for rent of house, and clothed her husband and 
 children. Nelson v. Railroad Co., 104 Mich. 582 ; 62 N. 
 W. Rep. 993. 
 
 27 
 
§ 229 DAMAGES FOR DEATH BY WRONGFUL ACT. 418 
 
 $5,000. Will be sustained where the deceased left a 
 wife and children surviving him, and he was a healthy- 
 man, about thirty-five, earning- good wages. Bolinger v. 
 R,ailroad Co., 36 Minn. 418 ; 31 N. W. Rep. 856 ; 1 Am. St. 
 Rep. 680. 
 
 $10,000. Is not excessive for the death of a strong, 
 sober and industrious man, thirty-five years old, earniii^ 
 $1.25 per day and leaving a wife and two infant childre* 
 Mo. Pac. Ry. Co. v. Lehmberg, 75 Tex. 61; 12 S. W. Rep. 
 838. 
 
 $9,750. Is not excessive, being a second verdict for 
 the death of a fireman thirty-two years old, earning $80 
 per month. Hammond v. Railroad Co., 12 Dec. (Ohio) 
 40. 
 
 $6,250. Sustained for the death of a healthy man, fifty- 
 five years of age, and whose wages were from $500 to 
 $1,200 per year. Paschal v. Owen, 77 Tex. 583; 14 S. W. 
 Rep. 203. 
 
 $5,000. Is not excessive for a widow with a seven year 
 old daughter, where the husband was earning. $125 per 
 month. St. Louis, A. & T. Ry. Co. v. Johnstoi^ 78 Tex. 
 536; 15 S. W. Rep. 104. 
 
 $11,000. Sustained for the death of a man forty-seven 
 years old, liealthy, whose earnings were sixty dollars and 
 more per month, where he left a wife and two children, 
 fifteen and sixteen years old. Tyler S. E. Ry. v. McMa- 
 hon, 34S. W. Rep. 796. 
 
 $3,800. Is not excessive for the death of a section 
 hand, thirty-three years old, in good health, when he had 
 previouslv supported his wife and children. 12 Tex. Civ. 
 App., 348. 
 
 $14,500. Sustained for the death of a man twenty-nfne 
 years old, a strong, healthy, industrious and reliable 
 brakeman, earning sixty-five doUai-s per month, leaving 
 a wife and one child. Gulf C. & S. F. Ry. Co v. John- 
 son, 10 Tex. Civ. App. ; 31 S. W. Rep. 255. 
 
 $4,500. Sustained for the death of a strong and robust 
 woman sixty-two years old, whose income was $1,800 per 
 year. San Antonio & A. P, Ry. Co. v. Lpng, 26 S. W. Rep. 
 
 $6,000. Is not excessive for a man thirty-two years 
 old, strong and healthy, whose earnings were more than 
 
419 DAMAGES FOR DEATH BY WRONGFUL ACT. 
 
 229 
 
 enough to support his family, where he left four children 
 the oldest twelve and the youngest four years. Texas & 
 P. Ry. Co. V. Hudman, 8 Tex. Civ. App. 309; 28 S. W. Rep. 
 388. 
 
 S16,000. For the death of an employe leavi-ng wife and 
 children, though large, was not set aside. San Antonio 
 & A. P. Ry. Co. V. Harding, 11 Tex. Civ. App. 497; 33 S. 
 W. Rep. 373. 
 
 85,000. Will be sustained for the death of a husband, 
 whose earnings averaged S125 per month who left a wife 
 and a seven year old daughter. St. Louis, A. & T. Ry 
 Co. V. Johnston, 78 Tex. 536; 15 S. W. Hep. 104. 
 
 S10,000. Is not excessive where the deceased, aged 
 twenty-nine years, was a strong, healthy man, an engin- 
 eer, and earning $125 per month. Texas & P. Ry. Co. v. 
 Geiger, 79 Tex. 13; 15 S. "W. Rep. 214. 
 
 39,000. Is not excessive for the death of an engineer 
 thirty-four years old, earning $140 to SI75 per month and 
 leaving a widow and five children, three to eleven years. 
 Bonner v. Whitcomb, 80 Tex. 178; 15 S. W. Rep. 899. 
 
 85,000. Is a proper verdict for the death of switch- 
 man, earning forty dollars per month of which his family 
 received $300 to S350 per year. Schultz v. Railway Co., 
 9 O. C. D. 816; 19 O. C. C. 639. 
 
 85,000. Sustained for killing a healthy 5^oung man, 
 twenty-three years of age, who lived with his parents 
 and their three minor children, and who contributed of 
 his earnings to their support. Toledo St. Ry. Co. v. 
 Mammet, 6 O. C. D. 244; 13 O. C. C. 591. 
 
 82,500. Is excessive for a woman sixty-eight years 
 old, of frail appearance, and suffering from heart disease, 
 with no evidence of the value of her services. Bond 
 Hill V. Atkinson, 9 O. C. D. 185; 16 (). C. C. 470. 
 
 88,000. Is not excessive for the death of a husband, 
 wh<i made a comfortable living for his invalid wife and 
 daughter twenty-three years old. Cook v. Railway Co., 
 60 Cal. 604; 26 Am. & Eng. Rd. Cases, 17. 
 
 85,000. Is not excessive for the death of the person 
 who was a superior woman as a wife and mother. Whiton 
 V. Railroad Co., 12 Wall. 270. 
 
 81,000. Sustained for the death of a married woman, 
 caused by the fracture of her ankle, necessitating, ampu- 
 
g 230 DAMAGBS FOR DEATH BY WRONGFUL ACT. 420 
 
 tation, from which death followed. City of Chicago v. 
 Kimball, 18 111. App. 240. 
 
 S5,000. Sustained for the death of the husband leav- 
 ing a wife and an infant. Sherman v Western Stage Co., 
 24 Iowa, 515. 
 
 $5,000. Sustained for negligent!}'- causing the death of 
 plaintiff's intestate, a woman sixty-three years of age, 
 where it appeared that the deceased lived with her hus- 
 band and daughter and did all the household work. 
 Liyons v. Railway Co., 35 N. Y. S. 372. 
 
 $7,500. Is excessive for the death of a woman sixty- 
 three years old, who did the household work for a family 
 consisting of her husband and three grandsons. Med- 
 inger v. Railway Co., 39 N. Y. S. 613. 
 
 $3,000, Is not excessive for the death of an unskilled 
 laborer flfty-flve years old, leaving a widow and seven 
 children. Mulcairns v. Janesville, 67 Wis. 24; 29 N. W. 
 Rep. 565. 
 
 § 230. Damages Recovered. When Excessive., 
 
 $7,000 and $5,000 respectively. For the death of the 
 master and cook of a schooner, both in good health at the 
 time and earning wages of $100 and $50 respectively, the 
 master being thirty-five and the cook thirty-nine years 
 old, not excessive. Humboldt Man. Association v. 
 ■Christopherson, 73 l'"ed. Rep. 239. 
 
 $9,395. Is excessive for a switchman twenty years old, 
 unmarried, healthy, sober, industrious, economical,' 
 forty years of age, earning $2.20 per day. McAdory v. 
 Railroad Co.. 94 Ala. 272. 
 
 $7,500. Is not excessive for a mair fifty-two years old, 
 drawing a -pension of $72 a month from the govern- 
 ment which he probably would have received during the 
 balance of his life. He was a man of industrious char- 
 acter and of an ordinary business capacity. St. L. & I. 
 M. R. R. Co. V. Maddry, 57 Ark. 306. 
 
 $10,000. Not sustained for the death of a day laborer. 
 Illinois Cent. R. R. Co. v. Ebert, 74 111. 399. 
 
 $3,000. Is excessive for the death of a mechanic twen- 
 ty years of age leaving and surviving him his mother and 
 six brothers, whose wages were $] .75 per da5^ Andrews 
 V. Bodecker, 17 111. App. 213. 
 
421 DAMAGES FOR DEATH BY WRONGFUL ACT. g 230 
 
 $5,000. Sustained for the death of the plaintiff's intes- 
 tate who was a fireman on the defendant's train. Wabash 
 Cent. Pac. R. R. Co. v. Shevers, 18 111. App. 52. 
 
 SI, 250. Is not excessive for the death of the plaintiff 
 intestate, an industrious man. Chicago, etc. R. R. Co. v 
 Blank, 24 111. App. 438. 
 
 $2,400. Is not excessive for causing the death of a 
 healthy, industrious man twenty-one years of age. Chi- 
 cago & A. Ry. Co. V. Adler, 28 111. App. 102. 
 
 $2,333.35. Sustained where death resulted. Jeifer- 
 sonville, M. & I. K. R. Co. v. Riley, 39 Ind. 568. 
 
 $1,000. Is not excessive for the death of a widower 
 seventy-three years old, strong and vigorous. City of 
 Wabash v. Carver, 129 Ind. 552. 
 
 $3,500. Is not excessive for the death of an industri- 
 ous carpenter who supported his family well, fifty-four 
 years of age and of good habits. The O. & M. R. R. Co. 
 V. Hill, 7 Ind. App. 255. 
 
 $4,500. Is not excessive for a man sixty years of age 
 in the enjoyment of reasonable health, of industrious 
 habits and possessed of some property. Walter v. Rail- 
 road Co., 39 Iowa, 33. 
 
 $5,000. Sustained for the death of a man twenty years 
 of age, without family, temperate, and of industrious 
 habits. Rose v. Railway Co. , 39 Iowa, 246. 
 
 $10,000. Is not excessive for the expectancy of the 
 life of the deceased forty-two years old whose earnings 
 were $650 annually. McDermott v. Railway Co., (Iowa) 47 
 N. W. Rep. 1037. 
 
 $8,000. Sustained for the death of a man whose ex- 
 pectancy of life was forty years and earnings $2.20 per 
 day. Haas v. Railway Co., 90 Iowa, 257; 57 N. W. Rep. 
 894. 
 
 $7,830. Is not excessive for negligently causing the- 
 death of a miner forty years old of sound body, good 
 health, capable of earning forty dollars per month. A.. 
 T. & S. F. R. R. Co. V. Hughes, 55 Kan. 491; 40 Pac. Rep.. 
 919. 
 
 $10,000. Is not excessive so as to indicate that the- 
 jury were influenced by prejudice or passion, for causing- 
 
? 230 DAMAGES FOR DEATH BY WRONGFUL ACT. 422 
 
 the death of a brakeman on a train. ' L. & N. R. R. Co. v. 
 Brooks, 83 Ky. 129. 
 
 $15,000. Sustained for the death of a healthy, intelli- 
 gent young woman, twenty-nine years old, whose eai-ning 
 was $2.50 a day and skilled in the work in which she 
 was engaged. L. & N. R. R. Co. v. Shivell, 17 Ky. L. Rep. 
 902, 18 S. W. Rep. 944. 
 
 $2,000. Is not an excessive verdict for the death of a 
 laboring man sixty-two years old and earning from $1.50 
 to $2.00 per day. Cline v. Railroad Co., 42 La Ann. 35. 
 
 $5,000. Sustained for the death of a person where 
 there was no evidence of misconduct or prejudice on the 
 part of the jury. Hobbs v. Hailroad Co., 66 Maine, 572. 
 
 $3,400. Will be regarded as excessive for killing an 
 employee of feeble intellect, a common laborer, earning 
 $1.40 per day. C. & N. W. R. R. Co. v. Bayfield, 37 Mich. 
 1^05. 
 
 $2,000. Held to be a proper verdict for the death of a 
 strong and healthy woman, fifty years of age, who re- 
 ceived for her services a dollar per day besides her 
 board. Mclntyre v. Railway Co., 47 Barber, 515. 
 
 $1,500. For the death of a widow, seventy-two years 
 old, in good health, strong and hearty, who did the work 
 of a family consisting of herself, son and daughter, sus- 
 tained. Wails V. Railway Co., 36 N. Y. S. 1102. 
 
 $8,000. Sustained for the death of a man earning four 
 dollars per day, industrious and sober in his habits, with 
 an expectancy of life of thirty years. Tenn. Coal & R. 
 R. Co. V. Roddy, 85 Tenn. 400 ; 5 S. W. Rep. 286. 
 
 $12,000. Is excessive for a man fifty-seven years of 
 age in declining health, whose monthly earnings were 
 small, and especially where deceased was guilty of con- 
 tributory negligence. L. & N. R, R. Co.' v. Stacker, 86 
 Tenn. 343 ; 6 Am. Rep. 840. 
 
 $12,000. Sustained where the verdict was not shown 
 to be the result of passion or prejudice. International 
 & G. N. Ry. Co, V. Ormond, 64 Tex. 485. 
 
 $15,000. Ts not excessive for the death of a young, 
 robust, skilled workman. East Line & R. R. Co "v Smith 
 65 Tex. 167. 
 
423 DAMAGES FOR DEATH BY WRONGFUL ACT. § 230 
 
 $10,000. Is not excessive for causing the death of a 
 man forty years old, in good health, an experienced rail- 
 road man, earning seventy-five dollars per month. Tex. 
 & Pac. R. R. Co. V. Robertson, 82 Tex. 657 ; 27 Am. St. 
 Rep. 929. 
 
 % Death of the Husband. 
 
 $4,000. Is not excessive for a husband thirty years of 
 age, temperate, industrious and earning fifty-five dollars 
 per month. Central Trust Co. v. Railway Co., 34 Fed. 
 Rep. 616. 
 
 35,000. Sustained for the death of the husband, a la- 
 boring man, thirty years of age, sober and industrious, 
 providing- for his family as best he could, leaving a widow 
 and six children. Howard Co. Comrs. v. Legg, 110 Ind'. 
 479. 
 
 $5,500. Will be sustained for the death of the hus- 
 band whose expectancy of life is twenty years with an 
 annual income of S1,000. Georgia Rv. Co. v. Pittman, 73 
 Ga. 328; 26 Am. & Eng. Rd. Cases 474"; 
 
 $6,000. For the death of a husband twenty- six years of 
 age, earning over SlOO per month, sustained where the 
 same verdict was obtained on a new trial the second 
 time. <Z!leveland v. Railway Co., 73 Ga. 793. 
 
 $7,000. Sustained for the death of a man thirty years 
 old, earning $400 per year. Harkins v. Car Co., 52 Fed. 
 Rep. 724. 
 
 $8,^000. Held excessive for causing the death of the 
 plaintiff's wife and infant' child, unless the plaintiff 
 remitted $5,000. Hobbs v. Eastern Ry. Co., 66 Me. 572. 
 
 $10,000. Sustained for the. death of a man forty-five 
 years old, without children, who supported his wife. 
 Wood worth v. Railroad Co., 66 N. Y. S. 1072. 
 
 $1,500. Is excessive for killing a deaf mute fifty years 
 old, whose earnings never exceeded fifteen dollars per 
 month, and were sometimes less, and who lived separately 
 from his wife. Reduced to $500. International & G. N. 
 Ry. Co. V. Jones, 60 S. W. Rep. 978. 
 
 $5,000. Is not excessive for the death of a postal cierk, 
 in good health, fifty years old, leaving a wife and two 
 children who were dependent upon him. Malott v. Shimer, 
 153 Ind. 35; 54 N. E. Rep. 101. 
 
§ 231 DAMAGES FOR DEATH BY WRONGFUL ACT. 424- 
 
 $13,500. Is not excessive. Chesapeake & O. Ry. Co. v. 
 Judd, 20 Ky. L. Rep. 1978; 50 S. W. Rep. 539. 
 
 $12,000. Sustained for the death of plaintiff's intestate. 
 Union Warehouse Co. v. Prewitt,^ 271, 21 Ky. L. Rep. 67; 
 50 S. W. Rep. 964. 
 
 $15,000. Will not be disturbed for the dea|h of a head 
 brakeman, thirty years old, in good health, industrious, 
 earning seventy-five dollars per month, who was the en- 
 tire support of his wife and children. Ft. Worth & R. G. 
 Ry. Co. V. Kime, 21 Tex. Civ. App. 271; 51 S. W. Rep. 558. 
 
 § 231. Allowance to Next of Kin. 
 
 $6,500. Is not excessive, where an action was brought 
 by the mother as the next of kin, for the loss of a son, 
 ,the evidence showing that the deceased contributed to 
 the support of his mother and her invalid daughter; that 
 he was earning from thirty dollars to fifty dollars per 
 month and that he was a healthy young man, whose ex- 
 pectancy of life was thirty-two and one-half years; that 
 his mother was fifty- nine years old, and her expectancy 
 was fourteen and three-fourth years; the son earning 
 $100 to $150 per month. Little Rock & Ft. Scott Ry. Co. 
 V. Voss (Ark.), 18 S. W. Rep. 172. 
 
 $2,391.50. Sustained for the death of a son who was 
 the main support of his father. Fordyce v. McCants, 55 
 Ark. 384. 
 
 $3,000. Is not excessive for a young man twenty-three 
 years of age, of good habits, and who was the sole sup- 
 port of his mother and her children. O'Callaghan v. 
 Rhode, 84 Cal. 489. ' 
 
 $2,000. Sustained for the death of a young man 
 twenty-tv/o years old who was the next of kin and the main 
 support of his sister, earning fifty dollars per month. 
 O. & M. R. R. Co V. Wangelin, 43 111. App. 324. 
 
 $3,000. Sustained for the death of a young man who 
 contributed to 'the support of his parents who were ad- 
 vanced in years. St. L. & T. H. R. R. Co. v. Bauer, 53 
 111. App. 525. 
 
 $3,000. Is not excessive for the death of a widow who 
 left surviving her four children, all of whom had attained 
 their majority except a daughter who was married and 
 
425 DAMAGES FOR DEATH BY WRONGFUL ACT. § 231 
 
 continued to live with her, and who owned a home and did 
 her own work. Chicago, etc. R. R. Co. v. Ptacek, 62 HI. 
 App. 375. 
 
 85,000. Is not excessive for the death of a man thirty- 
 three years old, unmarried, who supported his parents. 
 Leiter v. Kinnaire, 68 111. App. 558. 
 
 $2,500. Is not excessive for the death of an unmarried 
 man, twenty-eight years old, earning sixty or seventy 
 dollars per month, and having a father and mother to 
 whose support he had not contributed, but carried an in- 
 surance policy of 83,500 in favor of his mother. Sieber v. 
 Great Northern Ry. Co., 76 Minn. 269; 79 N. W. Rep. 95. 
 
 82,000. Was held .excessive for plaintiff's intestate, 
 twenty-three years old, a stone cutter, whose parents 
 were advanced in years, and infirm. Reduced to $750. 
 McKay v. New England Dredging Co., 92 Me. 454; 43 
 Atl. Rep. 29. 
 
 $1,500. Sustained for the death of a son earning fif- 
 teen dollars per moath, who gave all his earnings, ex- 
 cept about thirty dollars per year, to his father. Inter- 
 national & G. N. K. Co. V. Knight, 91 Tex. 660; 45 S. W. 
 Rep. 556. 
 
 $9,400. Will not be set aside for the death of a hus- 
 band, thirty-eight years old, healthy, temperate, indus- 
 trious, frugal and a farmer, who left a wife and infant 
 child. Pittsburgh, etc. R. R.Co. v. Burton, 139 Ind. 357. 
 
 810,000. Is excessive, at the suit of the mother, for the 
 death of her son, where it appears that he had been but 
 very little pecuniary value to her. A. T. & S. F. R. R. 
 Co. V. Brown, 26 Kan. 443. 
 
 84,500. For the death of a brakeman thirty-four years 
 old who was the main support of his widowed mother, 
 fifty-nine years of age, a single man, earning from sixty 
 to seventy-five dollars per month, and had resided with 
 her for ten years. St. L., S. & T. R. R. Co. v. French, 56 
 Kan. 58 J. 
 
 86,909. Is not excessive for the death of a father leav- 
 ing children who were dependent upon him for their sup- 
 port and maintenance and whose expectancy of life is 
 twenty-seven years. L. & N. R. R. Co. v. Graham, 98 
 Ky. 688. 
 
§ 1%-i. DAMAGES FOR DEATH BY KTRONGPUI/ ACT. 426 
 
 $3,000. Is excessive for the death of a person leaving 
 a mothei" and two brothers, who are able to earn their 
 own living, the decedent having been a farmer, receiving 
 two dollars per day and paying his own board at home. 
 Paulmier v. Railway Co., 37 N. J. Law 151. 
 
 $5,000. Will not be disturbed for the death of a single 
 man, thirty-three years old who resided with his father 
 and working for him making pianos. .Johnson v. Rail- 
 way Co., ,30 N'. Y. S. 31S. 
 
 $3,000. For the death of a man, sober, industrious, 
 unmarried, twenty-six years of age, earning $iOO per 
 year, leaving a widowed mother upon whom she depended 
 for support. Kane v. Mitchell Trans. Co., 35 N; Y. S. 
 581. 
 
 $3,550. Is not excessive for the death of a young man 
 twenty-two and one-half years of age, employed by a rail- 
 road companjj-, earning sixty dollars per month, one-half 
 of which he had been in the habit of giving to his mother, 
 sixty years old. Mo. Pac. H. R. Co. v. Henry, 75 Tex. 220. 
 
 $4,200. Will not be disturbed for the death of a young 
 man twenty-six years old, earning a thousand dollars a 
 year, who supported his mother, then fifty-one years old. 
 Tex. Pac. K. R. Co. v. Lester, 75 Tex. 56. 
 
 $6,000. In favor of a widowed mother for the death of 
 her unmarried son, thirty-five years old and her only 
 support, affectionate, and who gave her his wages, except 
 enough to buy his own clothes, is excessive and should 
 be reduced to three thousand dollars. Mex. Nat. R. R. 
 Co. V. Finch, 8 Tex. Civ. App. 409; 27 S. W. Rep. 1028. 
 
 $10,000. Will not be disturbed for the death of a son 
 twenty-three years old, healthy, sober, industrious, 
 receiving sixty-five dollars per month who contributed to 
 the support of his widowed mother and her two children 
 and grandmother, and whose expectancy of life is twenty- 
 eight vears. International G. N. R. R. Co. v. McNeill 
 Tex. Civ. App. ^9 S. W. Rep. 1133. 
 
 §232. Inadequate Damages. 
 
 $10,000. The amount of damages should not be eon- 
 trolled by the annuity tables alone, even in those state^ 
 where no limitation is fixed by statute. $10,000 for thp 
 death of a man thirty-two years old and eai-ning' $1,500 pe^ 
 
427 DAMAGES FOR DEATH BY WRONGFUL, ACT. § 233 
 
 year, is proper, although the amount required to pur- 
 chase an annuity of that sum is 824,882. The Oceanic, 
 61 Fed. Rep. 338. Smith v. Occidental and Oriental 
 S. S. Co., 61 Fed. Rep. 338. 
 
 Where death is caused by the negligence of the master 
 and it appears that thedeceased was about thirty years 
 old, and was capable of earning thirty to fifty dollars per 
 month, a judgment for nominal damages will be set aside 
 as inadequate. James v. Railroad Co., 92 Ala. 231. 
 
 $200. For the reckless taking of a human life, is an 
 unjust and unfair compensation, and the court should set 
 it aside and grant a new trial. Mariene v. Dougherty, 46 
 Cal. 26. 
 
 SI. 00 Where the action was to recover for wrongful 
 death and the principal question was the negligence and 
 contributory negligence of the parties. A verdict of 
 one dollar will be set aside as inadequate. Woolford v. 
 Lyon Gravel Gold Mining Co., 63 Cal. 483. 
 
 S37n. Will not be disturbed for the death of a child 
 three and one-half years old, intelligent and in good 
 health, as inadequate. Reger v. Railway Co., 2 App. 
 Div. 5; 37 N. Y. S. 520. 
 
 $55.00. More than the funeral expenses was not dis- 
 turbed as inadequate for causing the death of a minor 
 seventeen years old, who had earned seven dollars and 
 fifty cents per week as teamster. Leahy v. Davis, 121 
 Mo. 227; 25 S. W. Rep. 941. 
 
 § 233. Suffering of Deceased. 
 
 S350. Several seamen were thrown overboard and 
 after remaining in the water for an hour were drowned. 
 A verdict of $3,500 each was rendered, including mental 
 and physical suffering. The court reduced the verdict 
 to 8350 each. The Robert Graham Dun, 70 Fed. Rep. 
 270; 17 C. C. A. 90. 
 
 S5,000. Where a brakeman received an injury through 
 the nesflect of a railroad, f i-om which he died, a verdict 
 of 15,000 for damages to his estate, and for pain and suf- 
 fering, is not excessive. St. Louis, I. M. & S. Ry. Co. v. 
 Davis, 55 Ark. 462; 18 S. W. Rep. 628. 
 
 $2,500. When it appears that the deceased lived only 
 twenty-four hours after the accident, was mangled, his 
 
§ 233 DAMAGES FOR DEATH BY WRONGFUL ACT. 428 
 
 system subjected to a terrible shock, and that he suffered 
 intense pain, an award of $2,500 will be sustained. St. 
 Louis, I. M. & S. Ry. Co. v. Robbins, 57 Ark. 377; 21 S. 
 W. Rep. 886. 
 
 $8,000. When the amount of recovery is limited for a 
 death by wrongful act to $5,000, when it is immediate, 
 $8,000 for the death of one who survived his injury seven 
 months is excessive. Welch v. Railroad Co., 86 Me. 
 552. 
 
429 
 
 PLEADING IN DAMAGB CASES. 
 
 235 
 
 CHAPTER XXII. 
 
 PLEADING IN DAMAGE OASES. 
 
 Sec. 
 
 235. Preliminary Suggestions. , 
 
 236. Reason for these Suggestions. 
 
 237. Improper Conception of Plead- 
 
 ings. 
 
 238. Necessary Allegations. 
 
 239. Negative Averment. How Con- 
 
 strued. 
 
 240. Authorities pro and con. 
 
 241 . How Allegation of Negligence 
 
 should be stated. 
 
 242. Examples. Illustrations. 
 
 Sec. 
 
 243. What should be Specially 
 
 Pleaded. 
 
 244. Pleading in Ohio. Action by 
 
 Servant. 
 
 245. Averments when Death results 
 
 from Injuries. 
 
 246. Transitory Action. Jurisdiction 
 
 of Courts. 
 
 247. Proceedings in Personam 
 
 where Death follows. 
 
 248. Pleadings in case of Death. 
 
 § 235. Preliminary Suggestions. In actions for 
 damages for personal injuries, the form of pleading eon- 
 forms to the practice of the state where the action is 
 brought. In a state where the common law practice 
 prevails, it will be an "action on the case, "commenced by 
 summons or by filing declaration. In a state where code 
 pleading has been adopted, the action will be commenced 
 bj' filing a petition. It is sufficient to say that when the 
 issue is made, general rules of law apply to determine 
 the amount of liability, if any. 
 
 Aside from the formal parts, the beginning and the 
 end, it makes little difference whether the cause of 
 action is commenced by the common law declaration or 
 by a complaint or a petition, as technically described 
 under a code. What is sufficient under one form of 
 pleading, will be sufficient under another system, varied 
 according to the local code or practice, enacted by 
 statute and adopted by rules of procedure. 
 
 The vital and principal question is to know and to 
 understand the facts, and to frame the necessary allega- 
 tions, constituting the " statement of the cause of 
 action," in clear, logical, distinct and concise language. ■ 
 The evidence upon which the action is to be sustained 
 should not be pleaded, but the allegations or the statement 
 
ii 236-237 PLEADING IN DAMAGE CASES. 430 
 
 of the cause of action must be so framed as to admit 
 proof of the facts necessary to maintain such action. 
 
 The necessity of a thorough knowledge of the facts 
 and of the law is most important for many and obvious 
 reasons, among which is the fact that a large proportion 
 of actions for damages for personal injuries are against 
 corporations, who have employed and retained one or 
 more learned, experienced and skillful attorneys to 
 defend any and all actions which may be brought against 
 such corporations. These attorneys are experienced in 
 this class of litigation and will take advantage of every 
 technical defense available. 
 
 § 236. Heasons for these Suggestions. It has been 
 deemed advisable to give a few of the leading and essential 
 principles of pleading in this class of cases. These sug- 
 gestions are the result of personal experience. If the 
 attorney knows the law and the facts he will know and 
 understand the reason of these principles. He will know 
 how the allegations should be framed and stated in order 
 to admit proof of the facts necessary to sustain the 
 action and to recover a judgment for the damages sus- 
 tained. 
 
 § 237. Improper Conception of Pleadings. There 
 is no subject of the law more difficult to master and then 
 to apply than the principles of pleading. In explanation 
 of this it may be said that the principles of pleading are 
 seldom thoroughly taught or clearly stated in the text 
 books ; their importance is not sufficiently emphasized. 
 The pleadings are the foundation for the evidence and 
 judgment. Without a complete and relia^)le declaration 
 or petition disaster may be expected, ii it does not 
 follow it is a matter of good fortune. 
 
 There are certain rules which it is necessary to know 
 and to follow in preparing the pleading to be filed, as the 
 commencement of the action. These rules should guide 
 and shape the preparation of every pleading. 
 
 Mr St. Secure and make a full written memorandum 
 of all the facts which can be obtained. 
 
 Second. Examine and brief the law applicable to the 
 ease and reduce the result to writing in a logical arrange- 
 ment, to be used whenever the case comes on for trial 
 supplemented by further examination and research as 
 
431 PLEADING IN DAMAGE CASES. i 238- 
 
 new facts are discovered and new questions suggest 
 themselves. Disastrous resi^lts, as a general rule, are 
 not attributable to the law, but to the persons who 
 undertake to do something which they do not understand, 
 and who misapprehend the principles and the reasons 
 applicable to the particular case. Learn, and so master 
 the case so as not to be taken by surprise. 
 
 § 238. Xecessary Allegations. In an action to re- 
 cover damages for an injury to the person, occasioned by 
 the negligence of another, the declaration, complaint or 
 petition as named by the local procedure, besides its 
 formal parts, should embrace allegations as follows, 
 to- wit: 
 
 First. An allegation of obligation or duty due to the 
 public or to the plaintiff, from the defendant; or facts and 
 circumstances from which such duty may be implied.' 
 
 Second. An allegation of a faillire on the part of the 
 defendant to obey or perform some duty, in whole or in 
 part, or the omission of some act enjoined upon the de- 
 fendant to do and perform. 
 
 Third. That bj" reason of said failure or omission an 
 accident occurred, by which the plaintiff received an in- 
 jur}', as the natural and proximate result of such accident. 
 The particular factor or element of negligence causing 
 the accident and injury should be clearly stated.^ 
 
 Fourth. It is the better practice to state, as a fourth 
 allegation, that the accident occurred and the injury was 
 received without negligence, carelessness or fault on the 
 part of the plaintiff, and without any knowledge on his 
 part of the defects, or dangers, by which the same was 
 caused. 
 
 In some of the states the omission of this fourth allega- 
 tion has not been held to be fatal. ^ 
 
 'Geveke v. Grand Rapids & Ind. Light Co., 98 N. Y,. 115; Street Ry. 
 
 Rd. Co., 57 Mich 589. Co. v. Nolthenius, 40 Ohio St. 376; 
 
 'San Antonio St. Rv. Co. v. Caillo- Lee v. Union Rd. Co., 12 R. I. 383, 34 
 
 nette, 79 Tex. 341, 15 S. W. Rep. 390. Am. Rep. 668; Texas, etc., Rd. Co. 
 
 'James, v. Emuiett Mining Co., 55 v. Murphy, 46 Tex. 356; B. & O Rd. 
 Mich. 335; Halt v. Whately, 51 Ala. Co. v. Whittinger, 30 Gratt. 8u5; Petit 
 569; Chicago, etc., Rd. Co. V. Coss, v. Hudson, 2 Re. (Ohio) 660; Fowler v. 
 73 111.394; Wilson v. Railway Co., 7 B. & O. Rd. Co. 18 West Va. 579; 
 Colo. 101; May V. Inhabitants, etc., 11 Kelley v. Chicago, etc., Rd. Co., 50 
 Met. 442; Holmes v. Writhench, 22 Wis. 381; Conray v. Oregon Con- 
 Minn. 152; Lee v. Troy City Gas struction Co., 23 Fed. 71. 
 
ii 239-240 PLEADING IN DAMAGE CASES. 432 
 
 § 239. Negative Averment. How Construed. An 
 
 averment in the declaration or petition that the piaintiif 
 was without fault or negligence on his part, or that the 
 existence of the facts causing' the injury was unknown to 
 and could not have been ascertained or anticipated by the 
 plaintiff, is sufficient.' 
 
 The states of Indiana and Kentucky are the only states 
 where it is held that this allegation or averment, "that 
 the accident and injury occurred without any fault on the 
 part of the plaintiff " is necessary. In other states it is 
 tield that "the plaintiff was without fault on his part " or 
 that " the existence of facts causing the injury was un- 
 known to him" is sufficient. 
 
 § 240. Authorities Pro and Con. In the following 
 states it is held that such averment is unnecessary. The 
 reason which is given, and which is a natural and sensi- 
 ble reason, is that the onu<i of proving that the plaintiff 
 was at fault, or guilty of contributory negligence rests 
 upon the defendant; that the plaintiff is entitled to a 
 judgment, without any such proof on his part; and that 
 he is not required to allege and state a negative fact which 
 he is not required to prove to make out a case, to entitle 
 him to a judgment if the defendant should make default 
 in such action, but which the defendant must make and 
 prove as a defense.' 
 
 Contributory negligence is a matter of defense which 
 can not be presumed, but must be proved affirmatively by 
 the defendant. ^ 
 
 lOhio, etc., Ry. Co. v. Walker, 113 Co., 78 Cal. 430, 12 Am. St. Rep. 69; 
 
 Ind. 196, 3 Am. St. Rep. 628; Pottery. Crane v. Railway Co., 87 M". 588 ; 
 
 Chicago, etc., Rd. Co., 20 Wis. 533, 9 Hackford v. Railway Co., 53 N. Y. 654 ; 
 
 Am. Dec 444; EvausviUe, etc. Rd. Lee v. Troy City Gas Light Co, 98 N. 
 
 Co. y. Crist, 116 Ind. 446. 9 Am. St. Rep. Y. 115; Rolsette y. Smith, 38 Minn. 
 
 «65; Bogenschultz v. Smith, 84 Ky. 14,8 Am. St. Rep. 637; O'Connor y. 
 
 330; Louisville, etc.Rd Co. y. Wolle, Railway Co., 94 Mo, 150, 4 Am. St. 
 
 80 Ky. 82; Louisville, etc. Ry. Co. v. Rep. 364; Ga. Pac. Rd. Co. v. Probst, 
 
 Buck, 116 Ind. 566, 9 Am. St. Rep. 883 ; 85 Ala. 203 ; Railway Co. v. Herman, 
 
 James v. Emmett Mining Co., 55 83 Va. 553 ; South West Va. Improve- 
 
 Mich, 335; Brannan v. Kokomo, etc., ment Co. v. Andrews, 86 Va. 270; 
 
 Gravel Road Co., 115 ind. 115, 7 Am. Church y. Railway Co , 21 S. C. 495; 
 
 St. Rep. 411 ; Wilson v. Trafalgar, Cox v. Providence Ger. Co., 17 R. I. 
 
 etc.. Gravel Road Co., 83 Ind. 326; 199, 21 Atl. 344; Beach Contr. Neg. (3 
 
 Toledo Ry. Co. v. Brannagan, 75 Ind. ed.) p. 606, n. 33. 
 490 5 Am.& Eng. Rd. Cas. 635. s Inland, etc., Co. v. Tolson, 1.39 U. 
 
 2RailroadCo. V. Gladmon, 15 Wall. S. 551; Conray v. Oregon Construc- 
 
 401; Indianapolis & St. L. R. Co. v. tion Co., 23 Fed. Rep. 71; Little Rock, 
 
 Horst, 93 U. S. 291 ; Magee v. Railway etc., Rd. Co. v. Leverett, 48 Ark. 333, 3 
 
433 PLEADING IN DAMAGE CASES. 
 
 241 
 
 Presumption of Negligence. The evidence of the 
 plaintiff may be of such a character as to raise a presump- 
 tion of negligence on his part. In such event in Ohio, 
 the burden of proof then shifts and the plaintiff is 
 required to remove such presumption and show by fur- 
 ther evidence that the accident or injury occurred without 
 negligence on his part.' 
 
 When the injury is sustained on board of a vessel or 
 steaniboat, contributory negligence on the part of a sea- 
 man is no defense." 
 
 § 241. How tlie Allegation of Negligence Should 
 be Stated. The acts which caused the injury, as herein- 
 before indicated, viz: the duty, the failure, and the acci- 
 dent and injury by reason thereof, should be clearly, dis- 
 tinctly and logically stated.^ 
 
 The petition or declaration should distinctly state the 
 omission or commission of an act or acts which consti- 
 tute the negligence. It should not charge or allege negli- 
 gence, if the defendant be a railroad company, in "run- 
 ning its cars" or in "using defective appliances" when 
 the negligence consisted, in keepingr a " defective frog* in 
 the track " or in "using an unsafe bridge."* 
 
 Am. St. Rep. 230; Georgia Pac. Ry. Co. Woods, 6 C. D.O. 350, 9 C.C.O. 322, af- 
 
 V. Davis, 92 Ala. 300; Burns v. Rail- firmed 1895; C. H. & D. Ry. Co. v. 
 
 way Co., 69 Iowa 450, 58 Am. Rep. 227 ; Murphy, 9 C. D. O 703,17 C. C. O. 223. 
 
 Gaynorv. Railway Co., 100 Mass. 208, axhe Max Morris, 137 U. S. 1 ; 
 
 98 Am. Dec. 96; Hocum v. Weither- Washington, etc., Rd. Co. v. McDade, 
 
 wick, 22 Mmn. 154; Robinson v. 135 N. S. 554; Thompson v. Herman, 
 
 Railway Co., 48 Cal. 409 ; Lee v. Gas 47 wis. 612; Steamboat New World 
 
 Light Co., 98 N. Y. 115; Thompson y. King, 16 Howard, 469. 
 
 V. Railway Co., 51 Mo 190, 11 Am. ,g^^^^ Hannibal, etc., Ry. Co., 
 
 fA/h ^' ^'?^ \ . '^\ n 72 Mo. 212 ; Gillett v. Detroit Board 
 
 244. Contra : Louisville, etc Rd. Co v. ^^ ^^^^ ^g ^^.^^ 3^9 Waldhier v. 
 
 Sanford 117 Ind 225, 19 N. E. 777 ; R^ii ^o . 7I Mo. 514 ; Heilner v. 
 
 where It is stated that the plaintiff ^^.^^ ^^ 7 ^ 83 ^^^^^ ^ 
 
 should have averred want of knowl- R^jiway Co.. 15 Fed. Rep. 588 ; Jones 
 
 edge of the defective bridge which ^ ^^.^^ gg j^^ 255 ; lohnson ;. Rail- 
 occasioned the accident 3 Lawson ^.^ gj Minn. 283; State v. Rail- 
 Rights. Rem^ & Pr., p 2143 n 3. ^^ 52 N. H. 528 ; 2 Thompson on 
 
 r^u^- t «.o^'\, ^°; ^- J^'''"^^^' 1 Neg. Sees. 1246, 1248, 1254; Chicago 
 
 r n oNfVfi r°r O filTr^nt'v & N. E. R. Co', v. Miller, 46 Mich. 
 
 C. D. O. 53, 16 C_^ CO. 617 Grant v. 533 ^hic. & E. L R. Co. v. O'Qon- 
 
 o' qJo^^ ffi°" ^ ^- ^?- ni, • W «fin • °°^ 119 I»- 586 ; 6 N. E. 263 ; Lee v. 
 O 362, affirmed 54 Ohio St 660 Railway Co.,34 Minn. 225, 25 N.W.Rep. 
 
 ^*';^"R ''ii^"'o^^"'^ ^'"'o7q'"'% ,"« 399 ; Babcock v. Railway Co., 36 Minn. 
 CD. O. 212, 9 C. CO. 249; Coal & ,47 30 j^ j^ ^ r ^g. ^^^^ j^j^^ 
 
 ^l.°'^^S°o'-f '7' t^""^-' V & Red River Rd. Co. v. Brinker, 68 
 
 542 ; P. C. & St. L. Ry. Co. v. Zepper- ~ -„„ 
 
 lein, 1 C.D.O. 22, 1 C.C.O. 36, affirmed, 
 
 1885; N. Y. C. & St. L. Ry. Co. v. ^ Supra. Note 3. 
 
 28 
 
g 242 PLEADING IN DAMAGE CASES. 434 
 
 The particular acts constituting the neglience need not 
 be set forth in detail.' 
 
 If the acts constituting the negligence be specifically- 
 stated, the evidence on the trial is confined within the 
 limit of these acts/ 
 
 Where an action is brought by an employe of a rail- 
 road company to recover damages for a personal injury, 
 alleged to have been caused by negligence, it is better 
 that the cause of action be more specifically stated than 
 when a passenger is seeking to recover damages for the 
 same accident.^ 
 
 If the duty resting or imposed upon the officers of a 
 railroad company was not performed, and the accident 
 occurred thereby, the declaration must aver notice or 
 such a state of facts as will imply notice, by the use of 
 ordinary diligence on the part of the officer or officers 
 having charge thereof, and charged with such duty.* 
 
 § 242. Examples. Illustrations. In an action 
 against a railroad company for killing stock which went 
 upon its right of way by reason of the neglect or failure 
 of the company to fence the same, or to build cross-fences 
 at all highway crossings, when the law imposes such 
 duty, the plaintiff in his declaration should aver : 
 
 First: The duty imposed upon .the railroad company 
 to fence its right of way, and to erect wing fences on the 
 line of public highways. 
 
 Second : The failure or neglect to construct such 
 fence at some point on its right of way, or on the line of 
 a public highway. 
 
 Third : That stock got upon its right of way at such 
 point where the railroad company had failed to maintain a 
 lawful fence. That an accident and injury to the stock 
 were caused thereby. 
 
 Fourth: An averment that the accident and injury 
 occurred without fault or knowledge on the part of the 
 plaintiff. 
 
 iBlack on Proof aud Pleading Acci- SQark v. Chic, etc. Rd Co 15 Fed. 
 
 dent Cases, Sec. 167, note. Rep 588 "' 
 
 iw'^'^o^^'^^L"- ^°- ^f^u-^^- ^°- '^5 ^Michigan Cent. Rd. Co. v. Gilbert, 
 
 Mo. 295 ; Batterson v. Chic., etc. Rd. 46 Mich. 176 ; Laniiig v Railroad Co 
 
 ?^C^"'''9^^i?'T^\''- °;°"'!.' ^« N- Y- ^21 Hilts^. Ranroad Co.; 
 13 Bradw 232; Black on Proof and 55 Mich. 437 ; Baulec y. Railroad Co. 
 Pleading Accidental Cases, p. 202. 59 N. Y. 356. 
 
435 PLEADING IN DAMAGE CASES. ? 243 
 
 In an action against a municipal corporation for in- 
 juries for the defective condition of highways, it is nec- 
 essary that the declaration or petition should allege the 
 duty imposed upon such municipal corporation to provide 
 and keep in repair a safe public highwaj- ; an omission to 
 perform such duty ; the accident and injury by reason 
 thereof ; and its occurrence without knowledge or fault 
 on the part of the plaintiff. The declaration should also 
 allege that the officers of the municipality had knowledge 
 or notice of the defective condition of the highway or 
 bridge, if the accident was caused by a defective bridge, 
 or a statement of facts from which notice might be im- 
 plied, by the use of reasonable diligence, which the law 
 requires of and imposes upon such officers in the perform- 
 ance of their official duty/ 
 
 § 243. What Must be Specially Pleaded. Damages 
 which are the natural but not the necessarily natural 
 result of the act complained of, are special and must be 
 specially pleaded. The object of this rule is to inform 
 thf defendant of the plaintiff's claim and prevent any 
 question of surprise on the trial. Ordinary damages 
 such as naturally result from an injury, the defendant 
 is required and presumed to know. Special damages, the 
 defendant is not required to anticipate from a general 
 averment. Hence, if special damages are claimed, aver- 
 ments, to admit evidence thereof, must be distinctly and 
 speeiflcally set forth. ^ 
 
 In Roberts v. Graham, it was held that a woman suing 
 for an injnry to her person cannot show without a special 
 averment that her personal appearance was so impaired 
 as to diminish her chances for an advantageous mar- 
 riage.' 
 
 In South Covington, etc., Rd. Co. v. Ware, it was held 
 that in order to recover any money expended by him or 
 debt created on account of the injury, the plaintiff must 
 aver special damages. 
 
 iHeilner v. Union Co., 7 Oregon 83. nett v. Edgerton, 14 Minn. 174; 100 
 
 Black on Accident Cases, Sec. 167. Am. Dec. 211 ; Harding v. Railway 
 
 2Coal and Car Co. V. Norman, 49 Ohio Co., 56 Mich. 628 ; Joslyn v. Grand 
 
 St. 598; Roberts v. Graham, 6 Wall. Rapids Ice Co., 53 Mich. 322. 
 
 578; Treadwell v. Whittier, 80 Cal. »Heirn v. McCaughan,32Miss. ]7;66 
 
 575; 13 Am. St. Rep. 175; Hauter v. Am. Dec. 588, note; Adams Express 
 
 Staart, 47 Me. 419 ; South Covington Co. v. Egbert, 78 Am. Dec. 382. 
 R. R. Go. V. Ware, 84 Ky. 267 ; Brack- 
 
i 244 PLBADING IN DAMAGE CASES. 436 
 
 In an action to recover damages for negligent injuries, 
 the plaintiff, uader the general averment as set forth 
 herein, is entitled to recover all the damages naturally- 
 resulting therefrom. The law implies such damages/ 
 
 Under general allegations the weight of authority- 
 holds that the plaintiff may show his diminished capacity 
 to])erform the duties of his business, trade or profession 
 whatever it may be ' 
 
 It is held by some courts that when the plaintiff claims 
 damages for loss of capacity to pursue work in a special 
 employment or profession in which he was engaged at 
 the time of the injury, it is necessary to be specially 
 stated and alleged/ 
 
 If the allegation in the pleading is not clear and dis- 
 tinct and the defendant wishes to be better informed, he 
 may move to make it more certain and specific* 
 
 § 244. Pleading in Ohio. Action by Servant. Where 
 an action is brought in the state of Ohio by a servant 
 against the master, on account of a defect in the appli- 
 ances or machinery used, the petition should contain 
 three distinct allegations, to-wit : 
 
 First : That the appliance was defective. 
 
 Second : That the master had or ought to have had 
 notice or knowledge. 
 
 Third : That the servant did not know the defects and 
 had not equal means of knowledge with the master.^ 
 
 But the rule in Coal & Car Co. v. Norman, 49 O. S. 598, 
 was modified in Lake Shore & Michigan Southern Ry. 
 
 iTex., etc. Rd. Co. v. Curry, 64 Tex. 274; Morris v. Chic, etc. Rd. Co., 45 
 
 85 ; Johnson v. Railroad Co., 31 Iowa 29 ; Chicago v. Jones, 66 111. 349; 
 
 Minn. 283; Pen u., etc. Rd. Co. v. Joliet v. Conway, 119 111. 489; Conner 
 
 Knck, 47 Ind. 369 ; Claxtou v Rail- v. Pioneer, 29 Fed. Rep. 629 ■ -Wade v 
 
 road Co., 13 Bush- (Ky.) 636; Tread- Leroy, 20 How. (U. S.) 34 ' I.uck v. 
 
 well V. Whittier, 80 Cal. 578 ; 13 Am. Ripon, 52 Wis. 196 
 
 175 St. Rep. This- last case discusses s Bristol Mfg. Co. v. Gridlev 28 
 
 this question at length. Wabash, etc. Conn. 201; Taylor v. Monroe,' 43 
 
 Rd. Co. y. Savage, 110 Ind. 157; Conn. 36; I^ogansport v. Justice, 74 
 
 Bloomingtonv. Chamberlain, 104 HI. Ind. 378 ; Joslin v. Gr. Rap. Coal & 
 
 Zb8; Boone V Railroad Co., 20 Mo. Ice Co., 53 Mich 322 
 
 App. 232; Chic B. & Q. R. Co. v. * Luck v. Ripon, 52 Wis. 196. 
 
 Sulhvan, 21 111. App. 580 ; 17 N. E. 460. = Coal & Car Co. v. Norman, 49 Ohio 
 
 ^n« mTt^''- r^^^^^^V ?^°„„^^=«- S*- 598; Railroad Co. v. Kasson, 49 
 
 ? iq?- ir^T^- ^Iv- Ni^Jiols, 33 N. J. Ohio St. 230 ; Beard v. Railroad Co., 
 
 k IflQ '. w'^n^"^^ °. ^- ^?"^\V ^^- ^^ ^- °- O- 169 ; see also Sec. 2, Act of 
 v'st. 109 , Hall V. Fond du Lac, 42 Wis. April 2. 1890, 87 O. L. 149. 
 
437 PLEADING IN DAMAGE CASES. ? 246 
 
 Co. V. Godwin, 12 O. C. D. 539, where the court holds that 
 if the servant knew of the defect or danger before the 
 accident and there is good and sufficient reason at the 
 time of the accident, for his not remembering it, that is,, 
 the nature of the business was such that it would natur- 
 ally and obviously take his mind therefrom, such as 
 would induce ordinary men usually to forget, he cannot 
 be held guilty of contributory negligence for not remem- 
 bering, so as to defeat his recovery. 
 
 A master's liability for injuries to his servant from 
 defective or unsafe machinery is not limited to cases 
 where the master knew of the defective or unsafe con- 
 dition of the machinery, but extends to cases where he 
 had the means of knowing and was careless in not 
 knowing thereof,' or in protecting the same.^ 
 
 § 245. Averments when death results from the 
 
 injury. The principles and the question involved in an 
 action to recover damages for negligently causing the 
 death are discussed m another chapter.^ 
 
 With reference to the allegations to be contained in a 
 declaration or petition, it is necessary to follow the same 
 principles as are laid down in this chapter ; and it is also 
 necessary to allege in addition that the statute of the 
 state where the accident occurred authorizes such an 
 action, whether it is brought in that or in another state, 
 because the right to maintain depends upon such statute f 
 and particularly if the action is brought in a state other 
 than where the accident occurred, an averment of such 
 statute is necessary f and also that pecuniary or material 
 loss was sustained by the beneficiary or parties for 
 whose benefit the action is brought.^ 
 
 The right to maintain an action for negligently causing 
 death, is in the nature oi '^ special damages;'''' and the 
 
 •Toomey v. Stamping Co., 11 O. C. 126 Pa. St. 206 ; Leonard v. Steam- 
 
 D. 216 ; 20 O. C. C. R. 183. See also boat Co., 84 N. Y. 48. 
 
 Hayden v. Smithville Mfg. Co., 29 'Stafford v. RubenF, 115 111.196;. 
 
 Conn. 548, Union Pac. Rd. Co. v. Dunden, 37 
 
 'Casey V. Rahn-Mayer-Carpenter Co. Kan. 1; Steel v. Kurtz, 28 Ohio St. 
 
 12 Ohio Dec. 597, and cases cited. 191 ; Davis v. Guarnieri, 46 l)hio St. 
 
 'Chapter 21, supra. 470 ; Hurst v. Detroit City Ry. Co.,. 
 
 ♦Texas etc Rd Co. v. Cox, '45 84 Mich. 539 ; Morgan v. South. Pac. 
 
 U. S. 593, 'and authorities cited. Rd. Co., 95 Cal. 510; 17 L. A. R., p. 72 ;, 
 
 'Usher V. West Jersey, etc. Rd. Co., full note. 
 
g 246 PLEADING IN DAMAGE CASES. 438 
 
 declaration or petition must contain averments showing 
 the grounds upon which the right to a recovery is based.' 
 
 When the action is in admiralty in rem the declaration 
 must contain an averment that in the state where the 
 injury occurred there was in force a statute creating a 
 lien upon all vessels for damages for negligent injuries 
 to the person. 
 
 It is a very serious question whether the action con- 
 templated by the statutes can be joined with the action 
 created by other special and independent statutes, by 
 which the damages for negligent injuries to the person 
 survives. The principles upon which they are recognized 
 and enforced are entirely different." 
 
 § 246. Transitory Actions. Jurisdiction of Courts. 
 
 Actions for tort recognized and enforced at the common 
 law were personal and could be brought in any court 
 where jurisdiction of the parties could be obtained. The 
 locus of the accident in no way fixed the place of trial, 
 nor determined the jurisdiction of the court. But actions 
 for tort which have been created by statutory provisions 
 are limited to the territory and jurisdiction of the states 
 where the statute is in force. Such statutes have no 
 extra territorial force or power. These actions so created 
 are nevertheless personal, and transitory in their nature 
 and results. The power and jurisdiction of the courts, 
 however, are derived from and depend upon these stat- 
 utes for the remedy if any, and the relief to be granted. 
 It has been a question of much controversy and exten- 
 sive litigation whether the cause of action created by the 
 statute of a particular state could be brought in another 
 state and tried and whether the judgment could be 
 enforced (when a recovery is. had) other than in the state 
 where the accident occurred. The same rule is recog- 
 nized and applied when the injured person lives or when 
 death results so far as the enforcement of this statute is 
 concerned.' 
 
 > Hurst V. Railway Co., 84 Mich. 2 TifiFany, Death by Wrongful Act, 
 
 539; Penn., etc. Kd. Co. v. Lilly, 73 Sec. 23. 
 
 Ind. 252; Tomlinson v. Derby, 43 'Leonard v. Columbia Steam Nav 
 
 Conn. 562; Taylor v. Monroe, 43 Co.,84N. Y. 48 ; 38 Am. Kep 491 ; Den 
 
 Conn. 42; Van Brunt v. Railroad Co., nick v. Railroad Co., 103 U. S. 11 
 
 78 Mich. 530; Perry v. Banking Co., McLeod v. Railroad Co., 58 Vt 727 
 
 85 Georgia 193,11 S. E. Rep. 605; Knight v. Railroad Co., 108 Pa. St 
 
 Davis V. Guarnieri, 45 Ohio St. 470. 250 ; 56 Am. Rep, 206 ; Wooden v Rail 
 
439 PLEADING IN DAMAGE CASES. ? 246 
 
 The question may now be regarded as settled in the 
 United States and in nearly all of the state courts that 
 the action may be brought in any state and is not limited 
 to the one where the injury occurred ; provided that the 
 state where it occurred and in the one where it is pro- 
 posed to be brought have similar statutes in relation to 
 such actions; and provided jurisdiction can be obtained 
 by personal service upon the defendant/ or by proceed- 
 ings in reia^ by attachment or seizure of property, or by 
 an action in admiralty. Cases where an action for tort 
 in rem in admiralty can be maintained and the distribu- 
 tion to be recognized are more fully discussed in another 
 section.^ 
 
 The construction put upon these statutes, when an ac- 
 tion is brought in another jurisdiction or state, and upon 
 the right to maintain and enforce it, does not depend up- 
 on the fact nor is it required that such statutes shall be 
 identically the same. It is sufficient if they are substan- 
 tially alike. 
 
 The reason why courts have recognized and enforced 
 these statutes of other states is upon the rule or princi- 
 ple of comity between states, and of the statutes and 
 rules of practice and procedure of which judicial cogniz- 
 ance is taken, by courts. It is an evidence of civilization. 
 It saves expense and delay. It recognizes and enforces 
 substantial and identical rights. A further reason may 
 be stated that the action for tort is transitory ; that all 
 transitory actions have no locusi situs ; but are suable in 
 any court or jurisdiction, locality or forum where the de- 
 fendant (debtor) resides.' 
 
 Exceptions. In the states of Massachusetts, Ohio, Kan- 
 sas and Texas, it has been severally held by their courts 
 that they will not enforce actions for torts where the 
 
 road Co., 126 N. Y. 10 ; Dates v. Rail- i Usher v. Railroad Co., 126 Pa. St. 
 
 road Co 104 Mo. 514 ; 16 S. W. Rep. 206 ; 12 Am. St. Rep. 863 ; Texas, etc. 
 
 487 ; Nelson v. Railroad Co., 78 Tex. Rd. Co. v. Cox, 145 U. S. 593, and au- 
 
 621 ; Thompson v. Railroad Co., 91 thorities cited. 
 
 Ala. 496; 8 So. Rep. 406; Burns v. zgunra • Ch 21 
 
 Railroad Co., 113 Ind.169; 5 N.E. Rep. ^ ' ' ^ ^ 
 
 230- Usher v Railroad Co.. 126 Pa. ^East Tenn., etc., Rd. Co. v. Ken- 
 
 St 206- Davis v. Guarnieri, 45 Ohio St. nedy, 83 Ala. 462 ; 3 Am. St. Rep. 756; 
 
 470 • Louisville, etc. Rd. Co. v. Buck. Hale v. Lawrence, 21 N. J. L. 714 ; 47 
 
 lie'lnd. 556; Indiana Car Co, v. Am. Dec. 190; Dennick v. Central 
 
 Parker, 100 Ind. 182; Morris v. Rail- Rd. Co., 103 U. S. 11. 
 Toad Co., 65 Iowa 727; 54 Am. Rep. 39. 
 
ii 247-248 PLEADING IN DAMAGE CASES. 440 
 
 cause arose in another state.' But in Ohio there is now a 
 statute recognizing such a right and enforcing such a lia- 
 bility. 
 
 But these decisions have been severely criticised as 
 unsound in principle.^ 
 
 There is no distinction as to courts by the weight of 
 authority or by the well settled rules in what forum the 
 action may be brought whether in the state or in the 
 United States courts. The question of citizenship de- 
 termines the forum. 
 
 §247. Procedure in Personam where Death Fol- 
 lows. The right to recover damages in an action in per- 
 sonam in any jurisdiction where the defendant resides 
 and personal service of process upon such defendant can 
 be made, when death results from the injury, may be re- 
 garded as settled. The reasons for this rule are more 
 fully discussed with citation of authorities.^ 
 
 Even matters may be considered and form an element 
 of damage which would not have been allowed in the state 
 where the accident occurred.* 
 
 § 248. Pleading. It is necessary to set out who are 
 the next of kin, in an action for damages for negligently 
 causing death.* The petition should also show that pecu- 
 niary damages have been sustained by such next of kin.* 
 
 1 Woodward V. Railroad Co., 10 Ohio S. 11 ; Randall v. B. & O. Rd. Co., 109 
 St. 121; Richardson v. Railroad Co., U. S. 478; Texas, etc., Railway Co. 
 98 Mass. 85; McCarthy v. Railroad v. Cox, 145 U. S. 593, where this ques- 
 Co., 18 Kan. 46; 26 Am. Rep. 742 ; tion is undoubtedly not at rest. 
 Willis V. Railroad Co., SI Tex. 432; 'Texas, etc.. Rd. Co. v. Cox, supra. 
 48 Am. Rep. 801. * Hartzell v, Shannon, 6 Bull. (Ohio) 
 
 2 Usher v. Railroad Co., 126 Pa. St. 756 
 
 206; 12 Am. St. 863; Dennick v. Rail- " Dunhene v. Insurance Co., 1 Dis. 
 
 road Co , 103 U. S. 1 1 . 257 ; Johnston v. Railway Co., 7 Ohio 
 
 ''Dennick v. Railway Co., 103 U. St. 336. 
 
441 
 
 EVIDENCE. 
 
 ii 250-251 
 
 CHAPTER XXIII. 
 
 EVIDENCE. 
 
 iJEC. 
 
 260. General Suggestions. 
 
 251. Proof. Negligence. Presumption. 
 
 252. Accidents Inevitable and Unex- 
 
 pected. 
 
 253. Essential Elements of Proof. 
 
 254. Precedent Negligence. 
 
 255. Fundamental Rules, 
 
 256. General Loss. How Shown. 
 
 257. Res Gestae. Cotemporaneous 
 
 Facts. 
 
 258. Evidence of Plain tifiF. 
 
 259. Evidence of Unskilled Wit- 
 
 nesses. 
 
 260. Evidence of Physicians. 
 
 ■i61. Evidence when Person is Muti- 
 lated. 
 
 262. Evidence in Case of Death of 
 
 Adults. 
 
 263. Evidence in Case of Death of 
 
 Infants. 
 
 Sec. 
 
 264. Marriage of Surviving Husband 
 
 or Wife. 
 
 265. Reasonable Doubt. 
 
 266. Indebtedness of Plaintiff. 
 
 267. Special Damages. 
 
 268. Loss of Partnership. 
 
 269. Loss of Literary Emoluments. 
 
 270. Interest. 
 
 271. Exhibition of Injured Part. 
 
 272. Surgical Examination of In- 
 
 jured Person. 
 
 273. Physical Examination During 
 
 Trial. 
 
 274. Effect on Mind or Health. 
 
 275. Limitation of Damages to One 
 
 Action. 
 
 276. Amendment Ad Damnam. 
 
 277. General Reputation of Employes. 
 
 278. Photograph, Maps and Dia- 
 
 grams. 
 
 § 250. General Suggestions. It is not within the 
 province nor purpose of this work to go into any exten- 
 sive discussion of the questions of evidence which arise 
 on the trial of personal injury cases. To cover all such 
 questions would require a treatise by itself. All that will 
 be said will bear directly upon some of the fundamental 
 principles of evidence which may be likely to arise in 
 almost every case. They constitute the essentials of the 
 evidence to be given in order to entitle the plaintiif to a 
 recovery. They are well defined principles which it be- 
 comes necessary to know and apply in the trial of a major- 
 ity of personal injury eases. 
 
 § 251. Proof. Negligence. Presumption. On the 
 trial of actions to recover damages for injuries to the 
 person, the plaintiff must show, by a fair preponderance 
 
? 251 EVIDENCE. 442 
 
 of evidence, the negligence, fault or mistake of the de- 
 fendant or the facts and circumstances from which they 
 may be implied or inferred. He must also show the 
 effect of the injury which has been sustained under the 
 several distinct elements of damages. The right of re- 
 covery is dependent upon the facts shown by the plain- 
 tiff. The effect of the injury determines the limitation 
 and forms the basis of the amount of damages to be 
 awarded. Each case must be determined from its own 
 facts and circumstances. The facts and concurrent cir- 
 cumstances should be shown in a plain and logical man- 
 ner and in a natural order. 
 
 According to the weight of authority, when an acci- 
 dent occurs from the breakage or defective condition of 
 any of the appliances used in the operation of trains and 
 an injury is caused to any passenger thereon, negligence 
 is presumed.' 
 
 When a collision occurs between two trains running in 
 opposite directions, negligence is presumed.^ 
 
 The same principle is also recognized and accepted 
 whenever the accident and injury are caused from the 
 defective condition of the roadbed, rails, bridges and 
 cars, or from the signals used by the railroad companies 
 in the operating of their trains.' 
 
 The same doctrine has been declared and applied to ac- 
 cidents and injuries arising from explosions of engines 
 and boilers used in cars and on steamboats.* 
 
 1 Toledo & Wabash Ry. Co. v. Beggs, 3 Roberts v. Johuson, 58 N, Y. 613 • 
 85 111. 80; Meier v Railroad Co., 64 Caldwell v. N. Y. Steamboat Co- 47 
 Pa. St. 225; Treadwell v. Whittier, 80 N. Y. 282; Railroad Co. v. PoUord',' 22 
 Cal. 575; 13 Am. St. Rep. 175 ; Rosen- Wall. 341 ; Smith v. City Ry Co 32 
 aeld V. Arrol, 44 Minn. 395 ; 20 Am. Minn. 1. 50 Am. Rep. 553. 
 
 St- Rep- 5«4. 4 Fuller v. Jewett, 80 N. Y. 56 ; 111. 
 
 The proof need not be direct and Cent. R. R. Co. v. Houck, 72 111 285 ■ 
 
 positive. Eagle Packet Co. v. Deff- Yeoman v. Costra Steam Nav Co , 44 
 
 ries, 94 111. 598; Phila , etc., Ry. Co. Cal. 71; Dunlap v.The Reliance, 2 Fed. 
 
 V. Anderson, 94 Pa. St.351; 39 Am. Rep. Rep. 249 ; 111. Cen. R Co. v. Phillips, 49 
 
 787 ; New Orleans. J. & G. N. Ry. Co. 111. 234 ; 111. Cent. R. Co. v. Phillips 55 
 
 V. AUbritton, 38 Miss. 242; 50 Am. 111. 194; Spear v. Railway Co., 119 Pa. 
 
 1^" lu =. ^ , T, -, ^'- ^1 ; 12 Atl. Rep. 824 ; The Sidney, 
 
 2 Smith V. St. Paul Rai way Co., 32 27 Fed. Rep. 119 ; Hough v. Railroad 
 Minn. 1 ; .50 Am. Rep. 5o0; L. S & Co. 100 U. S. 213; Po?d v. Railway 
 MS. Ry. Co. V. Yokes 5 O. C. D. Co.. 110 Mass. 241 
 
 599. 
 
443 EVIDENCH. ? 252 
 
 The same rule is also recognized and applied to acci- 
 dents and injuries occurring in manufacturing indus- 
 tries.' 
 
 § 252. Accidents Inevitable and Unexpected. The 
 
 presumption arising from the derailment of cars may be 
 overcome b}^ evidence to the satisfaction of the jury, that 
 the injury complained of resulted from some inevitable 
 accident or from something against which human pru- 
 dence, skill, or foresight could not provide nor expect.^ 
 Yet a railroad company may be guilty of negligence in 
 not providing for catastrophes, or sudden storms, or for 
 failure to inspect its track and bridges ; " and will be held 
 liable for any accident or injuries occasioned by reason 
 of such failure. It will be held liable for accidents aris- 
 ing from or through a lack of knowledge or skill of its 
 engineers.* 
 
 But railroad companies will not be held liable for not 
 providing against the elements which any reasonable 
 skill, science, care or forethought could have prevented, 
 guarded against or anticipated, such as earthquakes or 
 sudden breakage of a rail from excessive cold weather. 
 For injuries arising from these causes railroad com- 
 panies are not responsible.^ But they are responsible 
 for injuries caused by floods and high water ;" or by freez- 
 ing weather and damage to property entrusted to their 
 care for transportation.' 
 
 In McPadden v. Railway Co., 44 N. Y. 478, an accident 
 occurred from a broken rail caused by excessively cold 
 
 1 Rosenfield v. Arrol, 44 Minn. 395 ; Brehm \. Railway Co., 34 Barb. N. Y. 
 20 Am St Rep. 584; Eagle Packet 256; Sullivan v. Phil. & Reading Co., 
 Co V. befries, 94 111. 598; Treadwell 30 Pa. St. 234. 
 
 V Whittier, 80 Cal. 575; 13 Am. St. This last case has been cited and 
 
 Rep. 575; Roberts v. Johnson, 58 N. approved end is recognized as au- 
 
 Y. 613; Robinson V. Railway Co., 20 thority. ^ ,, ^, 
 
 Blatchf 338; Daley V.American Print- i^ McPadden v. Railway Co., 44 N. 
 
 ing Co., 150 Mass. 77 ; Kelley v. Silver Y. 478 ; Baltimore & Ohio R. Co v. 
 
 SorinirCo 12R.I.il2. Sulphur Springs, 96 Pa. St., 65; 2 Am. 
 
 2 Phil & 'Reading R. Co. v. Ander- & Eng. Rd. Cases 170 ; Slater v. Rail- 
 sonrsV Pa. St. 351 ; 6 Am. & Eng. way Co. 29 S. C^96 ; 6 S. E^ Rep. 936 ; 
 Rd. Cases. 407, note ; 39 Am. Rep. 787 ; 35 Am & Eng. Rd Cases 625. 
 Kansas & Pac. Rd. Co. v. Lundin, 3 ''Chic etc. R R^ Co. v. Manning, 
 Col 94. 35 Am. & Eng. R. Cases, 618, 23 Neb. 
 
 skansas&Pac.Rd.Co.v.Lundin, 3 552 iswvo 
 
 p , OA ' McGraw v. Railway Co.. 18 W. Va. 
 
 ° Phi'l & Reading R. Co. v. Ander- 361; 9 Am. & Eng. R. Cases, 188. 
 son, 94 Pa. St. 351 ; 39 Am. Rep. 787 ; 
 
g 253 EVIDENCE. 44+ 
 
 weather. An hour before a train had passed safely over 
 the track. The court held that the company could not 
 have guarded against it and that the company was not li- 
 able becjause the train was derailed and an injury was 
 caused to the plaintiff. 
 
 In Slater v. Railway Co., supra, the accident occurred 
 by reason of an earthquake. The company was held 
 not liable because the accident was inevitable and 
 under no circumstances could have been anticipated. 
 
 These last mentioned accidents are termed accidents 
 by "Act of God." 
 
 § 253. Essential Elements of Proof. In all actions 
 for personal injuries, the burden of proof rests upon the 
 plaintiff to establish the negligence or failure of the de- 
 pendent to obey, do, or perform some duty imposed upon 
 it. With reference to the evidence of negligence neces- 
 sary to be shown and established in actions of this kind 
 it is incumbent upon the plaintiff to prove : 
 
 First. That there was a legal duty or obligation im- 
 posed by law upon the defendant to do or perform some 
 act towards the plaintiff.^ 
 
 Second. That there was a failure or neglect to obey or 
 perform such duty by the defendant in whole or in part.^ 
 
 Third. That the accident occurred and the injury 
 was caused to the plaintiff as the result and consequence 
 of such breach or neglect of duty." 
 
 Fourth. In some states the plaintiff must also show, as 
 a condition precedent to his right of recovery, that the 
 accident occurred without fault or negligence on his part 
 and that he did not know of any defect in the appliances 
 used, and which caused the accident and injury.* 
 
 In other states it is unnecessary to aver and prove that 
 the accident occurred without fault or negligence on the 
 part of the plaintiff contributing thereto." 
 
 r:on'^^,^f^^ ^- ^^^^^^y ^o., 57 Mich. 446 ; 9 Am. St. Rep. 865 ; Louisville, 
 
 58a Black on Accident and Proof. etc. Rd. Co. v. Wolfe, 80 Ky 82 • 
 
 ■:or, ^^^^ "■ Railway Co., 57 Mich. Louisville, etc., Rd. Co. v. Buck J 16 
 
 589; Black on Accident and Proof. Ind. 566 ; 9 Am. St. Rep. 883 ; Tames v. 
 
 .?^^n-*£*°°!,°.^'- Ry-Co. V. Caill- Emmet Mining Co., 55 Mich. 335; 
 
 outte, 79 Tex. 341 ; 15 S. W. Rep. 390 ; Coal & Car Co. v. Norman, 49 Ohio St! 
 
 f^^'- T'^f.^'S T^ ^'■°°^- ^98 : Railroad Co. v. Kassen, 49 Ohio 
 
 *Ohio & M. Rd. Co. V. Walker, 113 St. 230. 
 
 Ind. 196 ; 3 Am. St. Rep, 638 ; Evans- « Magee v. Railway Co., 78 Cal. 430 • 
 
 ville, etc., Rd. Co. v. Crist, 116 Ind. 12 Am. St. Rep. 69; Crane v. Railway 
 
445 EVIDENCE. J§ 254-255 
 
 It is alleging- a uegative which the plaintiff is not re- 
 quired to prove, as held by some authorities.' 
 
 § 254. Exceptions. Precedent Negligence. When- 
 the accident occurs and the injury is caused as the result 
 of the negligence and fault of the defendant to obey 
 some law or perform some duty preceding and existing 
 before and in force at the time of such accident, the 
 defendant is responsible therefor and liable for the dam- 
 ages, even if the plaintiff was guilty of contributory 
 negligence.' The negligence of the defendant however 
 must be the proximate cause of the injury, while the neg- 
 ligence of the plaintiff if any would what is called remote. 
 
 § 255. Fundamental Rules. The following rules 
 ma}' be accepted and followed with safety in the trial of 
 personal injurj- cases. The proof which is required to- 
 be offered to support the necessary allegations of the 
 pleadings and to fix a liability, and whether such evi- 
 dence is germain and within the reasonable limitation of 
 these rules, must, as far as possible, be determined be- 
 fore the trial. The practical application of these rules 
 can best be acquired by actual experience in the trial of 
 cases. These rules may be stated as follows: 
 
 First: The proof must be germain to the issue. It 
 must be confined to the time, place and cause. The facts 
 and circumstances which will show the accident and 
 injury and what occurred then and there are admissible. 
 Any fact and circumstance growing out of and concur- 
 rent with the accident and injury tending to show negli- 
 gence and fix the liability is admissible.^ 
 
 Co., 87 Mo. 588; Lee v. Troy Citizens' 2 Xalbot v. Railroad Co., 82 Mich. 66; 
 
 Gas Light Co., 98 N. Y. 115; Rolseth Ewing v. R. R. Co., 72 111. 25; Rail- 
 
 V. Smith, 38 Minn. 14; 8 Am. St. Rep. road Co v. Mosier, 101 Ind. 597; 
 
 637 ; Georgia Pac. Rd. Co. v. Probst, Hicks v. Railway Co. , 64 Mo. 430 ; F. 
 
 85 Ala. 203 ; Railroad Co. v. Harman, & P. M. R. Co. v. Lull, 28 Mich. 510 ; 
 
 83 Va. 553 ; O'Conner v. Railway Co., Coal & Car Co. v. Norman, 49 Ohio 
 
 94 Mo. 150; 4 Am. St. Rep. 364; Pot- St. 598; Railroad Co. v. Kassen, 49 
 
 ter V. Railway Co., 20 Wis. 553 Ohio St. 230; Kerwhacker v. Rail- 
 
 91 Am- Dec. 444 and note. road Co., 3 Ohio St. 172 (20th Cent. 
 
 1 Inland, etc. Co., 139 U. S. Rep. 551 ; Ed.) and extensive note. 
 
 Little Rock, etc. Rd. Co. v. Leverett, ■* Hermes v. Railway Co., 80 Wis. 
 
 48 Ark. 333 ; 3 Am. St. Rep. 230; Burns 590 ; 27 Am . St. Rep. 69 ; Hanover Rd. 
 
 V. Railway Co., 69 Iowa, 450 ; 58 Am. Co. v. Coyle, 55 Pa. St. 396. 
 Rep. 227 ; Gaynor y. Railway Co., 100 
 Mass. 208 ; 98 Am. Dec. 96 ; Lincoln v. 
 Walker, 18 Me. 234. 
 
255 EVIDENCE. 446 
 
 Second: Every subsequent fact and circumstance 
 showino' and establishing the full effect of the injury is 
 admissible/ 
 
 Third: Any declarations of the master or servant 
 standing in the place of the master, made at the time and 
 place as to the circumstances and causes which are the 
 incidents of and contributing to the accident or wrong 
 done and illustrative of it are admissible.^ 
 
 The admissibility in evidence of declarations or state- 
 ments relating to any act or accident or to any injury 
 done, is determined by the character of the declarations 
 made, and by certain limitations of time. The admissi- 
 bility of such declarations depends upon their relation to 
 the principal facts necessary to be established, and' 
 whether they complete and perfect the entire cause of 
 action, of which they themselves are a part. It some- 
 times becomes necessary to receive in evidence such dec- 
 larations, without which the right of recovery would fail, 
 and an injustice and wrong would be done. The reason 
 for the admissibility of such declarations is that they ex- 
 plain and show the cause of an act or accident, and the 
 result of the injury. 
 
 In Travelers Ins. Co. v. Mosley, 8 Wall. 397, where an 
 action was brought by the widow as beneficiary of a pol- 
 icy of insurance upon the life of her husband upon the 
 the trial evidence was received as to the declarations 
 made by the decedent as to how he received his injuries, 
 and his feelings about the same, made shortly afterwards 
 (he complaining and stating that he had hit the back of 
 his head by falling down a stairway) . The evidence was 
 objected to as not a part of the res gestae. The widow 
 and her son both testified as to what the decedent said 
 upon his return upstairs. The son also gave testimony 
 as to the effect of the injury as stated to him by his father 
 the next day. 
 
 'Hermes v. Railway Co., 80 Wis, 
 590 ; Hanover Rd. Co. v, Coyle, 55 Pa 
 St. 396. 
 
 V. Railway Co., 27 Minn. 166; 38 Am 
 
 29 Tex, Civ. App. 201 ; 25 Am.St. Rep. 
 720 ; Shafer v. Lacock, 168 Pa, St, 497 ; 
 North, Pac. R. R. Co. v. Urlin, 158 U. 
 S. 271; North Am. Assn. V.Woodson, 
 
 'i Hermes v. Railway Co., 80 Wis 
 Railway Co 66 Mich. 390 ; O'Conner 38 La. Ann. 381 ; Anderson v. N. Y. & 
 
 T. S. S. Co., 47 Fed. Rep. 38'; Ynt. & 
 
 Rep. 288 ; Insurance Co. v. Mosley, 8 G. T. R. R Co v Anderson 82 Teir 
 
 VL''l^^ll''m7'f'''''''\!''' '''■' Denver &'R.G.t"crv.loTlet, 
 19 Am. St. Rep. 883; Lewis v. State, 100 Fed. Rep. 7S8; 49 L. R. A. 77. 
 
447 EVIDENCE. § 255 
 
 Mr. Justice Swayne says: "Wherever the bodily or 
 mental feelings of an individual are material to be proved, 
 the usual expressions of such feelings are original and 
 competent evidence. Those expressions are the natural 
 reflexes of what it might be impossible to prove by any 
 other testimony. As independent, explanatory, or cor- 
 roborative evidence, it is often indispensable to the due 
 administration of justice. The 7'es gestae are the declara- 
 tions tending to show the reality of its existence, its extent 
 and character. The tendency of recent adjudications is 
 to extend rather than narrow the scope of the doctrine," 
 In Northern Pac. Hy. Co. v. Urlin, 158 U. S. 271, 
 Urlin received severe ajid dangerous wounds and internal 
 injuries in an accident where a car was derailed and 
 thrown down a bank. It was held competent to permit 
 physicians to testify as to stateinents made by him "at 
 various times to them thereafter in respect to his feel- 
 ings, aches and pains." 
 
 So in the case of North Am. Ace. Assn. v. Woodson, 64 
 Fed. Rep. 691, it was held competent to receive in evidence 
 the statements of the decedent as to the cause of the ac- 
 cident and how it occurred, made shortly thereafter, 
 citing Insurance Co. v. Mosley. 
 
 As said by Justice Harlan, quoting from Greenleaf on 
 Evidence: "The party's own admission, whenever made 
 may be given in evidence against him ; but the admission 
 of the declaration of his agent binds him only when it is 
 made during the continuance of the agency in regard to a 
 transaction then depending et dum fervet opvs. It is 
 because it is a verbal act and part of the res gestae that it 
 is admissible at all ; and, therefore, it is not necessary to 
 call the agent to prove it; but wherever what he did is 
 admissible in evidence, there it is competent to prove 
 what he said about the act while he was doing it." 1 
 Greenl. on Ev., par. 113. 
 
 " This court had occasion, in Packet Co. v. Clough, 20 
 Wail. 540, to consider this question. Referring to the 
 rule as stated by Mr. Justice Story in his treatise on 
 Agency (par. 134), that, 'Where the acts of the agent 
 will bind the principal there his representations, declara- 
 tions and admissions respecting the subject matter will 
 also bind him, if made at the same time and constituting 
 part of the res gestae,' the court, speaking by Mr. Justice 
 
§ 255 KVIDBNCE. 448 
 
 Strong, said : ' A close attention to this rule, which is of 
 universal acceptance, will solve almost every diflBculty. 
 But an act done by an agent cannot be varied, qualified or 
 explained, either by his declarations, which amount to no 
 more than a mere narrative of a past occurrence, or by an 
 isolated conversation held, or an isolated act done, at a 
 later period. The reason is that the agent to do the act 
 is not authorized to narrate what he had done, or how he 
 had done it, and his declaration is no part of the res ges- 
 tae.'' ' 
 
 The crucial test, therefore, in the federal courts is, 
 whether the declaration is made during the continuance 
 of the agency in regard to a transaction then depending, 
 et dum fervet opus. 
 
 As said in Del., Lack. & W. R. R. Co. v. Ashley, 14 C. 
 C. A. 368, where exception was taken to testimony as to 
 the declarations of plaintiff made after the accident: "The 
 learned judge thought it a part of the res gestae and 
 admitted it. We cannot say there was error in so doing. 
 In the nature of things, there cannot be a sharply defined 
 line between what is and what is not permissible as part 
 of the res gestae. In this debatable region a margin 
 must be left for the exercise of the sound discretion of 
 the trial judge. We cannot say that there was error com- 
 mitted in this regard in the present case. It is not 
 shown just how long after the accident Hoover arrived. 
 Certain it is Ashley was still lying in the caboose. He 
 was ' going on terrible, ' as the witness says. No physi- 
 cian had arrived, nor steps been taken to relieve him. 
 These spontaneous and repeated utterances from a man 
 in the condition of the plaintiff, while on the very spot 
 of the accident, and shortly following its occurrence, are 
 so closely connected with, and a part of, the accident it- 
 self, that it was not error to admit them." 
 
 In Waldele v. Railway Co., 95 N. Y. 274, the whole 
 subject of res gestae is learnedly and' thoroughly dis- 
 cussed by Justice Earl. The learned judge quotes with 
 approval Lund v. Tyngsborough, 9 Cush., 36, as 
 follows: "When the act of a party may be given in 
 evidence, his declarations made at the time, and calcula- 
 ted to elucidate and explain the character and quality of 
 the act, and so connected with it as to constitute one 
 transaction, and so as to derive credit from the act 
 
4*9 EVIDENCE. J 255 
 
 itself, are admissible in evidence. The credit which the 
 act or fact gives to the accompanying declarations as a 
 part of the transaction, and the tendency of the contem- 
 porary declarations as a part of the transaction to ex- 
 plain the particular fact distinguish this class of declara- 
 tions from mere hearsay, and further: ' Such a declara- 
 tion derives credit and importance as forming a part of 
 the transaction itself, and is included in the surrounding 
 circumstances which may always be given in evidence 
 to the jury with the principal fact. There must be a 
 main or principal fact or transaction; and only such 
 declarations are admissible as grow out of the principal 
 transaction, illustrate its character, are contemporary 
 with it, and derive some degree of credit from it. ' " 
 
 And he further says: "In Rockwell v. Taylor, 41 
 Connj 55, the rule was laid down thus: 'To make declar- 
 ations on this ground admissible, they must not have 
 been mere narratives of past occurrences, but must have 
 been made at the time of the act done which they are 
 supposed to characterize, and have been well calculated to 
 unfold the nature and quality of the acts they were in- 
 tended to explain ; and to so harmonize with them as to 
 constitute a single transaction.' " 
 
 The opinion then proceeds to discuss the New York 
 cases, and distinguishes the Luby case, 17 N. Y. 131, as 
 one where the declaration "was not made at the time, so 
 as to give it quality and character," and among other 
 cases that of Casey v. Railroad Co., 78 N. Y. 518, is ap- 
 proved, where a child had been run over and a police of- 
 ficer who went to the place of the accident immediately 
 after the child was killed and found the child under the 
 wheels of the car, was permitted to state vrhat the engi- 
 neer in charge of the engine said and did in extricating 
 the body of the child from under the wheels of the car. 
 
 Limitation of Time Within Which Such Declara- 
 tions are Admissible. This question is largely deter- 
 mined by the facts of each case, bearing in mind the 
 nature and character of the declarations. There is no 
 absolute, ironclad or invariable rule of limitation of time 
 when such declarations are, or are not admissible. 
 
 in Rawson v. Haigh, 2 Bing. 99, it is Said by Justice 
 Parks : " It is impossible to tie down to time the rule as 
 to declarations. We must judge from all the circum- 
 
 29 
 
I 255 EVIDENCE. 450 
 
 stances of the case. We need not go to the length of 
 saying a declaration made a month after the fact would 
 of itself be admissible, but if there are connecting cir- 
 cumstances it may form a part of the whole res gestae. " 
 
 This case is cited by Justice Swayne in the Mosley 
 case, where it was held that declarations made by the 
 decedent after he returned to his room upstairs, which 
 must have been several minutes, were admissible. 
 
 In Ward v. White, 86 Va. 212, an action for damages 
 for assault and battery, it was held : " The incidents or 
 declaration may be separated from the act by a lapse of 
 time more or less appreciable. They must stand in 
 immediate causal relation to the act." 
 
 Mr. Wharton says : "Declarations which are the 
 immediate accompaniments of an act are admissible as 
 res gestae, remembering that immediateness is tested by 
 closeness, not of time, but by causal relation." Whar- 
 ton on Neg., Sec. 258. 
 
 In North Am. Ace. Assn. v. Woodson, 64 Fed. 691, the 
 declarations were made by the decedent a few minutes 
 after the accident in explanation of how it occurred. 
 
 In Hermes v. Railroad Co., 80 Wis. 590 ; 27 Am. St. 
 Rep. 69, it was held that declarations niade by the con- 
 ductor of the train a few minutes after the accident as to 
 how he came to run over the child, and what he said about 
 it were admissible as res gestae. 
 
 In Hill V. Com., 2 Gratt. (Va.), 605, it is held : "All 
 that is necessary to make the declaration part of the res 
 gestae, is that it should be made recently after receiving 
 the injury, and before the party had time to make up a 
 story." 
 
 In Quincy Horse R. & Co. v. Gnuse, 1.37 111. 264, it 
 was held, that statements made by a street car driver 
 just after he had stopped the car, while the injured boy 
 was under it, were admissible as a part of the 7'es gestae. 
 
 In Hanover R. Co. v. Coyle, 55 Pa. St. 402, it appeared 
 that a peddler's wagon had been struck by a locomotive, 
 and the peddler injured. It was held, the declaration of 
 the engineer after the accident that the train was behind 
 time, to show negligence, was admissible. The court said: 
 
 "We cannot say the declaration of the engineer was no 
 part of the res gestae. It was made at the time, in view of 
 
45' EVIDENCE. 
 
 25& 
 
 the goods strewn along the road by the breaking up of 
 the boxes, and was a part of the very transaction itself." 
 
 This case is cited by Justice Swayne in the Mosley 
 case. 
 ^In Zoetter v. Railroad Co., 13 N. Y. S. 458, Aff. 129 N. 
 Y. 668, the declaration of an employe of a railroad com- 
 pany, who had caused an injury to a passenger that he 
 was sorry he had done it, immediately after the accident, 
 is admissible as part of the res gestae. 
 
 In Hooker v. Railroad Co., 76 Wis. 542, the testimony 
 of the engineer as to what he said about the accident as 
 soon as he stopped his train, after a collision with a per- 
 son walking on the track, and as he was going back to the 
 place of the accident, is a part of the res gestae. 
 
 In Brownell v. Railroad Co., 47 Mo. 239, where Brown- 
 ell received mortal injury, and upon being restored to 
 consciousness, said just before dying: "If it had not 
 been for that man who left the switch open ;" the declara- 
 tion was held admissible as part of the res gestae. 
 
 In Keyser v. Railway Co. , 66 Mich. 390, the action was 
 by the father to recover damages to his boy, who was 
 injured by a passenger train. The train was stopped 
 and backed up to the place of the accident. State- 
 ments made by the engineer to a stranger after the 
 accident, and when he reached the place, that he saw the 
 child a half a mile away and thought it was a pig, and did 
 not know what it was until he got very close to it ; and 
 that it raised up and faced the engine, and he did not 
 have time to stop ; that he applied the brakes and 
 reversed the engine, but couldn't stop, were admissible. 
 The court says : 
 
 "These statements of the engineer, made at the time 
 when the accident occurred, and at the time he backed 
 up the train, as to the circumstances and reasons he gave 
 for the management of the train, and how he came to run 
 upon him, were so connected with the acts complained of 
 as to become a part of the res gestae,''"' and "declarations 
 made by persons whose duty it was to make them in 
 order to constitute a part of the res gestae, are not re- 
 quired to be precisely concurrent in point of time with 
 the principal transaction if they spring from it and tend 
 to explain it, and are voluntary and spontaneous, they 
 are admissible." Citing the *Mosley and other cases. 
 
§ 255 EVIDENCE. 452 
 
 In Omaha, etc., Ry. Co. v. Chollette, 41 Neb., 578, where 
 a passenger received an injury in alighting from a train, it 
 was held proper to show the remark of a brakeman on 
 the train at the time of the accident. 
 
 In Elledge v. Railway Co., 100 Cal. 282, it was held that 
 the remark of a foreman of a mine when one of the 
 laborers received an injury from the fall of an overhang- 
 ing embankment was admissible. 
 
 In Linderbaugh v. Crescent Mining Co., 9 Utah, 163, 
 the plaintiff received an injury in the defendant's mine, 
 and was taken to a hotel. About half an hour after the 
 accident the foreman of the mine came in and asked: 
 *'How did this happen?" Whereupon a miner who was 
 with plaintiff said that a rock came down from a raise 
 and struck him. Held admissible as a part of the res 
 gestae. 
 
 A wanton and reckless remark of a foreman of the yard, 
 made in reply to a complaint of the pJaintiflf (a car 
 repairer) nineteen days before the time of his injury, of 
 the drunkenness of the yard switchman was held as res 
 gestae} 
 
 In State v. Molisse, 38 La. Ann. 381, it was held that 
 statements made by the decedent ten minutes after he 
 had been fatally shot were admissible as a part of the res 
 gestae. The court, in its opinion, quoting from Wharton 
 on Negligence (Sec. 262), say: 
 
 " Nor are there any limits of time within which the res 
 gestae can be arbitrarily confined." In Del., L. & W. R. 
 Co. V. Ashley, 14 U. C. A. 368, the declarations were 
 made several minutes after the accident. 
 
 In East St. Louis Ry. Co. v. Allen, 54 111. App., 27, 
 declarations made by the engineer and fireman of the 
 tram within ten minutes after the collision with a vehicle 
 were held admissible as res gestae against the company. 
 
 In Louisville & N. Ry. Co. v. Foley, 94 Ky. 220, 21 S. W. 
 86R, where a brakeman received an injury from a defec- 
 tive ear coupling, a declaration of a car inspector, made 
 ten minutes after the injury, that he had been troubled 
 with the couphng of the two cars where the brakeman 
 was hurt, was competent as res gestae. 
 
 iWabash Ry. Co. v. Brow, 65 Fed 
 Rep. 941. 
 
453 EVIDENCE. ? 25& 
 
 In Shafer v. Lacock, 168 Pa. St. 497, declarations of 
 the employes of the defendant, made while a fire was in 
 progress that it was caused by their carelessness were 
 held admissible. 
 
 In McLeod v. Ginther, 80 Ky. 399, the declarations of 
 the engineer, made a few moments after a collision and 
 while they were in search of the victims of the accident, 
 were held admissible. 
 
 In B. & O. Ry. Co. v. State (Md.), 32 Atl. Rep. 201, a 
 conversation that took place just before the accident was 
 held admissible as )'es gestae bearing upon the right of 
 the decedent to be where he was at the time of his injury, 
 
 Robert, J., in rendering the opinion, quotes fromi 
 Greenl. on Ev., section 108, as follows: "The affairs of 
 men consist of a complication of circumstances so inti- 
 mately interwoven as to be hardly separable from each, 
 other. Each owes its birth to some preceding circum- 
 stances, and in its turn becomes the prolific parent of 
 others ; and each during its existence has its inseparable 
 attributes and its kindred facts, materially affecting its 
 character, and essential to be known, in order to a right 
 understanding of its nature. These surrounding circum- 
 stances, constituting parts of the res gestae maj^ always. 
 be shown to the jury, along with the principal fact; and 
 their admissibility is determined by the judge, according 
 to the degree of their relation to that fact, and in the 
 exercise of his sound discretion, it being extremely diffi- 
 cult if not impossible, to bring this class of cases within 
 the limits of a more particular descriptio'n. " 
 
 InL., N. A. & C. Ry. Co. v. Buck, 116 Ind. 566, an, 
 action was brought by a widow for damages for causing- 
 the death of her husband, a brakeman, who received an- 
 injury from which he died six hours later. On the trial 
 it was held admissible to receive in evidence declarations 
 made by decedent two minutes after the accident as res 
 gestae. The court stated the rule to be : 
 
 "Any declarations which are the natural emanations 
 or outgrowth of the act or occurrence in litigation,, 
 although not precisely concurrent in point of time, if they 
 were yet voluntarily and spontaneously made, so nearly 
 contemporaneous as to be in the presence of the trans- 
 action which they illustrate and explain, and were made 
 
? 255 EVIDENCE. 454 
 
 under such circumstances, as necessarily to exclude the 
 idea of design or deliberation, must, upon the clearest 
 principles of justice, be admissible as a part of the act 
 or transaction." ' 
 
 What a conductor said after allowing a passenger to get 
 back on the car, because he had become convinced that 
 he had paid his fare, although he had put the passenger 
 o£P because he thought he had not paid the fare, is a part 
 •of the res gestae of the ejection.^ 
 
 The Supreme Court of Ohio subsequently laid down the 
 rule as to what declarations are res gestae, in the case of 
 Insurance Co. v. Cheever, 36 Ohio St. 201, in the follow- 
 ing language : 
 
 "There is no doubt that where evidence of an act done 
 by a party is admissible, his declarations made at the 
 time, explanatory of the act tending to elucidate it are 
 also admissible, as a part of the res gestae, " and further 
 saying that the declarations should relate to the act, and 
 explain it, to become competent. 
 
 The authorities might be largely multiplied upon this 
 subject. They establish the following principles: 
 
 1st. The time of limitation within which declarations 
 are admissible is flexible and governed by the facts and 
 circumstances of the case. 
 
 2d. The character of the declarations embrace 
 two classes, viz : 
 
 a Declarations relating to and showing the cause of the 
 act, accident or Wrong. 
 
 G Declarations descriptive of the result of the injury. 
 
 As said in Hough v. Railway Co., 100 U. S. 612, these 
 principles are the general principles of common law. 
 They have been accepted and adopted by most of the 
 state courts, and have been frequently cited and 
 approved. 
 
 iSee further upon this rule: Lund Entwhistle v. Feighner, 60 Mo 215- 
 
 ■V. Tynsborough, 9 Cush., 41 ; Augusta McLeod v. Ginther, 80 Ky 399- 
 
 Factory V. Barnes, 72 Ga., 217 ; People Denver & R. G. R Co. v Roller 100 
 
 V. Simpson, 48 Mich. 474 ; Keyser v. Fed. 738, 49 L. R. A. 77, and authori 
 
 Chic. & G. I.^iy. Co., supra; Little ties cited. 
 
 Rock R. Co, V. Leverett, 48 ArU. 33.S 
 Kirby v. Commonwealth, 77 Va. 681 
 Durkee v. Railroad Co. , 69 Cal. 533 
 Elkins V. MoKean, 79 Pa. St. 493 
 
 "Robinson v. Superior Rapid 
 Transit Ry. Co., 94 Wis. 345, 34 L. R. A. 
 205 ; Hooker v. Railway Co., 76 Wis. 
 542 ; Reed v. Madison, 85 Wis. 667. 
 
455 EVIDENCE. g 255 
 
 Fourth. Such facts and circumstances and declara- 
 tions are the res gestae where they stand in immediate 
 causal relation to the act, accident, or wrong, occurring 
 or done and made et dxmifervet opus.^ 
 
 Fifth. They may be separated from the causal act, 
 accident or wrong by a more or less appreciable lapse of 
 time.^ 
 
 Sixth. Any facts and circumstances showing that 
 other or similar accidents had previously occurred at 
 other times and places and relating to other persons, 
 more or less remote are collateral and inadmissible.'' 
 
 Seventh. But such facts would be admissible, when 
 they would show and establish the negligence of the 
 defendant in failing to perform some duty imposed by 
 Jaw; when they would show the negligence of the defend- 
 ant in the employment of unfit, improper, and incompe- 
 tent servants, whose incompetency caused the accident 
 or contributed to it by reason of becoming intoxicated in 
 the discharge of their duties; or when they would show 
 and establish a negligence in the specific accident and 
 injury, or were the natural cause of it.' 
 
 Eighth. When damages are claimed for a partial or 
 total disability caused or produced by the injury, the 
 extent and nature thereof as developed at that time and 
 its future and continuous effect must be shown to entitle 
 a recovery for such disability.' 
 
 Ninth. This diminished and permanent disability may 
 be shown by his physical health and earning capacity and 
 
 ^Authorities cited under note 3. gomery Rd. Co. v. Ashcraft, 48 Ala. 
 
 Int. & G. T. R. R. Co. v. Anderson, 15 (49 Ala. 305). In this case it was 
 
 82 Tex. 516, 27 Am. St. Rep. 902. he d that in an action for damages 
 
 2 Ward V. White, 86 Va. 212, 19 Am. for personal injuries to a passenger 
 
 St. Rep. 883 ; Cliic., etc. R. R. Co. v. on a train occasioned by the train 
 
 Becker, 128 111. 545, 15 Am. St Rep. running off the track, it was compe- 
 
 144 ; Insurance Co. v. Mosley, 8 Wall. tent to show that the same train had 
 
 397 ; Harrimau v. Stows, 57 Mo. 93. run off the track seven or eight 
 
 ^District of Columbia v. Armes, times at the same place within a 
 
 107 U. S. 519; Smith v. Sherwood month previous to the accident. 
 
 Twp., 62 Mich. 159 ; Ashtabula v. ' City of Joliet v. Conway, 119 111. 
 
 Bartram, 2 Ohio Circ. Dec. 372 ; Shaw 489, 10 N. E. Rep. 223; Grand Rap. 
 
 v. Railway Co., 123 Mich. 62; 49 L. & I. R. Co. v. Martin, 41 Mich. 667; 
 
 R. A. 308. Elkhart v. Ritter, 66 Ind. 136; Con- 
 
 ■•Laning v. Railroad Co., 49 N. Y. ner v. Pioneer Fire Proof Con. Co., 
 
 521 ; Baulec v. Railroad Co., 59 N. Y. 29 Fed. Rep. 629 ; Beiseigel v. Rail- 
 
 356; Mich. Cent. Rd. Co. v. Gilbert, road Co., 40 N. Y. 9: Hanover R. R. 
 
 46 Mich. 176; Holmes v. Clarke, 4 Co. v. Coyle, 55 Pa. St, 396. 
 West. Rep. 405; Mobile & Mont- 
 
^ 256-257 EVIDENCE. 456 
 
 value of the same now in and to his trade, business or 
 profession before and his health, condition and earning 
 capacity since the injury, and also its probable future 
 effect/ 
 
 § 256. General Loss. How Shovrn. The injured 
 person may show any circumstance or any fact which is 
 eotemporaneous with and illustrative of the causal fact 
 of the injury and wrong and which are proper and relevant 
 to establish the injury, its cause and extent, and to satisfy 
 the court and jury that an injury and loss have been 
 sustained by 4!€^son thereof. The question of the admis- 
 sibility of the evidence belongs to the court. If proper, 
 its importance and weight belong to the jury. If the 
 injury caufees a loss in the value of the services of the 
 person in and to his trade, business or profession, 
 whether temporary or permanent, any fact or circum- 
 stance tending to show such loss are proper and admis- 
 sible. The injured person has the right to show the loss 
 of earnings if he was receiving a salary, or the value of 
 his services to his business or profession whatever it 
 may be. 
 
 The jury are to consider and determine from the evi- 
 dence whether any loss has been sustained, and if any, 
 to award the amount of the damages sustained. The 
 court has the right to decide and determine whether the 
 injured person claiming damages is engaged in a lawful 
 business. If he is not, the court should so instruct the 
 jury and direct a verdict for the defendant.' 
 
 But every circumstance and fact which will show a loss 
 in a legitimate trade, business or profession are proper 
 to be received and weighed and considered by the jury. 
 
 § 257. Res Gestae. Cotemporaiieous Facts. Any 
 
 fact or any circumstance which occurs at the time of the 
 accident and injury, or any declaration, or any state- 
 ment, or admissions of knowledge, made at the same 
 time, are admissible if they come within the rules and 
 such relations and conditions as to form a part of the res 
 gestae." 
 
 1 Authorities cited in note 10, 61 How. Pr. 350 ; Richmoud & D. Rd. 
 
 Chap. 6. Co. V. Hammond, 93 Ala. 181, 9 South. 
 
 ' Chapter 6, post. 577 ; i^iule Rock Min. & Tex. Rd. Co. 
 
 SMcKeigue v Janesville, 68 Wis. 50, v. Leverett, 48 Ark. 333, 3 Am. St. R. 
 
 31 N. W. 298 ; Merkje v. Bennington, 230, 3 S. W. 50; Fordyce v. McCants, 
 
 58 Mich. 156 ; Wadele v. Railroad Co., 51 Ark. 509, 4 L. R A 296 
 
457 EVIDENCE. § 258 
 
 In Cleveland, C. & C. R. Co. v. Mara, 26 Ohio St. 185, it 
 was held that the djang declarations of the injured 'party 
 were inadmissible. In . Insurance Co. v. Tobin, 32 Ohio 
 St. 78, it was held proper and admissible to show as res 
 gestae the statements made by the captain of the vessel, 
 just as she was sinking. 
 
 What is Kes Gestae ? Bes gestae embraces those cir- 
 cumstances which are the incident of the particular act 
 and illustrations of it. They must stand in immediate 
 causal relation to the act, but may be separated from it.^ 
 
 Res gesiae mean the circumstances and facts and dec- 
 larations which grow out of the main facts are cotempo- 
 raneous with it and serve to illustrate its character.^ 
 
 Wliat is not Res Gestae? In cases where death en- 
 sues as the result of the injury, and the action is brought 
 under the statute by the next of kin or by a legal repre- 
 sentative for their benefit, if any fact, circumstance or 
 declaration is not admissible under the rule of res gestae, 
 they cannot be shown in this class of cases.^ 
 
 But this question has been decided both in the affirm- 
 ative and in the negative. 
 
 § 258. Evidence of the Plaintiff. In actions for 
 damages for personal injuries, the injured person may 
 testify to the pain suffered and endured by him on ac- 
 count of the injury, — to any internal effects and conditions 
 perceptible to the senses.' 
 
 He may exhibit to the jury any part of his person, 
 showing and illustrating the injury.^ 
 
 iWardv White 86 Va. 212, 19 Am. and competent (altbough affirming 
 
 St R 88;i ■ Lewis v. State, 29 Tex. the general rule) when offered by the 
 
 App 201, 25 Am. St. R. 720 ; State v. defendant, and they affect the case id 
 
 Matthews, 98 Mo. 125 ; Chic, etc., Rd. the same way they would have affected 
 
 Co. V. Becker, 128 111. 545, 15 Am. St. the decedenthad he lived and brought 
 
 P 144 the action. Waldele v. N. Y. Can. R. 
 
 2He;-mes v. Railroad Co., 80 Wis. R. Co.. 95 ^ Y 674 47 Am. Rep. 41; 
 590, 27 Am. St. R. 69 : Keyser v. Rail- Cooley on Tor U 264 ;Citv of Brad- 
 road Co., 66 Mich. 390; O'Conner v. ford v. Downs, 126 Pa. St. 622 Penn 
 Soad'co , 27 Minn. 166, 38 Am. R. etc.. Railroad Co. v Long 94 lnd^250; 
 
 ^%\L 566, 9 Am. St. R. 883, 2 L. R. Wi. U9, ^^K. 3o0^, Cre^d^v. 
 
 3perigo V Railroad Co., 55 Iowa, Co. v. Hecht, 115 Ind. 443, 17 N. E. 
 
 3"6 ■ Lord V. Pueblo Smelting & Re- Rep. 298. t. ,v»r inn TnH 
 
 fining Co., 1 2 Col. 390, 21 Pac Rep. « Indiana Car Co. v. P<-rker, 100 Ind. 
 
 148. In this last case the declarations 181. 
 of the deceased were held admissible 
 
i I 259-260 EVIDENCE. 458 
 
 He may also testify to any manifestation or develop- 
 ment' of Bright's disease of the kidneys, or of hernia, if 
 they are the consequences of such injury, or to any dis- 
 ease caused thereby/ 
 
 § 259. Evidence of Unskilled Witnesses. The tes- 
 timony of witnesses of ordinary judgment and average 
 intelligence is admissible where they testify to facts and 
 circumstances which take place within their own obser- 
 vation, which do not require any special skill or knowl- 
 edge to comprehend them and which relate to the ordi- 
 nary injuries and sickness of those with whom they have 
 associated or consorted.^ 
 
 in Nichols v. Railroad Co., 30 Hun. 437, the witness, 
 who had slept with the plaintiff, was permitted to testify 
 as to the exclamations of pain three months after the 
 injury.' 
 
 In St. Louis & San Francisco Rd. Co. v. Murray, 55 
 Ark. 248; 29 Am. St. Rep. 32, where exclamations of pain 
 made by the plaintiff at or near the time of the injury 
 were held admissible; but whether true or feigned was a 
 question for the jury. ' 
 
 The same rule is adopted in Atchison, T. &. S. F. Rd. 
 Co. V. Johns, 36 Kan. 769, 59 Am. Rep. 609. A larger 
 number of authorities are cited in the opinion.* 
 
 But the contra doctrine is held in Roche v. Brooklyn 
 City Railroad Co. 105 N. Y. 294, 59 Am. Rep. 506. 
 
 § 260. Evidence of Physicians. Any physician of 
 reputation and recognized standing in his profession may 
 give his testimony as an expert as to the nature and 
 extent of the injury received when he has attended the 
 injured person ; ' or even when his knowledge is obtained 
 
 ,Ql*^'^yt.°*'o^?/P^°l'j- ^^''^"' '^^ ^1'- 314; Schroeder v. Railroad Co., 47 
 
 f\ ' H^'°.h?^^^^- ^°c."'- ^"^*' ^ 15 I°«^^> 375 ; Evansville & T. H. Rd. Co. 
 
 2 i^if • ^^ ^- ^- ^,^P-- l^^:.o "■ C"^t' 1^6 Itnd. 446, 9 Am. St. R. 865. 
 
 2Sydlemauv.Beckwuh,43Comi.-9; ^ Cleveland etc. Rd. Co. v Newell 
 
 .^''^"Ja ^-J^ "• Steamboat Co., 109 104 Ind. 264, 54 Am. Rep. 312 
 
 p/'lt ifi,' wn"Fr° J- S'r^°«' II ^l^ouisville, etc. Rd. Co. v. Wright, 
 
 ^•' ?Sq^U ?'^'°*^ ''• Y?? ^'"■^"' 33 115 Ind. 378, 7 Am. St. Rep. 432 
 
 Mich. 49, 20 Am. Rep. 668. Evansville,etc. Rd. Co. v. Crist 116 
 
 n ^r^\^°T%' ^Vi ^^l' ^ ^"- I"'^- 44- 9 Am. St. Rep. 865 ' 
 
 R. 146; Bull v. Railroad Co., 31 N. Y. ' 
 
459 
 
 EVIDENCE. -^ 261-262 
 
 upon statements made to him by such injured pers6n de- 
 scriptive of pains and symptom's/ 
 
 Physician's Testimony as to Future Attendance 
 Inadmissible. A physician's testimony that a person 
 will require future attendance by reason of an injury on 
 an average of twice a week is incompetent as invading 
 ■either the field of baseless conjecture or that of common 
 knowledge, where the expert may guide though he may 
 mislead the jury.^ 
 
 § 261. Proof wlien Person is Mutilated. Where a 
 person has received any injury which results in the 
 crushing or mutilating of his arm or leg or any other 
 member of his body, and he brings an action for damages 
 therefor; when he proves the injury, the crushing and 
 mangling of the member or part, and the effect and ex- 
 tent of the injury, it is not necessary to offer any other 
 evidence to show that he suffered pain or that the injury 
 will impair his ability to pursue his trade, business or 
 profession ;' or that the injury will affect his earning 
 capacity or ability to earn money.* 
 
 ^ 262. Proof in case of Death. Adults. In eases 
 of death of an adult, where a cause of action is saved or 
 created bj' statute, the damages are the pecuniary loss 
 or injury sustained by those who are beneficiaries or by 
 the next of kin as named in the statute ; and to entitle 
 such beneficiaries to any judgment, they must show that 
 they have sustained a loss. To do so, evidence must be 
 offered to show and establish the value of the decedent's 
 life to them. His age, health, habits of life, earning abil- 
 ity, his position in society, bis expectancy of life, the 
 wages which he was actually earning, and his disposition 
 to be industrious and frugal, are all factors in whole or 
 in part necessary to be shown to enable the jurj?- to deter- 
 
 'Louisville, etc. Rd. Co. v. Snyder, v. Woodman, 41 Me. 177,66 Am. Dec. 
 
 117 Ind. 435, 10 Am. St. 60 ; Johnson 219 ; Louisville, etc. Rd. Co. v. Falvey, 
 
 V. Railroad Co., 56 Vt. 707 ; Gr. R. & 104 Ind. 409, 3 N. E. 8«9; Roger's 
 
 I. Rd. Co. V. Huntley, 38 Mich. 537, Expert Testimony. 26809. 
 
 31 Am. R. 321 ; Strohm v. Railroad ^seiigck v. Janesville, 100 Wis. 157, 
 
 ■Co.,96N. Y. 305 Braut v. City of 47L. R. A. 691. 
 
 Ivyons, 60 Iowa 172 ; Louisville, etc. 'Chic. etc. Rd. Co. v. Warner, 108 
 
 Hd. Co. V. Wright, 115 Ind. 378, 7 111., 538. Chapter 4. supra. Sec. 
 
 Am. St. 432, 16 N. E. 145; Atchison, <Texas, etc. R. R. Co. v. O'Donnell, 
 
 T. & S. F. Rd. Co. V. Thul. 32 Kan. 58 Tex. 27. 
 •255, 50 Am. R. 484, in 488; Hammond 
 
?§ 263-264-265-266 • EVIDENCE. 460 
 
 mine the amount of damages. But many of these ques- 
 tions are more fully discussed in the chapter on pecuni- 
 ary loss from death by wrongful act.^ 
 
 § 263. Proof ill Cases of Death. Minors. In eases 
 of the death of a piinor the jury may consider the value 
 of the services of the decedent infant from the time of 
 his death to his majority less the expenses of his main- 
 tenance.^ ' 
 
 It is not necessary nor is it required to offer any evi- 
 dence to show the earning capacity of such minor. The 
 value of such services the jury are presumed to know 
 and consider in making up their verdict.'' 
 
 § 264. Marriage of Surviving Husband or Wife. 
 
 The subsequent marriage of the husband or the wife, 
 in case the death of one of them had been caused by neg- 
 ligence of the defendant, against whom the surviving 
 husband or wife has a right of action, does not affect the 
 question of damages nor mitigate the amount to be 
 allowed.* 
 
 § 265. Reasonable Doubt. The plaintiff is not re- 
 quired to produce evidence which will show and estab- 
 lish the injury and its effects upon his person beyond a 
 reasonable doubt before he is entitled to a recovery for 
 the damages sustained. He is only required to show his 
 injury by a fair preponderance "of evidence ; ^ and its 
 weight is to be determined by a jury. 
 
 § 266. Indebtedness of tlie Plaintiff. Limitation 
 
 of Amount of Recovery. The defendant will not be 
 permitted to show that the decedent was largely in debt 
 at the time of his death and that it was only "liable for 
 
 iKelley v. Cent. Rd. Co. 5 McCrary, ^Georgia, etc. Rd. Co. v. Garr 57 
 
 (U. S.) 6.53 ; Louisville, etc. Rd. Co. v. Ga. 277, 24 Am. R. 492 ; Davis v 
 
 Goodykoontz, 119 Ind. Ill, 12 Am. Guaniierni,45 Ohio St. 470 4 Am St" 
 
 St. R. 371, ti375 ; Haug v. Railway R. 548. >:- , v, /im ol. 
 
 Co., 77 N. W. 102. Chapter 22, supra. *Hartwig v. Railroad Co., 49 Wis 
 
 ^LittleRock, etc. R.R. Co. V. Barker, 358; Kelley v. Railway Co 70 Mo 
 
 33 Ark. 350, 34 Am. R. 44; Rockford, 604; Pitts v. Railway Co '59 Wis' 
 
 etc. R. R. Co. V. Delaney, 82 111. 198, 323 ; Seyboll v. Railway Co ', 95 N. Y. 
 
 ^^5 Am. R. o08 662 ; Hart v. Hudson River Bridge Co., 
 
 »Ihl V. Street Ry. Co, 47 N. Y. 317, 80 N. Y. 622 ; Alpena v. Churchill, 53 
 
 7 Am. Rep. 450 ; Grotenkemper v. Mich. 607 ; Telford v Frost 76 Wis 
 
 Harris, 25 Ohio St. 51 1 ; Brunswig v. 172, 44 N. W. Rep 835- Jones v" 
 
 White, 70 Tex. 504; Louisville, etc. Greaves, 26 Ohio St. 2 ; Tread well v' 
 
 ?o \^°J- Goodykoontz 119 Ind. Ill, Whittier, 80 Cal. 571, 13 Am. St. Repl 
 
 12 Am. St. Rep. n., p. 381. Chapter, 175. ^ 
 iupra 22. 
 
461 EVIDBNCB. ?§ 267-268-269 
 
 such an amount wKieh the deceased would earn beyond 
 the period which his net earnings would liquidate his 
 .indebtedness.^ 
 
 § 267. Special Damages. Whenever an injui-ed per- 
 son claims damages from following any particular trade, 
 business or profession they are called special. Special 
 allegations are required to be alleged in the pleadings 
 when such damages are claimed. 
 
 For the same reason, evidence showing the nature and 
 extent of these special damages must be produced.'' 
 
 How the plaintiff has sustained such damages come 
 within the province of his particular occupation and the 
 evidence must conform to it.' 
 
 § 268. Loss of Partnership. In actions for damages 
 for personal injuries it has been held proper to show that 
 the injury to the plaintiff caused him to lose all interest 
 in an enterprising and profitable partnership business.* 
 
 Any loss or injury to a party of this character would 
 be admissible whatever the nature of the business so 
 long as it was legitimate.' 
 
 § 269. Loss of Literary Emoluments. It is also 
 proper and competent to admit and receive in evidence 
 any proof tending to show that the injured person was 
 engaged in literary work, and was a contributor to stand- 
 ard literary magazines, upon which he was dependent 
 for his support, both present and in the future ; and that 
 he was prevented by the injury from engaging in that 
 kind of work and from earning the same amount of money 
 after the injury as he did previous thereto." 
 
 Such person will also be permitted to show whether he 
 is prevented from following such work in whole or in 
 part ; to what extent such loss may be and ths probable 
 
 1 Penn. etc. R. Co. v. Henderson, 51 ' Chapter 2, supra, Sec. 13, p. 17, N. 
 Pa St 315 1; Taylor v. Monroe, 43 Conn. .S6 ; 
 
 2 Conner' V. Construction Co., 29 Logansport v. Justice, 74 Ind. 378; 
 Fed 629 : Roberts v. Graham, 6 Wall. Joslin v. Railway Co., 53 Mich. 323. 
 578; Treadwell v. Whittier, 80 Cal. international & Great Norlhern 
 575 South Covington, etc. Rd. Co. v. Railroad Co. v. Irvine, 66 Tex. 529, 
 Ware, 84 Ky. 267; Harding v. Rail- 23 ^m. & Bug Rd. Cas. 529. 
 
 road Co., 56 Mich. 628 ; Coal & Car Co. ' S.lsby v. Mich. C.\r Co., 95 Mich. 
 
 V.Norman, 49 Ohio St. 598; Hunter 204. " 
 
 V Stuart 47 Me 419- Heirn v. Mc- "District of Columbia v. Wood- 
 
 Caughan • 32 Mkl 17, 66 Am. Dec. bury, 136 U. S 450 ; Ehrgott v. Mayor, 
 
 588 ; Adams Express Co. v. Egbert, 36 etc., 96 N. Y. 264. 
 
 Pa. St. 360, 78 Am. Dec. 382. 
 
^ 270 EVIDENCE. 46'^ 
 
 continuance of the disability.^ All kiYid red work would 
 be governed by this general rule. 
 
 § 270. Interest. When a verdict has been agreed 
 upon as the amount of .damages for personal injuries or 
 wrong done, it has been held by some authorities that 
 interest might be computed and added from the date of 
 injui'y.^ Other authorities hold that interest .cannot be 
 added to such damages." 
 
 There is no question but the verdict will draw 
 interest from the date of its rendition. The reason for 
 it is that the verdict and judgment entered thereon make 
 the damages an adjudicated and fixed indebtedness for 
 the payment of which the defendant from such date is 
 bound and liable. Still it may be regarded as an unset- 
 tled question whether interest can be added to the amount 
 of verdict by the jury, although the weight of authority is 
 undoubtedly against the allowance of interest. The gen- 
 eral practice is for the jury to award a certain fixed 
 amount, without any reference to interest whatever. 
 
 In Cent. R. R. Co. v. Sears, 66 Ga. 490-551 (1881), the 
 court said : " It is held in actions of tort, the jury may 
 in their discretion calculate interest on the damages 
 actually sustained and add it to their verdict but it has 
 long been a controverted question whether in actions of 
 tort interest should be given as a matter of right in 
 addition to the damages. " It was held in a subsequent 
 case in Georgia that unliquidated damages arising ex 
 delicto, as a matter of law do not bear interest.' 
 
 In Eli V. Railroad Co., 1 N. Dak. 336 (1891), it was held 
 that interest may be withheld or awarded at the discre- 
 tion of the jury. In the District of Columbia the rule 
 has been adopted that the jury may in their discretion 
 allow in their verdict interest on the money actually paid 
 and expended by the injured party by way of damages.^ 
 
 But in Pennsylvania the jury were instructed to allow 
 interest on the damages they may award from the date of 
 the accident to the date of the verdict, and it was held 
 
 1 Chapter 6, sufira, Sec. 55. Co. v. Taylor, 104 Pa. St. 306 ; Rat- 
 
 « Fowler v. Railroad Co., 1 8 W. Va. ^^1^5, ^- Cliapman, 79 Ga. 574. 
 579 'Western & C. R. R. Co. v. Brown, 
 
 102 Ga 13 (1897), 29 S. E. Rep. 130. 
 
 3 Western & Atl.Rd. Co. V.Young, « Washington, etc. R. r: Co. v. 
 
 83 Ga. 612, 12 Am. St. 320 ; Railroad Hickey, 12 App. Cas. (D. C.) 269 (1898). 
 
463 EVIDENCE. 
 
 27a 
 
 error, the court adding, interest at the legal rate could 
 not be added by the jury at their discretion to the dis- 
 cretionary damages awarded by them for a personal 
 injury.' 
 
 In actions for causing death by statute, in New YorJr, 
 
 , where final judgment is rendered for the plaintiff, the 
 
 clerk must add to the sum so awarded interest thereupon, 
 
 from the date of the decedent's death and include it in 
 
 the judgment.^ 
 
 Special damages when computed upon direct or indirect 
 evidence of actual values can be increased by adding 
 interest/ 
 
 It seems that the rule that interest should not be com- 
 puted upon the amount of damages found by the jury 
 from the date of the injury is based upon the following 
 reasons, to-wit : 
 
 First. That the damages are unliquidated. Until the 
 verdict is returned the right of action to recover dam- 
 ages is a claim asserted by the plaintiff and denied by the 
 defendant and the amount is an unknown quantity, if any. 
 
 Second. The tendency of most juries is to be liberal and 
 it is safe to say that the verdict in the majority of cases at 
 least is large enough to cover any question of interest 
 which the plaintiff might be entitled to have added to the 
 true amount of damages. 
 
 Third. In many cases the real extent of the injury 
 and the full amount of the damages to which the plaintiff 
 may be entitled are not known or discoverable at the 
 time of the injury, but after a lapse of time the effect of 
 the injury becomes manifest and the damages may be more 
 correctly ascertainable than when the injury is received. 
 These facts may be shown on the trial and it is proper to 
 presume that the jury take them into consideration in 
 
 1 Plymouth Township V. Graver, 125 3£)uryee v. Mayor, etc., 96 N. Y. 
 Pa. St. 24 (1884) ; Pittsburgh, etc. Ry. 477 (1884) ; Washington, etc. R. R. Co. 
 Co. V. Taylor, 104 Pa. St. 306(1883). v. Harmon, 147 U. S. 571 (1892); 
 
 2 Manning v. Port Henry, etc. Co., Waterman v. Railroad Co., 82 Wis. 
 91 N. Y. 665 (1883); 27 Hun. 219; 613 (1892); Sounenfeed Millinery Co. 
 Chapter 78, Laws 1870; Banks Ann. v. Railway Co., 59 Mo. App. 668 
 CodeCin. pro. 1888; Salter v. Rail- (1894); Western, etc R. R. Co. v. 
 road Co., 86 N. Y. 401 (1881) ; Erwin Young, 81 Ga. 397 ; Jamison v. Rail- 
 V. Neversink Steamboat Co., 23 Hun. way Co., 42 N. Y. Supp. 915 (1896). 
 578 (1881). 
 
?? 271-272 EVIDENCE. 464 
 
 making up the verdict. The questions of' allowance of 
 interest should be eliminated from the jury and be dis- 
 allowed. 
 
 Exception. The exception to this rule is where death 
 follows from the injury. In that class of cases the 
 amount of damages become fixed and ascertainable at 
 the time of death. 
 
 § 271. Exhibition of Injured Part. The plaintiff 
 may exhibit to the jury the injuries upon his body or any 
 member thereof.-^ 
 
 It is a matter of discretion and a personal privilege 
 with the plaintiff. It is best that it should be don^, 
 when it can be done with propriety and decency. The 
 court should protect the plaintiff from any attempt to 
 abuse or humiliate him. 
 
 The court, when this is done, may direct the injured 
 person in the presence of the jury, to perform such acts, 
 as will test the extent or natural and reasonable effect of 
 the injury.^ 
 
 In Illinois whether the plaintiff may exhibit the injured 
 part to the jury is said to rest within the discretion of 
 the trial court. ^ 
 
 In the trial of an action to recover damages caused 
 by the bite of a dog, it was held three years and nine 
 months after the expiration of the time during which the 
 plaintiff alleges he suffered from the bite, to be error to 
 permit him to exhibit his limb, without any testimony 
 tending to show that it had changed for the worse.' 
 
 § 272. Surgical Examinations of Injured Person. 
 
 It has been a question of considerable controversy and 
 a subject of much discussion by the courts, whether they 
 
 \l^n^l^^^.t7^°^^""^'VJ°rl' "°rtby V. Township of Greene. 95 
 ^% laao ' ? V. Lowery, 122 lud. Mich. 93 (1893). 
 
 Woid Tl'd InT' M4 h887, ^l ^""^^ . " ^o^'^^'^ ^- «'• ^^^^ * ^uluth Rd. 
 vvooa, iid ind. 544 (1887 lud. Car Co., 33 Miun 130 S3 Am R 14 
 
 47 Iowa 37! 'aSS^t'^;,^'-''"^^*^ '^°- . ' ^^^"'^^ V.Wilkinson, 93 Mich. 322, 
 ^ lowa, d/o (1887) , Cunningham v. 53 N. W Ren 530 
 Railway Co., 4 Ulah206 (1885) ; Lang- "^ '^- "'^ ^^P- *"*"■ 
 
465 EVIDENCE. J 272 
 
 have the right and power to compel the injured person to 
 submit to an examination for the purpose of determining 
 and showing by medical expert testimony the nature and 
 extent of the alleged injury. There are respectable 
 authorities on both sides of this question. 
 
 It involves the injury, by whom, in whose presence, 
 and to what extent shall such examination be made, if 
 the court assumes to exercise the power. 
 
 It also involves the question of expert testimony. Is 
 it to be determined ex parte, before or after the commence- 
 ment of the trial if an application is made to the court 
 for a physical examination? 
 
 Shall such examination be made by the hired and 
 retained surgeon of the defendant (if the defendant be a 
 railroad corporation) or by the attending physician of the 
 plaintiff? Shall such examination be made privately or 
 before the jury? How far shall the examination be 
 carried if the physicians disagree or differ in their diag- 
 nosis? How far shall the private rights or privilege of 
 the person be invaded or protected, if the physicians 
 choose to abuse or overreach the privilege or authority 
 imposed in them? The natural curiosity or indifferent 
 regard for the sacredness of personal rights have led 
 some physicians and even courts to invade private rights, 
 and make the examination a species of inquisition, rather 
 than an inquiry into the merits of the real injury actually 
 received. 
 
 These are some of the facts and conditions which con- 
 front the inquirer on this subject. The tenderness of 
 inditference of the court; the curiosity, rudeness or 
 inconsiderateness of the physician; and the sensitive- 
 ness, ignorance or indecency of the injured person, bear 
 upon and enter into the consideration of the right and 
 authority of the court to compel an injured person to 
 submit to an examination, especially when such person 
 refuses or objects thereto. 
 
 There are some authorities which hold that the court 
 has no power or authority to compel the injured person 
 to submit to a physical examination. The reason assigned 
 for this refusal is that it is an invasion upon the private 
 and personal rights of the person, or that the statute 
 
 30 
 
? 272 EVIDKNCB. 466 
 
 fails to bestow upon the court any such power, and it can- 
 not assume to act, in the matter ,of this character, with- 
 out express authority.^ 
 
 In Union Pacific Ry. Co. v. Botsford, 141 U. S. 250, the 
 defendant, Clara L. Botsford, was riding in a sleeping car 
 of the railway company and by reason of the negligent 
 construction and care of the upper berth, it fell upon her 
 head, bruising and wounding her, rupturing the mem- 
 branes of the brain and spinal cord, causing a concussion 
 of the same and resulting in great suffering and pain to 
 her in body and in mind and in permanent injuries. 
 
 Three days before the trial the railroad company moved 
 the court for an order against the plaintiff requiring her 
 to submit to a surgical examination, in the presence of 
 her own physician and attorney if she desired their pres- 
 ence, the defendant informing the court that such exami- 
 nation was necessary to enable a correct diagnosis of the 
 case, and that without such examination the defendant 
 would be without any Witnesses as to her condition. The 
 court refused to make the order upon the sole ground that 
 the court had no legal right or power to make and enforce 
 such order. The Supreme Court held that the courts of 
 the United States have no power to order the plaintiff, in 
 an action for an injury to his person, to submit to a sur- 
 gical examination in advance of the trial. 
 
 The court, by Gray, J., said: "No right is held more 
 sacred, or is more carefully guarded by the common law 
 than the right of every individual to the possession and 
 control of his own person free from all restraint and inter- 
 ference of others, unless by clear and unquestionable 
 authority of law, as well said by Judge Cooley: 'The 
 right to one's person may be said to be a right of com- 
 plete immunity: to be let alone.' 
 
 "The inviolability of a person is "as much invaded by a 
 compulsory stripping and exposure as by a blow. To 
 
 TT'?°o'Jn^7''-«^'^-?°U''-^°'^''°''^'^*l "^ye'"' 129 Ind. 401 ; Terre Haute, 
 
 U S. 250, 47 Am & Bug. R. C. 414; etc., R. R. Co. v. Bruuker, 128 Ind! 
 
 McQuiganv Railway Co., 129 N. Y. 542; Hess v. I^owery, 122 Ind. 225, 
 
 n' l^o'w "v'ool?' i^."" ^- K-^ilway 17 Am. St. Rep. 355; Kern v. Brid- 
 
 ?i°fi'iT A?. ??: ^'^^"^-Wooley, well, 119 Ind. 226, 12 Am. St. Rep. 
 
 r« ^7 f^ Ir <^l^^olV Z- ^^"-^"^^y *^^' J°l'^t St. Ry. Co. V. Call, 143 
 
 Co 27 N . Y. S. R. 363 ; Neuman v. 111. 177-1 82 ; Parker v, Enslow, 102 111. 
 
 Railway Co. 50 N. Y.; Sup. Ct. 272; Sioux City, etc., Ry. Co. v. Fin- 
 
 41 J, l-ean., etc. Rd. Co. v. Neu- leyson, 16 Neb. 578, 49 Am. Rep. 724. 
 
467 EVIDENCE. § 272 
 
 compel any one and especially a woman to lay bare the 
 body, or to submit it to the touch of a stranger, without 
 lawful authority is an indignity, an assault and a trespass 
 and no order or process, commanding such exposure or 
 submission was ever known to the common law in the 
 administration of justice between individuals, except in 
 a small number of cases based upon special reasons, and 
 upon ancient practice, coming down from the ruder ages, 
 now mostly obsolete in England, and never so far as we 
 are aware introduced into this country. 
 
 "The authority of courts of divorce in determining a 
 question of impotence as affecting the validity of a mar- 
 riage, to order an inspection of the person of either 
 part}", rests upon the interest which the public, as well as 
 the parties, have in the question of upholding or dissolv- 
 ing the marriage state, and upon the necessity of such 
 evidence to enable the court to exercise its jurisdiction, 
 and is derived from the civil and common law, as admin- 
 istered in spiritual and ecclesiastical courts, not proceed- 
 ing in any respect according to the course of the common 
 law. Briggs v. Morgan, 2 Hagg. Con. 324, S. C. Phille- 
 more, 325; LeBarron v. LeBarron, 35 Vermont 363; 
 Devaubagh v. Devaubagh, 5 Paige 554. 
 
 "So far as the books within our reach show no order 
 to inspect the body of a party in a personal action ap- 
 pears to have been made or ever moved for in anj^ of the 
 English courts of the common law at any period of their 
 history * * * Jn the case at bar, it v/as argued that 
 the plaintiff in an action for personal injury may be per- 
 mitted by the court, as, Mulhado v. Railway Co., 30 N. 
 y. 370, to exhibit his wounds to the jury in order to show 
 their nature and extent; and to enable a surgeon to tes- 
 tify on that subject; and therefore may be required by 
 the court to do the same thing for the same purpose upon 
 the motion of the defendant. But the answer to this is, 
 that any one may expose his body, if he chooses, with due 
 regard to decency, and with the permission of the court, 
 but he cannot be compelled to do it in a civil action, with- 
 out his consent. If he unreasonably decline to show his 
 injuries, when asked to do so, that fact may be considered 
 by the jury, as bearing 'on his good faith, as in any other 
 case of a party declining to produce the best evidence m 
 his power. Clifton v. U. S., 4 How. 242; Bryant v. Stil- 
 
§ 272 EVIDENCE. 468 
 
 well, 24 Pa. St. 314; Turquad v. Strand. Union, 8 Bowl- 
 ing 201, S. C. 4 Jurist. 74. 
 
 "In this country, the earliest instance of an order for 
 the inspection of the body of the plaintiff in an action for 
 a personal injury appears to have been in 1868, by a 
 judge of the superior court of the city of New York in 
 Walsh V. Sayre, 52 How. Pr. 334. Since overruled by 
 decisions in general term in the same state, Roberts v. 
 Railway Co., 29 N. H. 154; Neuman v. Railway Co., 18 
 Jones & Spencer 412; McSweyn v. Railway Co., 27 N. Y. 
 St. Rep. 363. And the power to make such an order per- 
 emptorily denied in 1873 by the Supreme Court of Illi- 
 nois. Lloyd V. Railway Co., 53 Mo. 509; Parker v. Ens- 
 low, 102 111. 272. 
 
 "Within the last fifteen years, indeed as appears by 
 the cases cited in brief of the plaintiff in error (47 Iowa 
 375, 37 Ohio St. 104, 29 Kansas 466, 61 Wis. 536, 33 Minn. 
 130, 17 Neb. 211, 46 Ark. 275, 72 Tex. 95, 82 Ga. 719, 90 
 Ala. 71), a practice to grant such orders has prevailed in 
 the courts of several of the western and southern states, 
 following the lead of the Supreme Court of Iowa in a case 
 decided in 1877. The consideration due to the decisions 
 of those courts has induced us fully to examine as we 
 have done above, the precedents and analogies on which 
 they rely. Upon mature ad'visement we retain our origi- 
 nal opinion that such an order has no warrant in law." 
 
 The court after referring to constitution and laws of 
 the statutes of the United States, relative to the proced- 
 ure and trial of jury case, cites and adopts the language 
 of this court in the case of Ex parte Fiske, 113 U. S. 713, 
 717, which says: " It is not according to common usage 
 to call a party in advance of the trial and subject him to 
 all the skill of opposing counsel, to extract something 
 which he may use or not as it suits his purpose. Every 
 action at law in the court of the United States must be 
 governed by the rule or by the exception which the stat- 
 ute provides. There is no place for exceptions made by 
 state statutes. The court is not at liberty to adopt them 
 or to require a party to conform to them. It has no 
 power to subject a party to such an examination as this." 
 
 It has been held by some courts that if the injury is 
 permanent it is discretionary with the court to make an 
 
469 ' EVIDENCE. ? 272 
 
 order requiring the plaintiff to submit to a physical exam- 
 ination.^ 
 
 In the state of Illinois the court seems to be unset- 
 tled upon this question. The following cases hold that 
 it is discretionary with the court whether it will make 
 the order." But in the following cases the doctrine is 
 laid down that the coUrt has no power to make any such 
 order.' 
 
 In Sidekum v. Railway Co., 93 Mo. 400, 3 Am. St. Rep. 
 549, it was held that the defendant has no absolute right 
 to have a personal physical examination of the plaintiff 
 made, in an action for personal injuries. The granting 
 or refusal of an order for such an examination rests in 
 the discretion of the trial court, which discretion will not 
 be interfered with unless manifestly abused. 
 
 Where tbe court merely denies the motion for physical 
 examination of the plaintiff for the time being at the 
 same time remarking that if, during the progress of the 
 trial it appeared necessary to ascertain the plaintiff's 
 real condition, and the nature and extent of her injuries, 
 he would then direct such an examination and the defend- 
 ant does not at any subsequent stage of the proceeding 
 renew the application for such order, the court may well 
 assume that the defendant abandoned his application for 
 tbe order. 
 
 In Hess v. Lowry, 122 Ind. 225, 17 Am. St. Rep. 355, 
 the court said : "It is undoubtedly true that the court 
 may, in its discretion, in a proper case, if application is 
 seasonably made, require the plaintiff to submit his per- 
 son to a reasonable examination by competent physicians 
 and surgeons, when necessary to ascertain the nature, 
 extent and permanency of injuries; but where the applica- 
 tion is not made until after the close of the plaintiff's 
 evidence, and no reason is shown for the delay in making 
 the application, it will not be error to refuse the order, 
 especially where the plaintiff offers to submit to a private 
 
 'Atchison, etc., Rd. Co. V. Thul, 29 R. 254 ; Miami, etc., R. R. Co. v. 
 
 Kan. 466; Graves v. City of Battle Bailey, 37 Ohio St. 104 
 
 Creek 95 Mich ,266;«Sidekum v. Rail- ''city of Galesburg v. Benedict, 22 
 
 road Co , 93 Mo. 400, 3 Am. St. R. 111. App. Ill ; St. Louis Bridge Co. v. 
 
 549; Owens v. Railway Co., 95 Mo. Miller 185 111. 465 
 
 169 6 Am. St R. 39; Schroeder v. ^parker v. Enslow, 102 111.2 72, 
 
 Railroad Co., 47 Iowa, 375 : White v. Joliet St Ry. Co. v. Call, 143 IV. 177. 
 Railroad Co.. 61 Wis. 536, 50 Am. 
 
§ 272 EVIDENCE. 470 
 
 examination as soon as the attendance of medical' experts 
 on his behalf can be secured : White v. Milwaukee City 
 Ry. Co., 61 Wis. 536 ; 50 Am. Rep. 154; Miami, etc.. Turn- 
 pike Co. V. Bailey, 37 Ohio St. 104 ; Schroeder v. Railroad 
 Co. , 47 Iowa, 375 ; Shaw v. Van Rensselaer, 60 How. Pr . 143 ; 
 Shepherd v. Railway Co., 85 Mo. 629 ; 55 Am. Rep. 390; 
 Atchison, etc., R. H. Co. v. Thul, 29 Kan. 466; 44 Am, 
 Rep. 659 ; 10 Am. & Eng. R. R. Cas. 783 ; Thompson on 
 Trials, Sec. 859." 
 In Owens v. Railroad Co., 95 Mo. 169, the court said: 
 1. "The suit was commenced in the Platte circuit court, 
 and transferred to the Lafayette circuit court by change 
 of venue. There defendant at the March term, 1884, 
 flled a motion asking the court to require plaintiff to sub- 
 mit her person to an examination by a commission of 
 medical experts, to be appointed by the court, in order 
 to determine the character of the injuries, and to what 
 extent they were due to the accident. This motion was 
 not determined until the term at which the cause was 
 tried, April, 1885, when it was overruled, and the defend- 
 ant excepted. It was in substance held in Shepard v. 
 Railroad, 85 Mo. 629, that the defendant has no absolute 
 right to have a persona] examination; that it is a matter 
 in which the court has a discretion, the exercise of which 
 will not be interfered with, unless manifestly abused. 
 Of course, the court is not bound to refuse or to grant 
 the motion, to the full extent of the prayer. Its order 
 may be molded to suit the circumstances of the case. In 
 that case the plaintiff, a lady, had once submitted to an 
 examination by one physician, and offered to submit to an 
 examination by another eminent and reputable surgeon ; 
 but with this the defendant was not satisfied. Under 
 these circumstances, we held in that case that there was 
 no error in refusing the motion. In the later case of 
 Sidekum v. Railroad Co., 93 Mo. 400, it was held there was 
 no error in refusing such a motion. In that case, the 
 trial court was of the opinion that an examination was 
 not necessary in order to ascertain the real condition of 
 the plaintiff and the nature and extent of her injuries. 
 This court, upon an examination of the evidence, reached 
 the same conclusion. The ruling is certainly based in 
 part upon that ground. The power of the court to make 
 and enforce an order for the personal examination of the 
 
♦71 EVIDKNCE. § 272 
 
 injured party must be taken as established in this state, 
 as it is in many others : Schroeder v. Railroad, 47 Iowa, 
 375 ; White v. Railroad, 61 Wis. 536; Hatfield v. Railroad, 
 33 Minn. 130; Railroad v. Thul, 29 Kan. 466." 
 
 In Terre Haute & I. R. Co. v. Brunker, 128 Ind. 542, 
 it appears that the application was made upon the second 
 trial of the cause after the plaintiff had rested his case 
 for order requiring him to submit to a physical examina- 
 tion by a medical expert. The application was not sup- 
 ported by any affidavit showing the necessity for it or 
 any belief as to what such examination would develop. 
 The court said: " It was a mere request of counsel dur- 
 ing the trial of the cause, after appellee had rested with- 
 out showing even that it was believed any benefit would 
 be derived from such examination. Were it an open 
 question, we would feel constrained to hold that there was 
 no such error committed as authorized a reversal of the 
 judgment, but the case of Hess v. Lowery, 122 Ind. 225, is 
 decisive of the question as here presented. We have 
 cited in support of the counsel for the appellant upon this 
 question of Railroad Co. v. Hill, 90 Ala. 71, 24 Am. St. R. 
 764, where it was held to be error to refuse to order such 
 examination ; but in that case prior to entering on the 
 trial a motion was made to require such examination, and 
 again during the trial it was renewed and supported by 
 alfidavit showing a necessity for and a probable benefit 
 from such examination, but here no such showing is 
 made. ' ' 
 
 In Miami, etc., R. R. Co. v. Bailey, 37 Ohio St. 104, the 
 ^court said: 
 
 ■'1. In an action to recover for personal injuries 
 caused by the negligence of the defendant, the court has 
 power to require the plaintiff to submit his person to an 
 examination by -physicians and surgeons, when necessary 
 to ascertain the nature and extent of the injury. 
 
 "2. On the refusal of the plaintiff to comply with such 
 order, when propei'ly made, the court may dismiss the 
 action, or refuse to allow the plaintiff to give evidence to 
 establish the injury. 
 
 " The dismissal was authorized by Sec. 5314, Rev. Stat. 
 The authority to exclude the evidence arises out of the 
 
§ 272 EVIDENCE. 472 
 
 inherent power of the court over the subject under inves- 
 tigation. Schroeder v. C, R. I. & P. R, Co., 47 Iowa, 
 375. 
 
 "3. The refusal of the court to order such an exami- 
 nation of the plaintiff will not be presumed to have been 
 based on the ground of a want of power in the court to 
 make the order, but, in the absence of any showing to the 
 contrary, on the ground that, under the circumstances, 
 the order ought not to have been granted. 
 
 "4. The application of such order ought to be so made 
 as not unnecessarily to prolong the trial, or to prejudice 
 the plaintiff in proving his ca.se. Hence, where the appli- 
 cation is not made until after the close of the plaintiff's 
 evidence, and no reason is shown for the delay in mak- 
 ing the application, it may be refused on that ground." 
 
 In Ohio it is held that if the defendant does not apply 
 seasonably it is in the discretion of the court whether it 
 will make the order and a refusal is not error. But if it 
 is made before trial, the court not only has power to make 
 to the order but may dismiss the action if the plaintiff 
 refuses to comply therewith.^ 
 
 In White v. Railroad Co., 61 Wis. 536, 50 Am. Rep. 154, 
 it was held that the court in his discretion has authority 
 to make an order requiring the plaintiff to submit to a 
 surgical examination. 
 
 In Atchison, etc., R. R. Co. v. Thul, 29 Kan. 466, 44 
 Am. Rep. 659, it was held that "in an action of damages 
 for personal injury to the eyes, the plaintiff having testi- 
 fied, and no medical expert having testified, the court 
 may order the plaintiff to submit to an examination by a 
 competent expert." 
 
 In Alabama it is held that the court has absolute power 
 to require the plaintiff to submit to such examination.^ 
 
 In Alabama, etc., R. R. Co. v. Hill, 90 Ala. 71, it is held: 
 "It is within the discretion of the trial court to order 
 the surgical examination by experts of the person of the 
 plaintiff seeking to recover for personal injury, although 
 the defendant has no absolute right to have such order 
 made and executed. The exercise of such discretion will 
 
 1 Miami etc. R. R Co. v. Bailey, 37 2 Alabama, etc., R. R. Co. v. Hill, 
 
 Ohio St. 104; see Hess v. h. S. & M. 90 Ala. 71, 24 Am. St R 764 
 S. Ry. Co , 7 Pa. Co. Ct. R. (1890) 565. 
 
473 EVIDENCE. 'i 272 
 
 be reviewed on appeal, and corrected if abused, but the 
 examination should be ordered and had under the direc- 
 tion and control of the court, whenever it fairly appears 
 that justice requires the disclosure or more certain ascer- 
 tainment of facts which can only be produced or fully elu- 
 cidated by such examination, and that it may be made 
 without danger to life or health, or the infliction of serious 
 pain ; and the refusal of the motion, where the circum- 
 stances present a reasonably clear case for the examina- 
 tion under the rule stated, is such an abuse of discretion 
 as will operate to i-e verse a judgment in favor of the 
 plaintiff." 
 
 Personal Examination of Party Inj ured. In an ac- 
 tion to recover for personal injury, where it appears that 
 plaintiff, a j'oung unmarried woman, has submitted to 
 several personal examinations by her physician, who 
 states the nature, extent and probable effects of her in- 
 juries, but whose statement is questioned by other phy- 
 sicians, the defendant is entitled to an order that plaintiff 
 submit to a personal examination by a disinterested sur- 
 geon, and the refusal to grant such order is reversible 
 error, when the examination will not endanger life or 
 health. 
 
 In Paige v. Paige, 51 Mich., 91, the court, by Cooley, 
 J., said : " There was also a most extraordinary compul- 
 sory examination of defendant by physicians, who strip- 
 ped him and subjected him to oral inquisition, to compel 
 him to give evidence which they could repeat before the 
 commissioner for use against him. What means they 
 could be supposed to have for compelling him to answer 
 their questions in case he declined as he ought to have 
 done, we do not know ; but we are certain they could not 
 be means known to the law. We strike from the record 
 all the evidence obtained by this inquisition also. It 
 ■ should be understood that there are some rights which 
 belong to man as man and to woman as woman, which in 
 civilized communities they can never forfeit by becoming 
 parties to divorce or any other suits, and that there are 
 limits to the -dignities to which parties to legal proceed- 
 ings may be lawfully subjected." 
 
 In Kern v. Bridwell, 119 Ind. 226, 12 Am. St. Rep. 409, 
 an action was brought by an unmarried female for slander 
 where it is alleged that the defendant had spoken of the 
 
^ 273 EVIDENCE. 474 
 
 plaintiff that she was a whore, had become pregnant and 
 had suffered an abortion to be produced upon her. The 
 court held that the defendant is not entitled to an order 
 requiring the plaintiff to submit to a physical examina- 
 tion of her person by medical experts. 
 
 The court said : "One should not publish and circu- 
 late slanderous charges against a young unmarried 
 female, as proven in this case, unless he is able to sub- 
 stantiate them, when called upon to do* so, witkout calling 
 upon the court to aid in the search for evid^ce in his 
 behalf by ordering and subjecting her to arf" indelicate 
 examination of her person with the hope of obtaining 
 some information advantageous to the defense and calling 
 to his aid the court as a means of humiliating her still 
 more." 
 
 § 273. Physical Examination During Trial. The 
 
 question has often arisen whether the court has the power 
 to make an order requiring the plaintiff to submit to an 
 examination during the time of the trial of the case. If 
 such physical examination is desired, the application for 
 it must be made before the trial ;^ especially where no 
 reason is shown or explanation is given for the delay .^ 
 
 It will be denied, if it appears to the court that it is 
 unnecessary." 
 
 The order will not be denied when the party is willing 
 to be examined by a competent and disinterested surgeon, 
 without such order.* 
 
 In Minnesota it was held that the court had power to 
 require the plaintiff to perform physical acts in the pres- 
 ence of the jury, in order to show the nature and extent 
 of the injury, but the propriety of requiring the plaintiff 
 to perform such physical acts rests largely in the dis- 
 cretion of the court.** 
 
 1 Stuart V. Havens, 17 Neb. 211; ' St. Louis Bridge Co. v. Miller, 138 
 
 ^^°'^^^l}\^\%:^-'^- ^°- "• ^^°'^y- ^'l-^SS, 472; Sioux City, etc. R. R. 
 son J 6 Neb 578. Co. v. Finlayson, 16 Neb. 578; Joliet 
 
 r,^ c.",';,f ^ ^- ^^°- ''• ^^''^y- ^^ St- ^y- Co. v. Call, 143 111. 177, 182. 
 Ohio St. 104; Terre Haute, etc. Rd. Co. ^ Gulf, etc. Ry. Co v Norfleet 78 
 
 SnnrJ'.'d' '.f J"*"; '''i,^^."7 "■ ^^^- ^-'^ ■' InterLfional efc Ry Co 
 Sprmgfie.d, 35 Mo App. 97 ; Sidekum v. Underwood, 64 Tex. 463- Mo. & 
 
 Otherwise it should ■ - • - 
 it would not be an er 
 make such an order. 
 
 Otherwise it should be denied and « Hatfield v. Railroad Co., 33 Minn. 
 
 It would not be an error to refuse to 130. 
 
475 EVIDENCE. §J 274-275 
 
 A refusal of the plaintiff to afford an opportunity for 
 physical examination may be shown,'. not however where 
 the court refused to make the order on the ground that 
 the application was not made at an earlier date.^ 
 
 Such refusal is competent evidence against the plaintiff 
 as bearing- on his faith, and may be commented upon be- 
 fore the jury,* but not until after the court had made the 
 order and the plaintiff had refused.* 
 
 § 274. EflFect on Mind and Health. There may not 
 only be a physical effect arising from the injury, or there 
 may not be any physical injui-y whatever ; but there may 
 result from the wrong done, by the fright caused, a gen- 
 eral injury to the health, sometimes permanent, some- 
 times serious — producing nervous prostration, or mental 
 weakness. The effect of an injury cannot be defined, 
 because the human organization is different in each indi- 
 vidual. So may conditions exist either to agg-ravate and 
 develop results that even a knowledge of the conditions 
 will not diagnose and foretell the result. The mental 
 temperament plays an important factor in the field of 
 cause and effect. 
 
 But whatever the effect of an injury may be upon the 
 health and upon the mind — depreciating his ability, or 
 causing suffering present and in the future — may be 
 shown by proper evidence of such facts to the jury.'* 
 
 § 275. Limitation of Damages to one Action. 
 Exception. It may be generally accepted as a settled 
 principle that only one judgment can be recovered for an 
 injury in cases of tort. Whatever sums may be awarded 
 concludes the plaintiff from bringing and maintaining 
 another action. Now and then may arise an exception 
 to this rule. The exception would be where a peculiar 
 development or unnatural result of the injury manifested 
 itself after the trial, 55 L. R. A. It must be clearly estab- 
 lished that this element of damage was not embraced nor 
 considered by the jury in the former action. The right of 
 
 1 City of Freeport V. Isbell, 93 111. ■'Kinney v. Springfield, 35 Mo. 
 qoi App. 97. 
 
 2 kinney v Springfield, 35 Mo. 97 ; ' Toledo, Wabash & W R. Co v. 
 Penn R Co. v'^ Neume>;er, 129 Ind. Boddily, 59 111. 19. & /rn. R 71; 
 renn. i^. v, . Wright v. City of Fort Howard, 60 
 
 'Union Pac. Ry. Co. v. Botsford, Wis. 119, 50 Am. Rep. 350. 
 141 U. S. 2.50. 
 
?§ 276-277 EVIDENCK. 476 
 
 the injured party to recover would be, in most cases, a 
 pure question of law. It would be the province of the 
 court to say whether this new feature of damages was 
 previously litigated and to confine the evidence and re- 
 strict the consideration of the jury to this new element. 
 
 § 276. Amendment of Ad Damnum. Whenever an 
 action has been brought, the plaintiff has a right to ask 
 for an order before trial, and may amend his declaration 
 so as to increase the amount of damages.^ 
 
 § 277. General Reputation of Employes. Evidence 
 of the general reputation of an employe is admissible to 
 prove his unfitness. It is negligence on the part of the 
 master not to know such general reputation, where upon 
 proper inquiry and by the exercise of ordinary care he 
 would have obtained such information and where it is the 
 duty of such master to make such inquiry.^ 
 
 In Frazier v. Railroad Co., 38 Pa. St. 104, the court 
 refused to receive in evidence specific acts of negligence 
 of an employe alleged to be incompetent where it is so 
 sought to charge the employer with a knowledge of the 
 incompetency of the employe. But the contra rule was 
 laid down in Pittsburgh, F. W. & C. R. Co. v. Ruby, 38 
 Ind. 294. It may be admissible to prove the incompe- 
 tency of an employe by evidence of single acts, yet such 
 evidence is not necessarily conclusive.' 
 
 In an elaborate opinion in the case of Baulec v. Rail- 
 road Co., 59 N. Y. 356, the rule is believed to be correctly 
 stated in the following language : " When , as here, the 
 general fitness and capacity of a servant is involved, the 
 prior acts and conduct of such servant on specific occa- 
 sions may be given in evidence, with proof that the 
 principal had knowledge of such acts. The eases in 
 which evidence of other acts of misconduct or neglect of 
 servants or employes whose acts and omissions of duty 
 are the subject of investigation have been held incompe- 
 tent, have been those in which it has been sought to 
 
 >^^1%'J''L«- R^jl^Yi,^";-^**^-^- ^'''^- 105: 'Hatt V. Nay, 144 Mass. 
 541, 5 Atl. 34fa, and authorities cited. 186 
 
 McDonald v. Railroad Co, 26 Iowa ^Cooper v. Railroad Co., 23 Wis. 
 
 2 0-1 T. ■, J ^ ,„ ''^^' L^« ^- Detroit Bridge & Iron 
 
 (^r,«T'i'.°c,^n^^f'''°^^ ?°- 13 Allen Co., 62 Mo. 565; Couch v. Watson 
 
 (Mass. ) 433 ; Davis v. Railway Co, 20 Coal Co., 46 Iowa 17. 
 
477 
 
 EVIDENCE. J 277 
 
 prove a culpable neglect of duty on a particular occasion, 
 by showing similar acts of negligence on other occasions. 
 This class of cases does not bear on the case in hand, and 
 may be laid out of the view. Proof of specific acts of 
 negligence of a servant or agent on one or more occa- 
 sions does not tend to prove negligence on the particular 
 occasion which is the subject of inquiry. Where charac- 
 ter, as distinguished from reputation, is the subject of 
 investigation, specific acts tend to exhibit and bring to 
 light the peculiar qualities of the man, and indicate his 
 adaptation, or want of adaptation, to any position, or fit- 
 ness or unfitness' for a particular duty or trust. It is by 
 many or by a series of acts that individuals acquire a 
 general reputation, and by which theii' ch}iracters are 
 known and described ; and the actual qualities, and 
 true characteristics of individuals, those qualities and 
 characteristics which would or should influence and 
 and control in the selection of agents for positions 
 of trust and responsibility, are learned and known. 
 A principal would be without excuse should he employ 
 for a responsible position, on the pi-oper performance 
 of the duties of which the lives of others might 
 depend, one known to him as having the reputation of 
 being an intemperate, imprudent, indolent, or care- 
 less man. He would be held liable to the fellow 
 servants of the employe for any injury resulting 
 from the deficiencies and defects imputed to the indi- 
 vidual by public opinion and general report. Still 
 moi-e would he be chargeable if he had knowledge of spe- 
 cific acts showing that he possessed characteristics incom- 
 patible with the duties assigned him, and which might ex- 
 pose his fellow-servants and others to peril and harm. * 
 * * An individual who by years of faithful service has 
 shown himself trustworthy, vigilant, and competent is not 
 disqualified for further employment, and proved either 
 incompetent, or careless and not trustworthy, by a single 
 mistake or act of forgetfulness, and omission to exercise 
 the highest degree of caution and presence of mind. The 
 fact would only show, what must be true of every human 
 being, that the individual was capable of an act of negli- 
 gence, forgetfulness, or error of judgment. This must 
 be the ease, as to all employes of corporations, until a 
 race of servants can be found free from the defects and 
 
§ 277 EVIDENCE. 478 
 
 infirmities of humanity. A single act may, under some 
 circumstances, show an individual to be an improper and 
 unfit person for a position of trust or any particular serv- 
 ice, as when such act is intentional, and done wantonly 
 regardless of consequences or maliciously. So the man- 
 ner in wJiich a specific act is performed may conclusively 
 show the utter incompetency of the actor, and his inabil- 
 ity to perform a particular service. But a single act of 
 casual neglect does not, per se, tend to prove the party to 
 be careless and imprudent, and unfitted for a position 
 requiring care and prudence. Character is formed and 
 qualities exhibited by a series of acts, and not by a sin- 
 gle act. An engineer might from inattention omit to 
 sound the whistle or ring the bell at a road-crossing, but 
 such fact would not tend to prove him a careless and neg- 
 ligent servant of the company. The company is only 
 charged with the duty of employing those who have 
 acquired a good character in respect to the qualifications 
 called for by the particular service, and no one would say 
 that a good character acquired by long service was 
 destroyed or seriously impaired by a single involuntary 
 and unintentional fault. Murphy v. Pollock. 15 Irish C. 
 L. 224. But this appeal does not necessarily depend 
 upon the correctness of this view of the e£fect to be given 
 to a single instance of neglect. All that the corporation 
 defendant was bound to do, after the occurrence was to 
 inquire into and ascertain the facts, and act in the dis- 
 charge or retention of the switchman, with reference to 
 the facts as ascertained as reasonable prudence and care 
 would dictate; and if such care and caution were exer- 
 cised, the company is not liable, although its general 
 agent erred in judgment. Ordinary care is all that is 
 necessary to absolve the corporation from the charge of 
 neglect of duty in such a case." 
 
 In Penn. Rd. Co. v. Books, 57 Pa. St. 3.39, the court 
 said: "If by direct evidence it appeared that the con- 
 ductor was a man of intemperate habits it would cast 
 upon the defendant the burden of proving that he was 
 not intoxicated at the time and had used proper care. It 
 IS certainly incumbent upon the railroad companies to 
 employ none but sober men on their roads. When the 
 habit of intoxication in a conductor is shown, it raises, in 
 the case of an accident, a presumption of negligence, 
 which stands until it is rebutted " 
 
479 EVIDENCE. 8 278 
 
 § 278. Photographs and Diagrams as Evidence. Pho- 
 tographs, diagrams and maps are admissible in evidence 
 on the trial of a personal injury case, if they are a fair 
 and accurate representation of the locus in, quo of the 
 accident. They serve to aid the court and jury in the 
 investigation of the facts and to explain, illustrate and 
 apply the testimonj^, and to assist in understanding the " 
 situation and location.^ 
 
 Photographs of the scene of the personal injury are 
 admissible, when they bear evidence on their face of the 
 correctness of the representation of the locus in quo, 
 clearness of delineation, sharpness of outline, accurate 
 perspective, and just proportions between the various 
 objects.^ 
 
 A photograph of a broken bridge or demolished ear is 
 competent.' 
 
 To entitle the plaintiff to introduce photographs and 
 maps, they must be verified by evidence that they are 
 correct and true representations of the locus in quo, or 
 of the wrecked cars, broken bridge or washout — if the 
 accident occurred through any such means.* 
 
 In Archer v. Railroad Co., supra, the court said: 
 '•Such drawings are uniformly received and are useful, 
 if not indispensable, to enable courts and juries to com- 
 prehend readily the question in dispute as affected by 
 evidence. 
 
 In People v. Buddensieck, supra, the court used this 
 this language : "Its accuracy as a faithful representa- 
 tion of the actual scene was proven, and in such a case it 
 must be deemed established that photographic scenes 
 are admissible in evidence as appropriate aids to a jury 
 in applying the evidence, whether it relates to persons, 
 things or places." . 
 
 But photographs showing an injured foot in aggravated 
 aspects, well calculated to arouse the sympathy of the 
 
 iCunninghani v. Railroad Co., 'P^°Pi!'^,?^^|?"g^'' ^^^^ ^°- 7; 
 
 (Conn.) 43 Atl. 1047; Beardslee v. Green, 56 Md 84; Locke v. Sioux 
 
 Columbia Township, 188 Pa. St. 496 ;• City R. Co., 46 Iowa 109^ 
 
 Archer V. Railroad Co., 106 N.Y. 589; 4 Cunningham ,v Railway Co., 
 
 Peopn V Buddensieck 103 N. Y. 487, (Conn.) 43 Atl. l"^^; Beards ee v. 
 
 9N E Rep 44- Denver & R. G. R. Columbia Township, 188 Pa. St. 49b, 
 
 Co V Roller 100 Fed. 738. 49 L. R. A. Denver & R. G. R. R. Co. v. Roller, 
 
 77 ■ Cowley v. People, 83 N. Y. 464. 100 Fed. 738. 
 
 'Blair v. Pelham, 118 Mass. 420; 
 Church v. Milwaukee, 31 Wis. 512; 
 Nies v. Broadhead, 75 Hun. 255. 
 
§ 278 EVIDENCE. 480 
 
 jury are inadmissible, in an action of an injured woman 
 by a Jiusband to recover damages for nursing, medical 
 attendance, and cost of services and society, where there 
 was other evidence showing the expense and the extent 
 of the impairment of her condition very fully. Photo- 
 graphs not substantially necessary or instructive to show 
 material facts or conditions, and which are of such a 
 character as to arouse sympathy or indignation, or divert 
 the minds of the jury to improper or irrelevant consider- 
 ations, should be excluded from evidence/ 
 
 In Baxter V. Railway Co. (Wis.), 80 N. W. Rep. 644, 
 the court said: "There must be a limit to the use of 
 photographs as evidence. * * * They are competent 
 for some but not for all purposes. They may be used to 
 identify persons, places, or things, to exhibit particular 
 locations and objects, where it is important that the jury 
 should have a clear idea of the same, and the photographs 
 will better show the situation than will testimony of wit- 
 nesses, and where the testimony will be better under- 
 stood by the use of photographs. * * * There must 
 be substantial, legitimate reason for the use of such rep- 
 resentations else they should not be received." To the 
 same effect.^ 
 
 1 Selleck v. JanesviUe, 100 Wis. 157, wav Co., 160 Mass. 403, 406, 36 N. E- 
 47 L. R. A. 691. Rep. 60; Dobson v. Philadelphia, 7 
 
 2 Harris v. Quincy, 171 Mass. 472, Pa. Dist. R. 321; Fore v. State, 75 
 50 N. E. Rep. 1042 ; Gilbert v. Rail- Miss 727, 23 South. Rep. 710 
 
481 
 
 EVIDENCE — FACTS INADMISSIBLE. 
 
 279 
 
 CHAPTER XXIV. 
 
 EVIDENCE — FACTS INADMISSIBLE. 
 
 Sec. 
 
 279. Classes of Questions. 
 
 280. Limitation of Issues. 
 
 281. Character. 
 
 282. Habits of Plaintiflf or of the 
 
 Deceased or defendant. 
 
 283. Prior Injuries. 
 
 284. Wealth and Poverty. 
 
 285. Wealth and Poverty. Exception. 
 
 Exemplary Damages. 
 
 286. Wealth and Poverty. Exception. 
 
 Pecuniary Loss. 
 
 287. Number of Family. 
 
 288. Intemperate Habits. 
 
 289. Debts of Decedent. 
 
 Sec. 
 
 290. Dying Declarations. 
 
 291. Cost of Board. 
 
 292. Tendency to Disease. 
 
 293. Policies of Insurance. 
 
 294. Coroner's Inquest. 
 
 295. Release or Compromise. 
 
 296. Stipulation. Waiving Liability. 
 
 297. Sex. 
 
 298. Injuries Received on Sunday. 
 
 299. Expenses of Counsel. 
 
 300. Contributions. 
 
 301. Offers of Donation. 
 
 302. Offers or Negotiations of Com- 
 
 promise. 
 
 EVIDENCE — PACTS AND CIRCUMSTANCES INADMISSIBLE. 
 
 § 279. Classes of Questions. Every cause of action 
 for damages for persona] injuries involves three general 
 classes of questions, to-wit: 
 
 First. Questions of Negligence. To establish negligence, 
 it will be necessary to determine three questions, in 
 order to hold the defendant liable for the injury and for 
 damages, viz : 
 
 (a.) Question of duty. 
 
 {h.) Its violation or non- performance by the defend- 
 ant. 
 
 (c.) Such violation by the defendant was the proxi- 
 mate cause of the injury and damages to the plaintiff. 
 
 These questions are first in order upon the trial and 
 they must be established before any evidence is germain 
 to the questions of damages. 
 
 Second. Questions of Intent. The extent of the lia- 
 bility of the defendant is fixed by the intent, which 
 enters into the negligence. It involves two questions, 
 to-wit : 
 
 31 
 
§ 280 EVIDENCE — FACTS INADMISSIBLE. 482 
 
 {a. ) Whether the negligence was the result of want of 
 due care without any premeditation or wicked purpose to 
 injure the plaintiff. This question, where there is only 
 want of due care, without malice, applies and embraces 
 all actions where compensatory damages are recoverable. 
 
 (6. ) Whether the negligence was the result of a direct 
 or evil intent and purpose to injure the plaintiff, by what- 
 ever means used ; this includes more particularly actions 
 for slander, libel, malicious prosecution, and applies 
 exclusively to actions where exemplary damages may be 
 recovered or added to compensatory damages. They are 
 both questions of fact. 
 
 Third. Questions of Damages. They are questions of 
 fact, when supported by evidence— They involve the 
 nature and extent of wrong done and all its natural con- 
 sequences. What these damages include are fully dis- 
 cussed and specifically set forth in previous chapters.^ 
 
 Upon these facts the amount of damages is assessed and 
 awarded by the jury. 
 
 § 280. Limitation of Issues. In actions for dam- 
 ages for personal injuries, the pleadings will show or 
 should define what the issues are. They should allege 
 the duty, the negligence and the injury. They should 
 indicate as far as possible the extent and nature of the 
 evidence necessary to maintain the action. The evidence 
 on the trial should be confined to such facts and circum- 
 stances as will define the duty, its non-performance, the 
 wrong done by reason thereof and its natural conse- 
 quences or injury to the plaintiff. Evidence is relevant 
 and competent which shows the facts establishing the 
 injury and its results or contributing thereto, l^acts 
 which are not germain to show those causes and results 
 are inadmissible, either to increase or mitigate the- 
 amount of damages. The issues should be certain, clear 
 and definite and should define the limitations of the proof. 
 
 It follows that many facts, such as the financial cir- 
 cumstances, the social position, the reputation and com- 
 mercial standing, prior facts and subsequent circum- 
 stances connected with the life of the injured person, 
 foreign to the issues, and sustaining no causal relation 
 thereto, are not admissible for any purpose. 
 
 1 Chapters 3, 4, 5, 6, 7, supra. 
 
483 EVIDENCE — FACTS INADMISSIBLE. §281 
 
 The reasons for such a rule are that they constitute no 
 factors in cause and effect and bear no relation to them. 
 Tested by this rule the following facts and circumstances 
 are excluded by the courts on" the trial of actions for 
 damages. 
 
 § 281. Character — Reputation. The action for 
 damages for personal injury is to obtain compensation 
 for a wrong done. If a person is riding upon a railway 
 train and sustains a serious injury ; or if he is subjected 
 to ridicule and humiliation in a car, or if he receives a 
 wound from snow or ice sliding- or a sign falling from a 
 building while walking along the public street, or if his 
 person is maimed bj" the negligent operation of a street 
 railway ear, or from the explosion of a boiler, while a 
 passenger on a boat or from like causes, the evidence 
 within the range of cause and effect is admissible. The 
 character of such injured person, prior to his injury, can 
 in no way become a factor in the cause of negligence. 
 For that reason, the character, reputation and credit, 
 whether good or bad, the social and commercial position, 
 whether high or low, or of whatever relative standing, 
 are not admissible to increase or to mitigate the dam- 
 ages.^ 
 
 The admission of such evidence would tend to preju- 
 dice or improperly influence the jury. 
 
 Where the conduct of the party at the time may have 
 been improper and indecent, such as would justify his 
 removal from a railway car, such facts, showing what 
 was said and done, would be admissible, for the reason 
 that they in some degree might be factors of provocation 
 and contributory to the injury. But so long as persons 
 are conducting themselves civilly, it is immaterial what 
 their reputation is or whether their character is good or 
 bad. 
 
 This rule includes and applies to all actions for com- 
 pensatory damages, where a physical injury was received 
 or where sickness was caused, or disease aggravated or 
 developed, or a serious or permanent impairment of 
 health produced from injury, fear, fright, etc. 
 
 iTolietSt. Ry. Co. v. Call, 42 111. Civ. App. 262; Johnson v Wells- 
 
 App 41 143 Hi. 177 ;Brown v. Rail- Fargo, 6 Nev. 224 ; Indianapolis Penn. 
 
 way Co.', 7 Fed. 51 ; International & & Chic. Co. v. Bush, 101 Ind. 582. 
 Great N. R. Co. v. Kentle, 2 Tex. 
 
g 282 EVIDENCE — FACTS INADMISSIBIyE. 484 
 
 This rule does not apply to actions for damages to 
 character, as slander, seduction or like injuries ; nor to 
 any cause where exemplary damages may be awarded. 
 
 There are some authorities which hold that if the plain- 
 tiff at the time of the injury was engaged in an unlawful 
 business, and claims damages for any permanent disa- 
 bility, which diminishes his earning capacity, it is admis- 
 sible to show his general reputation. The reason for 
 this exception evidently is that ,it would be recognizing 
 the lawfulness of an unlawful business; that such unlaw- 
 ful business shows no real earning capacity for any legiti- 
 mate occupation.^ 
 
 In Brown v. Railroad Co., 7 Fed. 51, the plaintiff 
 was a colored woman, who had paid her fare, and had 
 taken a seat in a first class car, where she was riding 
 and conducting herself in a civil and orderly manner. 
 The conductor ordered her out of the ear into an inferior 
 car, assigning as a reason that her reputation for chastity 
 was bad. The question was thoroughly discussed, on a 
 reargument before Judge Hammond. The plaintiff 
 recovered $7,000. The court said, very properly : "The 
 carrier has nothing whatever to do with private' char- 
 acter or conduct except so far as it furnishes him with 
 evidence of a probable injury, about to be inflicted on his 
 other passengers, or on his business." 
 
 In Johnson v. Wells-Fargo Co., 6 Nev. 224, the judge 
 told the jury that in "estimating damages they could take 
 into consideration the bodily suffering of the plaintiff, 
 his pain of mind, his character and his business, also all 
 expense, if any, " * * * and" whether the injuries are 
 likely to be permanent." 
 
 T*he court, held the charge erroneous for the reason 
 that the character of the party was immaterial except 
 in actions for slander, etc., when it is necessarily in- 
 volved in the action. 
 
 § 282. Habits on Former Occasions. Evidence tend- 
 ing to show that on former occasions prior to the time 
 when the plaintiff, or in cases of death the decedent re- 
 ceived the injury, he was a careful and prudent man, or 
 
 '2 Greenleaf on Evidence, Sec. 269; 
 Thompson on Passenger Carriers, p. 
 571. 
 
485 EVIDENCE— FACTS INADMISSIBLE. §283 
 
 a careless and reckless person, or was in the habit of get- 
 ting upon or ofP trains while in motion, would be incom- 
 petent and inadmissible, for the reason that those habits 
 would not absolutely or surely regulate his conduct on 
 this particular occasion.' 
 
 If anything can be shown it would be what was his 
 conduct at the time of the accident when he received his 
 injury. Any questions of a like character would be in- 
 competent, for the same reasons. Due care may be pre- 
 sumed on the part of every intelligent person of mature 
 years, ^ but it is not a guaranty against an act of negli- 
 gence. Such evidence would raise a collateral issue. To 
 what extent did or did not such habits contribute to or 
 cause the injury complained of ? How far would careful 
 and prudent habits be a bar to any contributory negli- 
 gence at the time of the accident? To what period of 
 time would you limit such injury if admissible? Such 
 evidence would open the door to proof of negligence of 
 the defendant on former occasions, which, unquestion- 
 ably, would be improper and which has been condemned 
 by the weight of authority/ 
 
 Evidence of the general reputation of an employe is ad- 
 missible to prove his unfitness. It is negligence for a 
 master to be ignorant of the general reputation of his 
 servant, when it is his duty to make inquiry and where, 
 upon inquiry, he would have learned such reputation. 
 This rule is based upon the principle that it is the duty 
 of an employer to hire competent servants.* 
 
 § 283. Prior Injuries. While a person is recovering 
 from an injury or a sickness, he has a right to go upon 
 the streets and public highways, and to travel upon rail- 
 way trains and steamboats, and if, while riding upon the 
 
 lElliott V. Railroad Co., 5 Dak. 523, ^ Lyman v. Boston & Me R. Co (N. 
 
 3 L: R. A. 365 ; Peoria & P. U. R. R. H.), U L. R. A. 364, 20 Atl. Rep. 976. 
 
 Co.' V. Clayberg, 107 111. 614 ; Chase g g^j., ^ Railway Co., 66 Mich. 349 j 
 
 V. Railroad Co., 77 Me. 62 ; Phil., W- Baltimore & Bus., etc., R. Co. v. Wood- 
 
 & B. R. R. Co. V. Stebbins, 62 Md. ^^^ ^.jj^ 506; Hubbard v. Railroad 
 
 504, 49 Am. R. 628 ; Morris v. East ^^ 39 ^^^ 5 . parker v. Portland 
 
 Haven, 41 Conn. 252 ; McDonald v. p^^ ^.^ gg jjg 173^ 31 Am. Rep. 262: 
 
 Savoy, 110 Mass. 49. The contra doc- j p„ on ivri^t, 
 
 trine s held by the following courts 'Davis v. Railroad Co. 20 Mich, 
 
 where there were no eye witnesses 105: Hatt v. Nay 144 Mass. 186; 
 
 to the accident. Chicago, etc., R. R. Baulec v. Railroad Co., 59 N. Y. 356. 
 Co. V. Clark, 108 111. 113; Cassidy v. 
 Angell, 12 R. I. 447. 
 
J 284 EVIDENCE — FACTS INADMISSIBLE. 486 
 
 train or steamboat, or other means of transportaion, he 
 receives a second injury from the negligence of the car- 
 rier, he may recover for the damages sustained by the 
 second injury. The prior or first injury does not consti- 
 tute any defense or any mitigation of the damages for the 
 consequence of the second injury.' It is the act of negli- 
 gence at the time of the second injury for which the 
 defendant is held responsible 
 
 This rule applies, although a well and strong person 
 might not have sustained any ill effects from! such acci- 
 dent. 
 
 The same rule is recognized when the injured person 
 had several years prior thereto received an injury, and 
 had recovered as far as possible from its effects.^ 
 
 In Driess v. Fredericks, swpra, the plaintiff fell through 
 a defective cellar grating in front of defendant's drug 
 store and received internal injuries and a broken leg. 
 It appeared that the same leg had been broken sixteen 
 years prior to the time of this accident. The court held 
 that the first injury formed no defense, and said: "The 
 damages which plaintiff was entitled to recover were the 
 damages resulting to himself conditioned as he was at 
 the time of the accident, and not such damages as he 
 might have been entitled to had his condition been differ- 
 ent; that the injury resulting from the negligence of de- 
 fendant may have been aggravated or more easily caused 
 by reason of the fact that the limb had received a former 
 injury, cannot affect the questions of right to or measure 
 of damages." 
 
 § 284. Wealth and Poverty. The wealth or poverty 
 of the parties cannot be shown on the trial of a personal 
 injury. In some actions for damages for personal inju- 
 ries before the rule was settled, the defendant attempted 
 to prove and did prove, that the plaintiff was a person of 
 wealth, for the purpose of mitigating the amount of dam- 
 ages, upon the ground that he could live and was not in 
 actual need of full compensation for the wrong done, and 
 that the plaintiff could live and do without the full dam- 
 ages better than the defendant could afford to pay the 
 
 1 Hudson V. Railway Co., 59 Iowa « Driess v. Fredericks, 73 Tex. 
 
 581 ; Allison v. Railway Co., 42 Iowa 460. 
 274; Coleman v. Railway Co., 106 
 Mass. 160. 
 
487 EVIDENCE — FACTS INADMISSIBLE. § 285 
 
 same. If it was admissible to show the wealth of the 
 plaintiff, where would j^ou fix the sum at which the defense 
 would be restricted to this rebate; or if it was proper, 
 why could not the plaintiff show the defendant was a 
 richer corporation than its railway or traffic necessities 
 required for the purpose of increasing the damages 
 beyond the correct measure for which the plaintiff is en- 
 titled to recover? 
 
 In other actions the poverty of the plaintiff has been 
 sought to be shown to decrease the amount of damages, 
 for the reason that such condition was an indication of 
 inability, infrugality and ineflBciency. If admissible, at 
 what sum would you fix his acquisition of property before 
 the injured party would be released from such a defense? 
 
 A person may be rich to-day and in poor financial cir- 
 cumstances to-morrow, through the unfortunate reverses 
 of business. An individual maj' be poor to-day and in a 
 wonderful short time he may count the value of his prop- 
 erty in several figures. The injury should not operate 
 to make the existence of either fact a fixed condition for 
 life. For these reasons and for the other and greater 
 reason that either condition can in no way be a factor in 
 contributing to the cause of the injury; it is universally 
 held that wealth and poverty cannot be shown in actions 
 for compensatory damages, when the injured party sur- 
 vives and brings the action in his own name' for the 
 recovery of compensatory damages. 
 
 § 285. Poverty and Wealth. Exceptions. Exem- 
 plary Damages. In actions where the plaintiff is en- 
 titled to recover exemplary damages, the wealth of the 
 
 ■Higgins V. Railway Co., 73 Ga. Staal v. Railway Co., 57 Mich. 239; 
 
 149 ; Hunn v. Railway Co., 78 Mich. Georgia, etc., R. R. v. Homer, 73 Ga. 
 
 513; Caldwell v. Murphy, 1 Duer 499 ; Hays v. Railway Co., 46 Tex. 272. 
 
 (N. V.) 233; Chicago & N. W. R. Co. Chicago B. & Q. R. R. Co. v. Bryan, 
 
 V.Bayfield, 37 Mich. 205; Morgan v. 90 III. 126; Beams v. Railway Co., 58 
 
 Durfee, 69 Mo. 469, 33 Am. Rep. 50; Iowa, 150; Kessler v Smith, 66 N. C. 
 
 Pennsylvania, etc., R. R. Co. v. But- 154 ; Central, etc., R. Co. v. Rouse, 
 
 ler 57 Pa. St. 3f5 ; Chicago, etc., R. 77 Ga. 393; Chicago, etc., Ry. Co. v. 
 
 R Co v Morando, 93 111. 302 ; Illinois Howard, 6 111. App. 569 ; Chicago, etc., 
 
 Centr.,etc.,R.Co.v. Zang.lOIll.App. Ky. Co. v. Henry, 7 111. App. 322; 
 
 694- Illinois Centr., etc., R. Co. v. Benton v. Railway Co., 55 Iowa, 4; 
 
 Baches, 55 111. 379; Pennsylvania, etc., Chicago v. McCulloch, 10 111. App. 
 
 Ry Co v Roy, 102 U. S. 451 ; Central, 459; Hare v. Marsh, 61 Wis. 435, 50 
 
 etc., R. R. Co. V. Moore, 61 Ga. 151 ; Am. Rep. 141. 
 
g 286 EVIDENCE — FACTS INADMISSIBLE. 488 
 
 plaintiff or defendant may be shown to increase or de- 
 crease the amount of damages.' 
 
 Such evidence is admitted upon the ground that a per- 
 son of wealth will sustain greater loss and injury than if 
 he were poor, and a wrong done by a person of wealth will 
 cause a greater injury than a similar wrong done by one 
 of less influence. The evidence is not admitted on the 
 basis of greater personal exemption, but because the 
 plaintiff is likely to suffer in his business, credit and 
 income more than if he had no property, or because the 
 defendant is able to respond in damages, and to pay to 
 the plaintiff any obligation which may be recdvered 
 against him; but because the defendant should not injure 
 the plaintiff from a bad motive on account of some reason 
 more imaginary than real. TJiis evidence is received 
 simply as affecting the question of exemplary damages, 
 but of its weight and the additional amount to be awarded 
 by reason thereof, the jury are the sole judges.^ 
 
 § 286. Poverty and Wealth. Exception. Pecuniary 
 
 Loss. In cases where death results from the injury, 
 evidence may be given of the pecuniary circumstances 
 of those who have a right to recover damages for the 
 "pecuniary loss," or, as it is used in some states 
 '•' pecuniary injury. " Such evidence is received to show 
 the continued expectation of help and support from the 
 deceased.' 
 
 In Annas v. Railroad Co., 67 Wis. 46, it was held that 
 the widow might show that she had no means of support 
 but what her husband had furnished her, because that 
 tended directly to show that she suffered pecuniary loss 
 , by his death. In Staal v. Railroad Co., 57 Mich. 239, 
 when the person killed was the head and support of a 
 
 1 New Orleans Jack. & Great N . Ry. s Cook v. Street Ry. Co. , 60 Cal . 601 ; 
 Co. V. Hurst, 36 Miss. 660 ; Chicago, Staal v. Railroad Co., 57 Mich. 239 ; 
 B & Q. R. Co. V. Johnson, 103 111. Internat. & Gr. N. R. Co. v. Kin- 
 512 ; Pennsylvania R. Co. v. Roy, 102 dred, 57 Tex. 491 ; Ewen v. Railroad 
 U. S. 451; Beck v. Dowell, 40 Mo. Co., 38 Wis. 613; Bailey v. Railroad 
 App. 71; Morgan v. Durfee, 69 Mo. Co., 4 Biss. 436; Annas v. Railroad 
 469, 33 Am. Rep. 50 ; Draper v. Baker, Co., 58 Am. Rep. 848, 67 Wis. 46 ; 
 61 Wis. 450, 50 Am, Rep. 143. Mulcairns v. Janesville, 67 Wis. 24 ; 
 
 2 In answer to the admission of such Johnson r. Railroad Co., 64 Wis 425 
 evidence, the defendant may show his 
 
 own poverty. 1 Sedg. on Damages, 
 p. 544, Sec. 385, note B. 
 
489 EVIDENCE — FACTS INADMISSIBLE. § 287 
 
 family, it was held that the fullest insight into the cir- 
 cumstances of the family may be shqwn to enable the 
 jury to exercise their best judgment in arriving at the 
 results. 
 
 In Beems v. Railroad Co., 58 Iowa, 150, it was held com- 
 petent to show that the benefleiary was an invalid or 
 otherwise incompetent to earn a living. In Internat. 
 etc. V. Kindred, 51 Tex. 491, it was held that the mother 
 might show her poverty and entire dependence upon her 
 son for support. This rule applies to the beneficiaries, 
 not to the decedent, or to his estate.' 
 
 This rule would include a mother or father, who were 
 poor and helpless, and who were dependent upon the aid 
 of a deceased son ; or to the wife and children of the deced- 
 ent, who are generally named as beneficiaries, or who are 
 left without property. It is received not for the purpose 
 of measuring damages, because evidence of that char- 
 acter is inadmissible under the statute, but to show a 
 " pecuniary loss." What is meant in law by " pecuniary 
 loss," is considered in another chapter. '^ 
 
 § 287. Number of Family. It ^ is incompetent to 
 show the number of the family of the injured person for 
 the purpose of increasing the amount of damages.' 
 
 The size of a family bears no relation to the cause and 
 efPect of the injury. The reason for the rule is that the 
 earning capacity of a person, does not increase ^ro rata 
 with the additions to the family. Nor is it regulated by 
 or restricted to the number thereof. This rule applies 
 to all causes where the action is brought by the injured 
 
 1 Mavhew v. Burnes, 103 Ind. 328 ; Chic. etc. N. \V. R. Co. v. Moranda, 
 
 Penn.'etc, R. Co. v. Adams, 55 Pa. 93 111. 302,34 Am. R. 168; Stockton 
 
 St. 499; North Penn. etc., v. Kirk, v. Prey, 4 Gill (Md.) 406; Drei.ss v. 
 
 90 Pa. St. 15 ; Dalton v. Railway Co., Frederick, 57 Tex. 70; Penn. etc. R. 
 
 4 Com. B (N. S.) 296; Frankm v. Rail- Co. v. Roy, 102 U. S. 451 ; Dayharsh 
 
 way Co., 3 Hurl. & N. 211. v. Railway Co., 103 Mo. 570, 23 Am. 
 
 2Chap. 'l\,post. St. Rep. 900; Hunt v. Chic, etc. R. 
 
 3 Gallon V. Lauer, 55 Ohio St. 392 
 Stephens v. Railway Co., 96 Mo. 207 
 9 Am. St. 336 ; Beems v. Railway Co. 
 85 Iowa, 150 ; Pittsburgh, etc. R. Co. v, 
 Powers, 74 111. 341 ; Pittsburgh, etc 
 R. Co. V. Books, 57 Pa. St. 339 ; Kan 
 sas, etc. R. Co. v. Pointer, 9 Kan. 620 
 Bait. etc. O. R. Co. v. Shipley, 31 Md, 
 368 ; Malone v. Hanley, 46 Cal. -iOg 
 
 Co., 26 Iowa, 363 ; Belknap v. Railway 
 Co., 49 N. H. 358; Chic. etc. R. Co. 
 V. Henry Johnson, supra ; Shaw v. 
 Boston etc. R. Corp., 8 Gray (Mass.) 
 45 ; Mo. Pac. R. Co. v. Lyde, 57 Tex. 
 505; Hunn v. Railway Co., 78 Mich. 
 573; Louisville etc. R. Co. v. Binion, 
 107 Ala. 645; Chicago v. O'Brennan, 
 65 111. 160. 
 
? 288 EVIDENCE — FACTS INADMISSIBLE. 490 
 
 person himself, but there are exceptions to this ganeral 
 rule, as follows, to- wit: 
 
 First. It is held by some courts that where death 
 results from the injury that the number of the family 
 may be shown in evidence.^ It is allowed upon the 
 gfround that the pecuniary loss is sustained by the entire 
 familj', wife and children. They are named by the statute 
 saving and creating this cause of action, as the bene- 
 ficiaries. The damages are based upon such pecuniary 
 loss and not upon the ordinary elements of damages. 
 This subject has been more fully discussed elsewhere.^ 
 
 Second.. It may be shown that the decedent was a 
 married man and for that reason his life was of greater 
 value.^ Evidence is also admissible that he was a kind 
 father and husband, where the action is brought by the 
 wife, who is an invalid and incapacitated to earn any- 
 thing, and who has a daughter to support, but these facts 
 are elements of pecuniary loss.* 
 
 Third. In Michigan it is provided by statute that the 
 number of the family may be shown. ^ 
 
 Fourth, in Missouri it is held not to be error to show 
 the number of the family, because the mother is bound 
 by law to support the children." 
 
 § 288. Intemperate Habits. The fact that the 
 injured party is in the habit of getting intoxicated or 
 that he was intoxicated at the time of the injury, does 
 not release the defendant from responsibility and lia- 
 bility for any damages sustained by such person on 
 
 iMulcairnes v. Janesville, 67 Wis. Mich. 560, 2 How. Rev. Stat., Sees. 
 
 24; Ewen v. Kailroad Co., 38 Wis. 3391, 3392. 
 
 ^i^i ^^'^^L^^- ^- ^- ^'^- "'■ Kindred, In Chic, etc., R. Co. v. Bayfield, 37 
 
 S^- f» ^l^ ; Annas v. Railway Co., 67 Mich. 214, Judge Cooley said : "What 
 
 Wis. 46; Barley v. Railway Co.. 4 Biss. the family would lose by the death 
 
 430; Staal v. Railway Co., 57 Mich. would be what it was accustomed to 
 
 239 ; Johnson v. Railway Co., 64 Wis. receive or had reasonable expectation 
 
 ^^°- of receiving in his lifetime ; and to 
 
 2 Chap. 21, sufira ^^°'^ ^^^^ ^^^ family was poor has 
 
 no tendency towards showing 
 
 ^ Beems v. Railway Co., 58 Iowa 150. whether this was or was not likely to 
 
 *Cook V. Railway Co., 60 Cal. 604 '^^^''^^ °'' ^'"^"•" 
 6 Am. & Eng. Rd. Cases, 175. ' Conroy v. Iron Works, 75 Mo. 652; 
 
 n-a 1 r ij „ ., Teeterow V. Railway Co.. 98 Mo. 74. 
 
 "Breckenfelder v. Railway Co., 79 14 Am. St. Rep. 614 
 
491 EVIDENCE — FACTS INADMISSIBI.E. § 289 
 
 account of the negligence of such defendant.' This fact 
 of intoxication itself does not constitute contributory 
 negligence, so as to defeat the right of action for dam- 
 ages.^ But if the intoxication contributed to the injury 
 which the person sustained and was the proximate cause 
 of the injury, the defendant is not liable;^ and there must 
 be proof that it actually did contribute to such injury.' 
 
 The fact that any person is in the habit of getting in- 
 toxicated will not operate to release such person from the 
 exercise of due care.'* 
 
 Evidence may be introduced to show that the plaintiff 
 was in the habit of becoming intoxicated, to bear upon the 
 amount of compensatory damages,^ but it cannot be shown 
 by the declarations of third parties; and his sobriety or 
 intoxication is a question for the jury.' 
 
 § 289. Debts of Decedent. Evidence in some cases 
 has been offered by defendants, and received, to show 
 that if the debts of the decedent were deducted from the 
 damages awarded, the estate would be small; and also to 
 show that the fact of indebtedness at such time was an 
 indication of an uncertain and doubtful capacity of the 
 decedent to acquire or save an estate; and to mitigate the 
 damages. But the weight of authority is that such evi- 
 
 i Milliman v Railway Co., 66 N. Y. Tex. 331 ; Whalen v. Railroad Co., 60 
 
 642; Maguire v. Railway Co., 115 Mo. 623 ; Marquette, Hough., etc. R. 
 
 Mass. 239; Bait. & O. R. R. Co. v. Co. v. Handford, 39 Mich. 537. 
 
 Bote.er, 38 Md. 568; Stuart v. Inhab- ^Houston, etc. R. Co. v. Reason, 61 
 
 itants, etc., 48 Me. 477; Cramer v. Tex. 613 ; Hayes v. Street Ry. Co., 97 
 
 Burlington, 42 Iowa, 315; Thorp v. N. Y. 259; Cramer v. Burlington, 42 
 
 Town of Brookfield, 36 Conn., 3a0 : Iowa, 315. 
 
 Houston, etc., R. R. Co. v. Reason, 61 60nion Pac. Ry. Co. v. Reese, 56 
 
 Tex. 613; Davis v. Railway Co., 8 p^j 288, 5 C. C. A. 510; Wheat v. 
 
 Ore. 172; Louisville, etc., R. Co. v. ^o^e 7 Ala. 311; Parker v. Enslow, 
 
 Sullivan, 8i Ky. 624, 50 Am. R. 186. jQg 111 272 40 Am. Rep. 588; Wood 
 
 2 Louisville, etc. R. Co. v. Johnson, ^ ■^oa.rA of Comrs., 128 I-nd. 289; St. 
 
 92 Ala. 204, 25 Am. St. 35 ; Kean v. /^^jg ^^^ ^ Co. v. Wilkerson, 46 
 
 Railroad Co., 61 Md. 154 ; Weeks v. Ark. 513. 
 
 Railway Co., 32 La. Ann. 615. 6 Cleveland & Pitts. R. R. Co. v. 
 
 8 Mo. Pac. Ry. Co. v. Evans 71 Tex. g "^ j^^^ 19 Ohio St. 151 ; Brock- 
 
 361 ; Strand v. Railroad ^"^'^L^^t: way v Patterson, 72 Mich. 122, 1 L. 
 
 380; Davis v. Railway Co. 8 Ore. 1,2, ^ y Doty v. Postal, 87 Mich. 
 
 Yarnell v. Railroad Co 7^ Mo^ 175 ; R- Aj^ ™ ^ ^J ^^ S^^^- ^ p^„p,, 
 
 f/''AT"Re;:^l^lf'l^L°k^%^-^;^ rie^P?sf^O^Atl"Rip.^23"3fo^^^^'' 
 Houston, etc. Rd. Co. v. Waller, 56 finger, 107 111. 199. 
 
§290 EVIDENCE— FACTS INADMISSIBLE. 492 
 
 dence is not admissible for any purpose.' The damages 
 are the pecuniary loss sustained by the beneficiaries. 
 Such pecuniary loss is not affected by any fact of indebt- 
 edness. The death may have occurred at a time of or 
 contemporaneous with some unexpected and unforeseen 
 loss, which swept away the earnings of a lifetime and left 
 decedent hopelessly in debt. It may have been the fault 
 of some other person. In either event it would not show 
 lack of earning capacity on his part; nor a permanent im- 
 pairment of his future earning ability; nor an incompar- 
 ably small pecuniary loss to his wife and children; nor 
 an unkind, thoughtless and indifferent husband and 
 father. 
 
 § 290. Dying Declarations of Decedent. Dying 
 declarations are statements made by the decedent after 
 the injury and immediately before death. In civil actions, 
 by the legal representative of the estate, these declara- 
 tions are not admissible to charge the defendant.^ As a 
 general doctrine the admission in evidence of dying 
 declarations only applies to criminal cases. 
 
 Exception. By a few authorities it is held that dying 
 declarations are admissible when made immediately after 
 the accident to show the cause of the injury.' They be- 
 came evidence, the weight and effect of which is entirely 
 with the jury. 
 
 In. Iowa (55 Iowa) such declarations, so far as they 
 are treated as admissions, as to the cause of the injury, 
 are held competent, and may be considered by the jury 
 in connection with the circumstances under which they 
 are made and given such weight as the jury may think 
 proper. See sec. 255, Ch. 23 
 
 § 291. Cost of Board. It is incompetent to show the 
 cost of the board of the injured person during the period 
 while he was suffering from such injury or incapacitated 
 to pursue his business, trade or profession.* 
 
 . iPenn., etc., R. R. Co. v. Hender- Marshall v. Railway Co., 48 111. 475. 
 
 son, 51 Pa. St 315; Huun v. Railroad speHgo y. Railroad Co., 55 Iowa 
 
 Co., 78 Mich. 513. 326; Brownell v. Railroad Co., 47 Mo. 
 
 ^Waldele V. Railway Co., 26 Hun. 240; Friedman v. Railroad Co 7 
 
 69 ; 61 How. Pr. 350 ; Chic. & N. W. Phil. Rep. 203 ; Snell v. State, 25 Am. 
 
 R. Co. V. Howard, 6 III. App. 569; St. Rep. 723. 
 
 Dailey v. Railway Co., 32 Conn. 356 ; ^ Groeber v. Derwin, 43 Cal. 495 
 
493 EVIDENCE— FACTS INADMISSIBLE. §293 
 
 ^ 292. Tendency to Disease. Some persons inherit 
 or are born with a tendency to chronic disease, which, 
 under certain conditions or circumstances, maj' be devel- 
 oped or aggravated. Such disease or tendency thereto 
 may be unknown or lie dormant in the system until de- 
 veloped by some injurj-. This is especially true of dis- 
 eases of a scrofulous, rheumatic or malarial nature. Other 
 persons inherit a highly sensitive, nervous temperament, 
 or are born with a frail or weak constitution. Any of 
 these conditions, in case of a physical injury, naturally 
 tend to produce moie serious results, and cause greater 
 bodily pain and suffering than would result to more fortu- 
 nate persons of strong and healthful constitutions. These 
 tendencies to disease or suffering, however, cannot be 
 shown to defeat or mitigate the amount of damages which 
 the injured person is entitled to recover, for the reason 
 that the}' bear no causal relation to the injury.' 
 
 The defendant may show that the plaintiff' was diseased 
 at the time of the accident and tha-t her diseased condi- 
 tion was calculated to retard a recovery from the injury.^ 
 But a previous ailment, if not permanent at the time of 
 the accident, cannot be shown, although the plaintiff's 
 arm and shoulder were weak from accident in youth, 
 and the accident tended to aggravate the injury.' 
 
 § 293. Policies of Insurance. It is immaterial and 
 incompetent for the defense to show or offer to show 
 that the injured person (or the decedent in case of 
 death) carried auv life or accident insurance,* to reduce 
 the damages which may be awarded.' When a person 
 
 1 Baltimore City Ry. Co. v. Kemp, Kellogg v. Railway Co., 79 N^ ¥.72; 
 
 €1 Md 74 • Stewart v Ripon, 38 Wis. Carroll v. Railroad Co., 88 Mo 2d9, 
 
 591 ; Louisville, etc , Ry. Co. v. Fal- 57 Am. R. 382 ; Pittsburg, etc. , R. R. 
 
 vey, 104 Ind. 409, 3 N. E. Rep. 389 ; Co. v. Thompson, 56 iii-/f- 
 
 Houston etc. Rd. Co. v. Leslie, 57 ^ Harding v. Townsend, 43 Vt. 536 , 
 
 Tex. 83 ; 'srown v. Railway Co. 66 Mo. 5 Am R. 304 ;-R^>lway Co^v Thomp- 
 
 = Qo ' son, 56 111; Atlhorp v. Wolfe, .i^JN. 
 
 ^PfChaTi i,ost Y. 355; Clark v. Wilson, 103 Mass. 
 
 See Chap, />wr. ^^^ ^. ^^ ^^ ^32. p^^rott v. 
 
 2 Fuller V. Jackson, 92 Mich. 197. Shearer, 17 Mich. 48, where at page 
 sCanfield v. Railway Co., 78 Mich. 56, it is stated by Judge Cooley that to 
 
 356 allow any reduction would be to com- 
 
 * Bradburn v. R^lway Co., 10 Exch. pel the plaintiff to P^y ^wice for the 
 
 1 (L R.). Sherlock v. Ailing, 44 Ind. property recovered, and ^°'^'^°^^l 
 
 184 Bal & O R R. Co. v. Nightman, but once for the wrong done . and 
 
 9fi A^ R ^84 99 Grat (Va ) 431; that he recived his insurance upon a 
 
 Norl^Pac R R Co v Kirk, 90 Pa! contract to which the defendant was 
 
 St. 15 Terry v. Jewett, 7S N. Y. 346. in no way privy. 
 
ii 294-295 EVIDENCE — FACTS INADMISSIBLE. 49+ 
 
 recovers damages for the injury done to him, the judg- 
 ment represents in law, as found by twelve fair minded 
 men, a reasonable compensation for injuries. To offset or 
 to reduce the damages by life insurance, would be to 
 require a double payment for such insurance. 
 
 § 294. Coi-oner's Inquest. The verdict of a jury on 
 a coroner's inquest is not admissible in favor of either 
 party. ^ The reason for this rule is that the proceeding 
 and result arrived at are not in the nature of judicial pro- 
 ceedings, in a strictly legal sense. It is not conducted 
 according to rules of a legal procedure.^ 
 
 § 295. Release or Compromise. Under certain cir- 
 cumstances, a release or compromise made with the 
 injured person immediately after the injury for an inade- 
 quate amount, as a settlement thereof, or to refrain from 
 commencing any action for damages, is not admissible, 
 and is not a bar against such person. The reason is that 
 such compromise was obtained under conditions amount- 
 ing to duress in law or when suffering such pain from the 
 injury that he was incompetent to make a valid and bind- 
 ing contract; or that it was made at a time when it was 
 not the voluntary act of the injured person. 
 
 In Dixon v. Railroad Co., 100 N. Y. 170, 3 N. E. Rep. 
 65, the defendant set up a release executed by plaintiff 
 soon after the injury. There was testimony showing that 
 at the time of its execution the plaintiff was in a condi- 
 tion of mind that rendered him incompetent to appreciate 
 the character of the instrument which he executed. It 
 was held that it was for the jury to determine whether it 
 was his Iree act, done with full knowledge, at the time, of 
 the facts, with a full appreciation of what he was doing. 
 
 In Stone v. Railroad Co., 66 Mich. 76, it appeared that 
 a woman in delicate health received serious personal 
 injuries through the negligence of the employes of the 
 defendant railroad company, and was persuaded by the 
 
 1 Marsh v. Walker, 18 Tex. 372; v. Womack, 84 Ala. 149 4 So Rep 
 
 Miller V. Railway Co., 20 Oregon 285, 618; State v. Cecil Co. Comrs., 54 
 
 26 Pac. Rep. /O; Guthrie v. Railway Md. 426 
 
 Co., 20 Oregon 291, 26 Pac. Rep. 76 ; Bussian v. Railway Co., 56 Wis. 325. 
 
 Cottingham v. Weeks, 54 Ga. 275 ; 10 Am. & Eng. R. Cases 716; Blair y. 
 
 ^l1 ?n'"'i^9' t M ^ D lia^''^"'^'^' Railway Co., 89 Mo. 334, 1 S W. Rep. 
 
 "'r'\''?'L''v^-^'P^'''- « 350 iSt'onev. Railway Co: 66 MicS: 
 
 1 .1 ^^„^*"^ ^^- o^°^^- ^°°''^' *" ^^- ^6- 30 A. & E. R. Casei 600. 
 151 ; Memphis & Charleston R. Co. 
 
495 EVIDENCE — FACTS INADMISSIBLE. ? 295 
 
 false statements and misrepresentations of her uncle, in 
 whom she confided, and who had been induced and 
 employed by parties on behalf of the company to use his 
 influence over her, and that he, taking advantage of her 
 conditions, poverty and the sickness of herself and chil- 
 dren, used his influence and procured from her a settle- 
 ment with the company for an insignificant sum, releasing 
 the company from all further liability for her injuries ; 
 the next day she returned the money and due bill she had 
 received and renounced the settlement. In this case it 
 was held that the court was justified in instructing the 
 jury, in an action for damages brought by her for the 
 injury sustained, to find that the settlement was not the 
 voluntary act of the plaintiff, and was not binding upon 
 her, and was no bar to the action. 
 
 When the party seeks to set aside a release of damages 
 for personal injuries on the ground of fraud, the evidence 
 in such cases must be clear, precise and indubitable; 
 otherwise the ease should be withdrawn from the jury.' 
 
 The law favors the settlement of personal injury cases, 
 but if the settlements are induced by fraudulent repre- 
 sentations, or when the injured party is not in possession 
 of his proper senses, they must be regarded as nullities.^ 
 
 If the release was executed when the injured party was 
 under the influence of opiates and drugs,'* or while 7ion 
 compos mentis,'' it may be ratified when restored to sound 
 mind. 
 
 A settlement obtained from an illiterate woman, after 
 suit was commenced, in the absence of her counsel, with- 
 out his knowledge or consent, would be void unless the 
 utmost good faith is shown.' The same is true of a 
 release obtained when the injured person was sick in 
 bed from the effects of the injury and was not able to 
 read.' 
 
 1X11. Cent. R. Co. v. Welch, 52 111. = Chicago & C. R. R. Co. v. Doyle, 
 
 183 ; Pennsylvania R. Co. V. Shay, 82 18 Kan. 58. icd p, ot 
 
 Pa. St. 198. < Gibson v. Railroad Co., 164 Pa. St. 
 
 2Mentzer v. Armour, 18 Fed Rep. 142 j n„ kr au,c 
 
 373; see Woyciechowski V. Sugar Re- ^Bussian v. Railroad Co 56 Wis 
 
 fining Co 177 Pa. St. 59; Gibson v. 337 ; Eagle Packet Co. v. Defnes, 94 
 
 Railroad Co., 164 Pa. St. 142; Phares 111.598. ,, ■, ^ r„ 7, wi, 
 
 V. Railway Co., (Ind. App.) 50 N. E. 'Lusted v. Railroad Co., 71 Wis. 
 
 Rep. 306. • 391. 
 
^295 EVIDENCE— FACTS INADMISSIBLE. 496 
 
 An injured party, ordinarily, is bound by a release 
 made in consideration of the payment of a certain amount 
 of money agreed upon by the parties, as a compensation 
 for the personal injuries.^ 
 
 The mere inability to read the English language or 
 comprehend and understand its meaning is not a suf- 
 ficient cause for holding the release void.' 
 
 Neglect on the part of the injured party, who is able to 
 read the release will not vitiate it if no fraud was prac- 
 ticed/ 
 
 If it subsequently appears that the injuries were 
 greater than at first appeared, or were known at the time 
 the release was executed, thereleaseis still binding upon 
 the parties.* 
 
 In Baltimore & O. Ry. Co. v. Bryant, 6 O. C. D. 418, 
 9 O. C. C. R. 332, it is held that if the plaintiff was able to 
 read and write, and he was in no manner prevented from 
 reading the release and was capable of understanding 
 the effect of the same, and three months after the acci- 
 dent signed such release and accepted the benefit pro- 
 vided by the association, it will defeat his right to main- 
 tain an action against the railroad company. 
 
 Whether the party was in a condition of mind to con- 
 sider the effect of the release and elect between the action 
 for damages or the acceptance of the benefits of the relief 
 association of which he was a member, is for the jury 
 under proper instructions.^ 
 
 The weight of authority is that when a person receives 
 some kind of satisfaction, although inadequate and 
 though at the time of injury, when its full consequences 
 are unknown, it is a bar to any subsequent action, either 
 by such person or, in case of death, by his legal repre- 
 
 1 Chicago, etc. Coal Co. v. Peterson, Iowa 547 ; Germania Fire Ins. Co. v. 
 39111. App. 114; Gibson v. Railroad Railroad Co., 72 N. Y. 90; Pratt v. 
 Co., 164 Pa. St. 142 ; Woyciechowski Castle, 91 Mich. 484 ; Albrecht v. 
 V. Spreckels Sugar R. Co., 177 Pa. St. Railway C6., 87 Wis. 105. 
 
 57; Spitze v. Railway Co., 75 Md. ^ Kane v. Traction Co., 186 Pa. St. 
 
 162; Owens v. Railway Co., 35 Fed. 145;Seelevv. Traction Co., 179 Pa. 
 
 715. St. 334. ' 
 
 2 Albrecht v. Railroad Co., 87 Wis. ^b. & Q. Ry. Co. v. Bryant, 6 O. C. 
 lO^- . , ^. D. 418 9 0. C. C. 332; Schultzv. Rail- 
 
 "Squires v. Inhabitants, etc., 145 way Co., 44 Wis. 638; Mullens v. Rail- 
 Mass. 192; Wallace v. Railway Co., 67 way Co., 127 Mass 86 
 
497 EVIDENCE — FACTS INADMISSIBLE. E 296-297-298 
 
 sentatives.^ But the contra doctrine is held by the fol- 
 lowing authorities : ^ 
 
 § 29b. Stipulations Waiving Liability Void. Some 
 corporations and companies who employ a large number 
 of men have sought to avoid liability or the natural conse- 
 quences of their negligence which may be committed or 
 done in their business, obtaining from their employes, as 
 a part of the consideration of the employment, an agree- 
 ment by which the persons so hired release their employer* 
 from any liability for damages and agree to save said 
 employer harmless for any injury received by said em- 
 ployes when in the discharge of their duties. Such 
 agreements have been held void on the grounds of pub- 
 lic policy.' buch g,greements might also be invalid as 
 based on an inadequate consideration, for the reason that 
 they are not voluntarily. 
 
 § 297. Sex. In actions for damages for a personal 
 injury, no discrimination or distinction is made in the 
 evidence offered and received, nor any favorable con- 
 sideration shown on account of sex to secure or obtain a 
 reasonable compensation. Each person stands on the 
 same level, and his or her rights are determined by the 
 same rules and principles.* 
 
 § 298. Injuries Received on Sunday. It is a general 
 doctrine now universally acknowledged by the courts, 
 that no person can take advantage of his own wrong. 
 When persons are employed by a railway company, they 
 are subject to the rules and instructions of such com- 
 pany. If they are what are called traffic employes, 
 operators of trains, whether passenger or freight, they 
 must rotate, as it has been the custom, m and out of 
 the terminus of their route, in a regular order. These 
 men are subject to delays caused by accidents, storms, 
 and of other causes. They must remain with their 
 
 1 Haigh V. Royal Mail S. P. Co., 52 ' Railroad Co. v. Kasson, 49 Ohio St. 
 
 ^5 "bS^S"^'^ li^tUr^d" v: %ox v. Glastenhury, 29 Conn. 204; 
 
 32 N. E. Rep. 302. ^^^^ ^^.j^^y j^;^_ p 1453_ ,ec. 3i9a. 
 
 32 
 
§ 298 EVIDKNCE — FACTS INADMISSIBLE. 498 
 
 trains, regardless of the day of the week, or the hour of 
 the day, until the destination of such train is reached. 
 From the nature of the business of railway companies, 
 it is important that no delay or unnecessary stops be 
 avoided. The traffic proceeds on Sundays very much as 
 upon other days. Without discussing the moral phase of 
 operating steam railroads, street railways, etc., on that 
 day, it is well known that accidents sometimes occur 
 on such days, and persons or employes are injured. 
 The fact that the injury occurred on Sunday forms no 
 defense to a recovery, though the employe may be guilty 
 of a technical violation of Sunday laws.^ 
 
 In Massachusetts the strict enforcement of the law 
 was exacted,^ and no recovery was allowed, but the 
 holding was severely criticized, and the rule abrogated 
 by a statute passed in 1884.^ 
 
 Judge Cooley, in his work on Torts, p. 155, after refer- 
 ing to the Massachusetts rule, says : " The cases arising 
 under Sunday laws must be considered in connection 
 with a familiar principle of law of civil wrongs, which, as 
 applied by other courts, would leave them without sup- 
 port. The principle is, that to deprive a party of redress 
 because of his own illegal conduot, the illegality must 
 have contributed to the injury. It must appear that a 
 relation existed between the act or violation of law 
 on the part of the plaintiff, and injury or accident of 
 
 iDoyle V. Railroad Co., 118 Mass. 367; Schmidt v. Humphrey, 48 Iowa 
 
 195, 19 Am. R. 431; Louisville, etc. 652; Knowlton v. Railroad Co., 59 
 
 Rd. Co. V. Buck, 116 Ind. 666 ; Louis- Wis. 278 ; Wentworth v. JeflFerson, 60 
 
 ville, etc. Rd. Co. v. Frawley, 110 Ind. N. H. 158 ; Platz v. Cohoes, 89 N. V. 
 
 18; CarroUv. Railroad Co., 58 N. Y. 219; Stewart v. Davis, 31 Ark. 518 
 
 126, 17 Am. R. 221 ; Wood v. Railway Baldwin v. Barney, 12 R. I. 392 
 
 Co., 72 N. Y. 195 ; Phil., etc. R. R. Patterson Ry. Ac. Law, 64 and 65 
 
 Co. V. Phil, steam Tow B, Co., 23 Cooley on Torts, p. 155 ; Sharp v! 
 
 How. U. S., 209, cited in 105 U. S. 636 Evergreen Township, 67 Mich. 443, 
 
 and 125 U. S. 581 ; Mahoney v. Cook, Van Auken v. Railway Co., 96 Mich. 
 
 26 Pa. St. 342; Baker v. Portland, 58 307; Gross v. Miller, 93 Iowa 80, 50 
 
 Me. 199, 4 Am. R. 271 ; Norris v. N. E. Rep. 385. 
 
 Litchfield, 35 N. H. 271 ; Opsahl ' Day v. Street Ry. Co , 135 Mass. 
 
 V. Judd, 30 Minn. 136; Phil., etc. 118, 44 Am. Rep. 447; Bosworth v. 
 
 R. R. Co. V. Lehman, 56 Md. 209, Swansey, 10 Met. (Mass.) 363; Davis 
 
 40 Am. R. 415; Powhates Steam- v. Somerville, 128 Mass. 594, 35 Am. 
 
 boat Co. V. Railway Co., 24 How. U. S. Rep. 399; 2 Wood on Railroads 
 
 247; Sutton v. Wanwatosa, 29 Wis. (Minor's ed.), p. 1421 note 
 21 ; Flagg v. Milbury, 4 Cush. (Mass.) ^General Laws, Massachusetts, 1884, 
 
 243; Johnson V. Railroad Co., 4 Exch. c. 37. 
 
499 EVIDENCE -FACTS INADMISSIBLE. j 299 
 
 which he complains ; and the relation must be such as to 
 have caused, or helped to cause, the injury or accident, 
 it must have been some act, omission or fault 
 naturaiij' and ordinarily calculated tfi produce the injury 
 or from which the injury or accident might naturally 6r 
 reasonably been anticipated under the circumstances." 
 
 § 299. Expenses of Counsel Fees. One of the 
 recognized principles of law in relation to damages for 
 personal injuries, is to allow such an amount as will 
 recompense for the wrong done to the injured person 
 through bhe negligent act of the wrongdoer, so far as the 
 same can be represented and measured by money. It 
 has been shown and fully discussed that one of the ele- 
 ments of damages to be considered by a jury and for 
 which an award may be assessed is the item of expenses 
 necessary to effect a cure. These expenses must be in- 
 curred. The plaintiff is liable for his failure or neglect, 
 and the consequences arising therefrom, if he does not 
 employ a phj-sician, and does not use reasonable means 
 to effect a cure. Expenses become one of the natural 
 and reasonable results of the negligence and injury 
 caused thereby. They are one of the effects, as sure 
 and certain as anj- to follow a cause. No question is 
 raised nor any dispute made that all reasonable expenses 
 necessary to effect a cure are proper items of damage. 
 But there seems to be one radical exception to this gen- 
 eral and universal rule, and that is the item of expenses 
 of counsel when the injured person is compelled to resort 
 to litigation to obtain his rights and to collect the dam- 
 ages which he may have sustained. The weight of au- 
 thority, with few exceptions, holds that the items of ex- 
 pense for counsel fees cannot be allowed as one of the 
 elements of damage; nor are any items of expense 
 added to the verdict except those which are included in 
 the taxable costs, and which are fixed by statute or rules, 
 of court. 
 
 The reason for this rule, is that there is no certain or 
 recognized rule by which to regulate, measure and fix 
 the amount of counsel fees to be allowed. Again, the 
 amount of work required to be done in personal injury 
 cases is uncertain and indeterminable, and it would be 
 impossible to formulate a rule by which to determine the 
 extent of services to be rendered and when rendered to 
 
I 299 EVIDENCE — FACTS INADMISSIBLE. 500 
 
 fix the value thereof. Again, the amount of time given 
 and work done by any attorney in a case would not be a test 
 of the value of the services rendered, because the worth of 
 such services can not be gauged by any fixed rule. The 
 services of one attorney might be more valuable in a case 
 involving severe injuries and intricate questions than 
 those of a lawyer of little experience and uncertain 
 knowledge. It is also a matter of general knowledge in 
 the profession that the charges for services by attorneys 
 of equal ability vary and are by no means uniform. 
 Hence the charges of an attorney of standing in his pro- 
 fession for experience in and knowledge of the law, 
 would not furnish a test by which to measuce the value 
 of services rendered or to be rendered in any given case. 
 
 The only way to obviate these objections would be to 
 empower the court to allow a reasonable sum as counsel 
 fees in each case after a verdict has been rendered, to be 
 added to the award and included in the taxable costs ; or 
 to add a pro rata per centum to the amount of the 
 verdict, which would increase the verdict by a well known 
 rule. Some rule should be adopted by which counsel fees 
 , could be allowed, like other expenses. 
 
 The only explanation of the present rule for excluding 
 counsel fees is that the amount is uncertain for the real 
 services rendered. They become what is known in the 
 law as one of the items of "remote loss." 
 
 The expenses of litigation, which are not included in 
 compensatory damages, mean principally " Counsel fees."" 
 Such is the established rule.^ 
 
 A contra rule prevails in Connecticut and Ohio, when 
 the jury are permitted to allow such counsel fees as they 
 think are reasonable. Such fees become a question to 
 be found by a jury, for the reason that the question is 
 one of fact.' The same rule is recognized and followed 
 in Georgia under the provisions of a code.' 
 
 2 Henry v. Davis, 123 Mass. 345 
 Oelrichs v. Spain, 15 Wall. 211 
 Haverstock V. Erie Gas Co., 29 Pa! 
 
 St. 284; Flanders V. Tweed, 15 Wall 
 450 ; Lincoln v. Railroad Co., 23 Wend. 
 425; Welch v. Railroad Co., 12 Rich, 
 290; Landa v. Obert, 45 Tex. 539 
 Winkler v. Roeder, 23 Neb. 706 
 Atkins V. Gladwich, 25 Neb. 390 
 Winstead v. Hulme, 32 Kan. H88 
 
 Kelly V. Rogers, 21 Minn. 146; Sec! Geor^rRailVoV'dCot,Vo"Ga' 810ri7a 
 
 E. Rep. 121; Code of Georgia, Sec. 2942. 
 
 66, 1 Sedgwick on Damages, Sec. 66, 
 p. 341-6. 
 
 'Piatt V. Brown, 30 Conn. 326 
 Welch V. Durand, 36 Conn. 182 
 Finney v. Smith, 31 O. S. 529 ; Peck- 
 ham Iron Co. V. Harper, 41 O. S. 100 
 Stevenson v. Morri.o, 37 O. S. 10 
 Hudson V. Voight, 9 O. C. D. 35,-16! 
 O. C. C. 391. 
 
 •Johnson v. East Tenn , Virginia & 
 
50 i EVIDENCE — FACTS INADMISSIBLE. ?§ 300-301 
 
 § 300. Contributions. The fact that contributions 
 or donations are made to an injured person or to the fam- 
 ily of a person negligently killed, is inadmissible in an 
 action for damages. Attempts to introduce such evid- 
 ence have been condemned and the evidence held inad- 
 missible upon any theory.^ 
 
 § 301. Offers of Donation. Offers of money as a 
 charitable donation by the defendant, not conceding any 
 liability for the injury done, or for the loss to the wife, to 
 whom such donation was made in a letter addressed to 
 her, are inadmissible and irrelevant.^ 
 
 § 302. Offers or Negotiations of Compromise. 
 Offers of settlement or any admissions made in the 
 course of an effort to bring about a compromise and 
 disposition of the claim for damages, for the purpose of 
 peace and to avoid litigation, not admitting nor conceding 
 any liability, is incompetent and inadmissible,^ if the offer 
 was not accepted, for or against either party. 
 
 In Wharton on Evidence, Sec. 1082, the rule is stated in 
 this language: "An implied admission of liability, made a 
 part of the negotiations for a compromise, expressly for 
 the purpose of peace (whether such admission be made 
 under the technical proviso, ' without prejudice ' or not) , 
 will not be received in evidence against the party making 
 it when its object was to suggest a scheme of settlement. "- 
 
 Offers of settlement of a suit, not accepted, are not 
 admissible against the party making them on the trial 
 of the action. See Sebree v. Smith, 2 Idaho 329, 16 Pae. 
 
 Rep. 915. ^ ^ ^ 
 
 In an action for damages for personal injuries, defend- 
 ant offered in evidence a letter written to him by plain- 
 tiff's attorney, stating the extent of the injury suffered by 
 plaintiff and containing an offer to accept a certain sum 
 as compensation. It was held that as the letter contained 
 an offer of compromise, it was inadmissible as a whole for 
 any purpose whatever. 
 
 iNorristown v. Moyer, 67 Pa. St. 378 16 N. E. liep.145 ; Insurance Co. 
 
 qs.^- Penn etc Rd Co. v. Marion, v. Warehouse, 93 U. S. 627 ; White v. 
 
 104 T„,1 9qQ 1 N E Reo 814. Old Dominion Steamship Co., 102 
 
 » Gav^sk V Ranroad^Co , 49 Mo. N. Y. 660, 6 N. E. Rep. 289 ; Inter- 
 
 274 Louisvl le etc Railroad Co. v. national & G. N. R. Co. v. Ragsdale, 
 
 WrigKmind.378 leN^E.Rep. 67 Tex. 589 2 S W Rep. 515 r 
 
 14K Knowles v. Crampten, 55 Conn. 336 ,. 
 
 SRoard etc v Verbarg, 63 Ind. 11 Atl. Rep. 593; Solomon Railroad 
 
 107 Daiiey V. Coons, 64^ind. 545 ; Co. v. Jones, 34 Kan. 443 8 Pac Rep. 
 
 Wilt V Bird, 7 Blackf. 258; Louis- 730; Bank y. Seymour, 64 Mich. 59; 
 
 ville J c. Rd Co. V. Wright, 115 Ind. 31 N. W. Rep. 140. 
 
303 
 
 PROVINCE OF COURT AND JURY. 
 
 502 
 
 CHAPTER XXV. 
 
 PROVINCE OF COURT AND JURY. 
 
 Sec. 
 
 303. Relation of Court and Jury. 
 
 304. Province of Court. 
 
 305. Duty to submit to Jury, when. 
 
 306. Questions for Instructions. 
 
 307. Expressions of Opinion. 
 
 308. Province of Jury. 
 
 309. What the Verdict Should Show. 
 
 A Reasonable Verdict. 
 
 Sec. 
 
 310. 
 311. 
 312. 
 313. 
 
 314. 
 
 315. 
 
 Verdict, when Disturbed. 
 
 Inadequate Damages. 
 
 Itemized Verdict. 
 
 Successive Verdicts. 
 
 Damages, when Increased or 
 Corrected. 
 
 Damages, when Decreased. Re- 
 mittitur. 
 
 § 303. Relation of Court and Jury. The court and 
 jury are tribunals created by law to try and hear the 
 issues of law and of fact between the parties to an action; 
 to ascertain and protect the rights of such parties; and to 
 determine and assess, under the rules of law, the dam- 
 ages which one party is entitled to recover from the 
 other. These tribunals must act together, in the trial of 
 .actions for damages for personal injuries. The jury is 
 powerless to act or to bind either party by its decision 
 "without the co-operation of the court. The court is like- 
 -wise powerless to act without the consent of both parties. 
 The relations of the court and jury in the trial of an issue 
 •of fact, and their respective powers and duties are prac- 
 tically settled and defined by the constitutions, statutes 
 and decisions of the courts. Questions of law belong 
 exclusively to the province of the court. ^ 
 
 The court cannot perform the duties of the jury. Ques- 
 tions of fact and the determination of the same are solelj'' 
 within the province of the jury.^ 
 
 1 Adams v. Railway Co., 31 L. J. Rq. 
 38 ; Ashworth v. Railway Co., 18 Q. B. 
 104 ; United States v. Dodge, 6 How. 
 (U. S.) 279; Toland v. Sprague, 12 
 Pet. (U. S.) 300; Randall v. Railway 
 Co., 109 U. S. 478; Railroad Co. v. 
 Woodson, 134 U. S. 614; Herbert v. 
 .Butler, 97 U. S. 319 ; Mt. Adams, etc., 
 Ry. Co. V. Lowery, 20 C. C. A. 596 ; 
 Nolan V. N. Y., N. H. Rd. Co., 53 
 >Conn. 461. 
 
 'fosi, Sec. 308. 
 
 Samuels v. Richmond & D. R. 
 Co., 35 S. C. 493, 28 Am. St. Rep. 
 883 ; Little Miami R. Co. v. Wetmore, 
 19 Ohio St. 110 ; Illinois Centr. R. R. 
 Co. V. Minor, 69 Miss. 710, 16 L. R. A. 
 627. On this question, see Instruc- 
 tions to Juries, Am. & Kng. Encyclo- 
 pedia of Pleadings and Practice. 
 
503 PROVINCE OF COURT AND JURY. § 304 
 
 Inasmuch as the relations of the court and jury are so 
 necessarily and intimately connected with the questions 
 of negligence and of damages, it has been suggested that it 
 would be advisable to give a few of the fundamental prin- 
 ciples bearing upon these questions, which so frequently 
 appear on the trial of this class of cases. 
 
 § 304. Province of Court. It is the duty of the 
 court to determine and apply the law to the facts of a 
 case, either as they may be admitted or as they may be 
 found by the jury. The first duty resting upon the 
 court is to determine whether there is sufficient evidence 
 of negligence to render the defendant liable for the dam- 
 ages sustained, and to support a verdict in favor of the 
 plaintiff.^ 
 
 In Phil., W. cS;: B. R. Co. v. AndersoQ, 72 Md. 519, 8 L. K. 
 A. 673, it was held that the existence of negligence cannot 
 be determined as a matter of law, unless the inference of 
 it from the facts is certain and uneontroverted. 
 
 In Central Rd. Co. v. Thompson, 76 Ga. 770, it was said 
 that the court cannot tell the jury what facts make negli- 
 gence and thus reach a conclusion for them. 
 
 In Pennsylvania Co. v. Ratbgeb, 32 Ohio St. 36, it is 
 held that in an action for damages for alleged negligence, 
 the q uestion of negligence on the part of the defendant, 
 or of contributory negligence on the part of the plaintiff 
 is generally a mixed question of law and fact, to be de- 
 cided by the jury under proper instructions from the 
 court. 2 But if all the material facts touching the alleged 
 
 1 Mt. Adams, etc., Ry. Co. v. Low- v. ToflFey, 38 N. J. L. 525; Bonnell v. 
 
 ery 20 C. C. A. 596 ; Goodlett v. Rail- Railway Co., 39 N. J. L. 189 ; Bait. & 
 
 way Co , 122 U. S. 392; Louisville, O. Rd. Co. v. State, 60 Md. 473, 4 A. 
 
 etc Rd. Co. V. Woodson, 134 U. S. & E. Rd. 1514; Bait. & O. Rd. Co. v. 
 
 €14- United States v. Hodge, 6 How. State, 30 Ind. 366 ; Indianapolis, etc., 
 
 (U S ) 279 ■ Chandler v. Van Roeder, Rd. Co. v. Estes, 96 111. 470 ; Grand 
 
 24 U S 224; Improvement Co. v. Trunk Rd. Co. v. Nichol, 18 Mich. 
 
 Munson 14 Wall. 442 ; Roundtree v. 170 ; GrifiSn v. Railway, Co., 68 Iowa 
 
 Smith lbs U. S. 269; Delaware, L. & 638; Sabotta v. Insurance Co., 54 Wis. 
 
 W Rd' Co v Converse, 139 U. S. 469; 687; Fernandes v. RaiiwayCo.,52Cal. 
 
 Samuels v. Railway Co., 35 S C. 493, 45; Barton v. Railway Co 52 Mo. 
 
 28 Am. St. Rep. 883; Latremouille v. 253; C. C. & C. R. Co. v. Crawford, 
 
 Railway Co., 63 Vt. 336 ; Fchr v. Rail- 24 Ohio St. 631 ; Penn., etc., Rd. Co. 
 
 wavCo 49 N. Y. 87 ; Dickens V. Rail- v. Rathgeb, 32 Ohio St. 66. 
 wav Co' 1 Abb. N. Y. App. 504; Kay ^ Railroad Co. v. Doyle, 50 Neb 555, 
 
 V Railway Co., 65 Pa. St. 269 ; Penn, 70 N. W. Rep. 43; New Omaha Thom- 
 
 etc Rd Co V Righter, 42 N J. L. son-Houston Electnt; Light Co v. 
 
 180 ■ Delaware & L. W., etc., R. Co. Baldwin 87 N. W. Rep. 29. 
 
g 304 PROVINCE OP COURT AND JURY. 504 
 
 negligence be undisputed or found by the jury and admit 
 of no rational inference but that of negligence,, in such 
 a case the question of negligence becomes a matter of law 
 merely and the court shoi^ld so charge the jury, aifirming 
 Railroad v. Elliott, 28 Ohio St. 340, and Cleveland, C. & 
 C. Rd. Co. V. Crawford, 24 Ohio St. 631. See also B. & O. 
 Ry. Co. V. Stoltz, 9 O. C. D. 638, 18 O. C. C. R.93. But if 
 there is not sufficient evidence to render the defendant 
 liable for the injury done, then the court should direct a 
 verdict for the defendant. 
 
 In Mt. Adams, etc. St. Ry. Co. v. Lowery, 20 C. C. A. 
 596 (a case at Cincinnati), the question as to when a trial 
 court should or should not direct a verdict, is discussed 
 at great length and a large number of authorities are 
 cited. It is laid down as a general proposition that it is 
 the duty of the court to direct a verdict unless there is 
 some material and substantial evidence which, if credited 
 by the jury, would in law justify a verdict in favor of the 
 other party. When there is any such evidence the court 
 should submit the case to the jury. The distinction be- 
 tween evidence that is sufficient or insufficient in fact or 
 in law is considered, together with rules as to the duty 
 of the court in respect thereto. The court neverthe- 
 less says that it is impossible from the very nature of the 
 subject to lay down a ha/rd and fast rule, by which a 
 trial judge may determine when the evidence is of a 
 greater weight than should be regarded as a mere scin- 
 tilla. The court says : "We only wish to. be understood 
 as holding whenever there is evidence of so positive and 
 significant a character as, if uncontradicted, would sup- 
 port a verdict, it is the duty of the court to submit the 
 case to the jury under proper instructions. It is certainly 
 not his function to weigh the evidence for the purpose of 
 'saying how the verdict should go." This doctrine is re- 
 affirmed in Pittsburg & W. Co. v. Thompson, 82 Fed. 
 Rep. 720. _ What is meant by material and substantial 
 evidence is not defined in these opinions of the court, 
 except that it is said that the evidence must be of ^.positive 
 and significant character, such as would support a ver- 
 dict. In other words the evidence must be sufficient. 
 Substantial evidence must mean therefore sufficient evi- 
 
505 PROVINCE OP COURT AND JURY. § 305 
 
 dence. They are synonymous terms when used 'in this 
 connection.^ 
 
 In Chicago, St. Paul, M. & O. Ry. Co. v. Bellwith, 83 
 Fed. Rep. 437, the court said : "At the close of the evi- 
 dence there is always a preliminary question for the 
 judge before the case can properly be submitted to the 
 jury, and that question is not whether there is literally 
 no evidence but whether there is any substantial evi- 
 dence upon which the jury can properly render a verdict 
 in favor of the party producing it."^ 
 
 In Randall v. Railroad Co., 109 U. S. 478, it is said : 
 "It is the settled law of this court that when the evi- 
 dence given at the trial, with all its inferences that the 
 jury could justifiably draw from it is insufficient to sup- 
 port a verdict for the plaintiff, so that a verdict, if 
 returned, must be set aside, the court is not bound to 
 submit the ease to the jury, but maj direct a verdict for 
 the defendant." This rule is cited and approved in 
 Louisville, etc. Rd. Co. v. Woodson, 134 U. S. 614. 
 
 But where there is no conflict in the evidence, con- 
 tributory negligence is a question of law for the court.* 
 
 And where the facts are such that all reasonable men 
 must draw the same conclusion from them, the question 
 of negligence is one of law, for the court.* 
 
 § 305. Duty to Submit to Jury, When. When 
 the facts are disputed, or when more than one conclusion 
 may be drawn therefrom by reasonable and sensible men, 
 then it is the duty of the court to submit the case to the 
 jury for consideration and determination as to what the 
 evidence tends to establish.* In so doing the court should 
 give the jury proper instructions as to the law applicable 
 to the evidence, both upon the question of negligence and 
 upon the measure of damages. 
 
 1 Hudson V. Weir, 29, Ala. 294; ^Apsey v. Railroad Co., 83 Mich. 
 
 Barreda v. Silsbee, 21 How. (U. S.) 440. 
 
 146; Schnchart v. Allen, 1 Wall. 369. * Grand Trunk Ry. Co. v. Ives, 144 
 
 ! Commissioners v Clark, 94 U. S. U. S. 408 ; Cooley on Torts p. 670. 
 278 • North. Penn. R. Co. v. Com. Nat. ' Marietta & Cin. Rd. Co. v. Picks- 
 Bank 123 U. S. 727 ; Delaware, L. & ley, 24 Ohio St. 654 ; Railway Co. v. 
 W R Co V. Converse, 139 U. S. 469 ; Levally, 36 Ohio St. 226; Railway Co. 
 Laclede Fire Brick Mfg. Co. v. Hart- v. Henderson, 37 Ohio St. 562; Dick 
 ford Boiler Inspection & Ins. Co., 9 v. Railroad Co., 38 Ohio St. 389 ; Rail- 
 C. C. A. 1 ; Gowen v. Harley, 6 C. C. way Co. v. Murphy 50 Ohio St 135 ; 
 X. 190. Snell V. Street Ry. Co., 6 C. D. 346,9 
 
^ 305 PROVINCE OF COURT AND JURY. 506 
 
 In Southern Pac, Ry. Co. v. Tomlinson, 163 U. S. 361, it 
 was held: "When a given state of facts is such that 
 reasonable men may fairly differ upon a question as to 
 whether there was negligence or not, the determination 
 of the matter is for the jury. To the same effect. Grand 
 Trunk Ry. Co. v. Ives, 144 (J. S. 408, and authorities cited. 
 South Pac. Ry. Co. v. Burke, 9 C. C. A. 29, and authori- 
 ties cited. 
 
 Where the question of contributory negligence 
 depends on a variety of circumstances, from which 
 different minds may arrive at different conclusions, as to 
 whether there was negligence or not, the question ought 
 to be submitted to the jury under proper instructions.^ 
 
 When the facts are undisputed, and two reasonable and 
 fair minded men might draw inferences from them so 
 different that according to the conclusion of fact reached 
 by one there would be negligence, while that deduced by 
 another would show the exercise of ordinary care, the 
 issue should be submitted to the jury for determination.^ 
 
 If different minds may reasonably draw different con- 
 clusions or inferences from the state of facts established 
 by the evidence in a cause, whether such facts show negli- 
 gence or contributory negligence, it is not a question of 
 law for the courts, but must be submitted to the jury. 
 
 When the liability of the defendant is conceded, it is 
 still the duty of the court to instruct the jury as to the 
 measure of damages, because it is the province of the 
 jury to determine and award the amount of damages.' 
 
 C. C. R. 348 ; Wells v. Street Ry. Co., Davidson v. Railway Co., 34 Minn. 51 ' 
 
 ■6 C. D. 137, 9 C. C. R. 340 ; Fuller v. Muldowney v. Railroad Co., 32 Iowa 
 
 Jewett, 80 N. Y. 46, 36 Am. Rep. 575; 176 ; Atkinson v. Goodrich, etc., 60 
 
 9.°^^l'f^J'- ^*'l''°ad Co., 100 N. Y. Wis. 141, 157 ; McKey v. Hyde Park, 
 
 462, 3 N.B.Rep. 344; Clark V. Railroad 134 TJ. S. 84 ; Penn etc Rd Co v! 
 
 Co., 36 N. Y. 139 ; Hathaway v. Rail- Green, 140 U S 49 • 
 
 road Co., 29 N. Y. 489 ; Ellis v. Rail- , , . 
 
 road Co., 95 N. Y. 546 ; Goodrich v Marietta & Cin. Rd. Co. v. Picks- 
 Railroad Co., 116 N. Y. 404- Corcoran W. 24 Ohio St. 654; Railway Co. v. 
 V. Railway Co., 126 N. Y. 673 ; N. Y. Murphy, 50 Ohio St. 137. 
 L. E. & W. Rd. Co. V. Euches, 127 Pa. ''Deans v. Railroad Co., 107 N. C. 
 St. 297 ; Knight v. Railroad Co., 110 686, 22 Am. St. Rep. 902 ; Chic. B. & 
 N. C. 58 ; Deans v. Railroad Co., 107 Q- R- Co. v. Pollard, 53 Neb. 746, 74 
 N. C. 686, 22 Am. St. Rep. 902; N. W. Rep. 33 ; Railway Co. v. Loeh 
 
 Schmidt v. Sinnot, 103 111. 166 
 Penn.,etc.Rd.Co.v.Frana, 112 111. 398 
 Yarnell v. Railroad Co., 75 Mo. 575 
 
 neison, 40 Neb. 37, 58 N. A. Rep. 535. 
 8 Toledo V. Clopeck, 9 O. C. D. 432, 
 17 C. C. R. 585. 
 
507 PROVINCE OF COURT AND JURY. j 306 
 
 § 306. Questions for Instructions. In an action 
 brought to recover damages for a personal injury, some 
 of the following questions will arise on the trial, upon 
 which it will be the duty of the court to give instructions 
 to the jury, when the fact of negligence is disputed. 
 
 Fir.^t. What duty or obligation was imposed or resting 
 upon the defendant to the plaintiff or to the public in 
 relation to the accident and injury ? 
 
 Second. Was there any violation of such duty by the 
 defendant in whole or in part ? 
 
 Third. If so, was such violation the natural or proxi- 
 mate cause of the injury in this case ? The violation of 
 duty as here used means the doing of some act which 
 was contrary to some rule, or omitting to do something 
 which was required to be done, either one of which may 
 have been the cause of the accident. 
 
 Fourth. Was the plaintiff free from any negligence on 
 his part in relation to such accident or wrong which 
 caused the injury; or did his negligence contribute to 
 such accident in such a degree as to release the defendant 
 from liability ? 
 
 Fifth. Was such accident the result of the negli- 
 gence of a fellow servant of the injured person, which 
 would release the defendant from liability ? 
 
 Sixth. If the defendant is found by the jury to be 
 responsible for the accident and injury or wrong done, 
 and is liable for the injuries sustained by the plaintiff, 
 then arises the question what is the measure of damages 
 which will be an adequate and reasonable compensation 
 for such injury or wrong ? 
 
 The court, in his charge, should distinguish in appro- 
 priate language between these questions, and how they 
 relate to each other, and bear upon the liability of the 
 defendant, so that the jury will be able to pass upon 
 them intelligently, and reach a fair, just and reasonable 
 conclusion. He should state in clear and concise lan- 
 guage what is meant by damages, and give the reasons, 
 without expressing an opinion on the merits or on the 
 questions which the jury are to decide, why and for what 
 purpose damages are allowed in this class of cases. 
 
 The instructions of the court should point out and 
 specify the different elements of damages which enter 
 
? 306 PROVINCE OF COURT AND JURY. 508 
 
 into and make up the entire damages which the injured 
 person under the proofs in the case is entitled to recover.^ 
 
 The attention of the jury should be called to the evi- 
 dence upon the expenses incurred or paid, if any, loss of 
 time, physical pain and mental suffering, the effect of the 
 injury upon the plaintiff to carry on his business or pur- 
 sue his profession in the future, or to any other element 
 of damage, if any, which the evidence shows to have 
 been sustained. The evidence so offered forms the basis 
 upon which the jury are to act and determine the amount 
 of damages to be awarded to the injured person.' 
 
 The two qfuestions for the jury are separate and 
 distinct and should be so considered, viz., the measure 
 of the defendant's duty, and the measure of the defend- 
 ant's liability. 
 
 In Spade v. Railroad Co. , 168 Mass. 285, 43 L. R. A. 
 832, the court used this language: ^'^ The measure of 
 defendanfs duty in determining whether a wrong has been 
 committed is one thing, the measure of liability when a 
 wrong has been committed is another. " 
 
 The court in his instructions to the jury should specify 
 the different elements of damages upon which any evi- 
 dence has been given on the trial of the case, and should 
 tell them in their deliberations only to consider such 
 evidence as has been given, to confine the amount of their 
 ' verdict thereto, and to exclude all other questions of 
 damages therefrom.' 
 
 ■ ''^°"f°,X- Railway Co., 11 Fed. as to the extent of the injury he has. 
 
 Rep. 864; Harris v. Railway Co 13 sustained, or in other particulars, 
 
 Fed. Rep 592; Mac«;oy v. Railway but that the jury should carefully 
 
 Co., 18 Fed. Rep. 23b ; Secord v. Rail- consider all the evidence in the case^ 
 
 wayCo.,18 Fed Rep. 221; Davidson including the testimony of the 
 
 f^rnt n% i°"^!'\^^P-o1?^ ^*^^- Pl'ysicians, who were examined on 
 
 !XT ;°'i^^'°°f'^^i°''^.2^^-. ^^li^lf of the plaintifiF and they 
 
 T?i,?otT„' f?*^"-,, ^il.^i""®*'^" ^- sl'O'ild award only such damages. 
 
 Erbl25Ill.,17N.E.619,707thefol- should they find the defendant 
 
 owing charge was approved : " The guilty, as from all the evidence they 
 
 ift? Z?,""*^" instructed that, if believe the plaintiff fairly and justly 
 
 h1^. f^" • "^ f "^idering all the evi- ought to receive, and the^ defendant 
 
 ttTC^thaT^eSda1t^^raS[^• '^ ^ ^"^ ^ »— °^ ^^^ 
 vet in determining the amount of 'Greenleaf v. Birth, 9 Pet (U SV 
 
 ^o^'Kh"? °">?^* *° "^"'■'^' '^^y ='« 292 ; Fordyce v. Beecherf Tex Ci^l 
 not bound to believe or accept as App. 20 S W Reo 962 
 true all the testimony of the plaintiff ''^ o- w. icep. aoz. 
 
509 PROVINCE OF COURT AND JURY. § 307 
 
 A judge may very properly say to the jury that there 
 is no evidence to sustain an alleged fact.' 
 
 A perfunctory specification of the items constituting 
 the damages claimed as the result of the negligence 
 attributed to defendant without reference to or explana- 
 tion of the evidence or law applicable to either item in 
 the charge of the court is inadequate and cause for 
 reversal.^ 
 
 § 307. Expressions of Opinion. It is also the duty 
 of the court to omit or refrain from expressing any opin- 
 ion as to the amount of the damages to be awarded, or to 
 express any opinion upon the evidence, except to say that 
 the damages should be reasonable; and in connection 
 with such suggestion the court may call the attention of 
 the jury to the injury, its extent, effect upon the injured 
 person, and its probable future consequences." 
 
 The court cannot instruct the jury that their verdict 
 must not exceed a certain sum, although two former ver- 
 dicts on the same evidence had been set aside as exces- 
 sive.* 
 
 Exception. But in the courts of the United States 
 the rule is so modified that the court may express an 
 opinion upon the evidence if the question of fact is subse- 
 quently left to the jury for determination.^ 
 
 It is also the duty of the court to state to the jury that 
 damages are not awarded to the injured person for any 
 punishment of the defendant for the injury sustained, 
 when it appears that such injury was done without malice 
 or intent to injure, but as a compensation or recompense 
 
 lEast Tenn. & V. G. Rd. Co. v. Powell v. Railway Co., 68 N. C. 
 
 Markens, 88 Ga 60, 14 L. R. A. 281. 395 ; Samuel v. Railway Co , 35 S. C. 
 
 ' Todd V. 2nd Ave. Traction Co., Pa. 493, 28 Am. St. R. 891 ; h. S. & MS. 
 
 St. 6 Am. Neg. Rep. 686 ; Phil. & Ry. Co. y. Franz, 127 Pa. St. 297 ; 
 
 R. R. Co. V. Adams, 89 Pa. St. 31 ; Col- Chic. & N. W. Ry. Co. v. Snyder, 117 
 
 lins V. Leafey, 23 (W.) N. C. 264. HI. 317 7 N. E. Rep 604 ; Wiede- 
 
 'Chap. 1, Sec. 12, supra; Vicks- kind v. Tuolumme, 65 Cal. 431, 4 Pac. 
 
 bure & M. R. R. Co. v. Putnam, 118 415. „ „ „ ,,. aa 
 
 VS. %5 ; U. S. V. Railroad Co., 123 J Il'^^rlfi'i V a'^Rw'- '' 
 
 U. S. 113; C. H. & D, Rd. Co. v. Miss. 710, 16 LR. A^ 627. 
 
 Hedges, 8 O. C. D. 265 (15 C. C. R. ' Rucker v Wheeler 127 U. S 85 
 
 254), where it is held that the court Hansen v Boyd, 161- U.S 405 , V cks 
 
 should avoid any expressions of opin- burg & M. Rd. Co. v. Putnam, 11 8 U. 
 
 ion as to matters to be determined S. 545; Nudd v. Burrows, 91 U. S. 426. 
 by the jury. 
 
i 307 PROVINCE OP COURT AND JURY. 5I0< 
 
 for such injury, so far as any money consideration may 
 be able to restore the same. ^ 
 
 The court should not turn over the whole case without 
 proper instructions and leave it to their discretion to 
 estimate the damages upon mere "surmise or conjec- 
 ture," or to draw incorrect inferences from the facts in 
 the case material to the issue.^ 
 
 Exemplary Damages. In some actions the plaintiff 
 may be entitled to recover exemplary damages. In such 
 cases the court should instruct the jury that they may 
 also award, in addition to the compensatory damages, 
 exemplary damages and that these damages are allowed 
 in the nature of punishment, if they should find as a 
 fact that the injury or wrong was done with malice, or 
 intent to harm. The distinction between compensatory 
 and exemplary damages should be pointed out, and stated 
 in clear and concise language, so that the jury could not 
 be misled or confused in the consideration to be given to 
 the allowance of damages.^ 
 
 In an action for damages for personal injuries, where 
 there is no testimony tending to prove gross, wanton or 
 reckless negligence by the defendant, a requested 
 instruction that no exemplary or punitive damages can 
 be recovered, should be given.* 
 
 Exemplary damages cannot be allowed or recovered 
 for negligently causing the death of another person and 
 the jury should be so instructed,' unless authorized by 
 statute." 
 
 To entitle the plaintiff to exemplary damages, he must 
 have suffered actual damages, and whenever it appears 
 
 Jin Cleveland, C. C. & I. Rd. Co. v. v. Railway Co., su/>ra, the court said : 
 Newell, 104 Ind. !i64, 3 N. E. Rep. 836, " The iury cannot act arbitrarily, but 
 the court said : They should award must have some daia according to the 
 such damages "as in their judgment nature of the subject, so as to have 
 ■would compensate, so far as money some measure or standard to go by " 
 "^fi/rZ ^"=V°l'"'y- ^ „ ' Sedgwick ou Damages, Sees. 387, 
 iQ«^f / ''■e^^'i"'^yonS°-' ^^^- ^^- 388, 1318, 1319, 1320; Neeb v. Hope 
 196 45 Am. St Rep. 894 ; Davidson v. U 1 Pa. St. 145, 2 Atl. Rep. 568 ; Sam- 
 Railroad Co., 44 Fed. Rep. 476; Staf- uels v. Railway Co., 36 S. C. 493, 28 
 ford v. Oskaloosa, 64 Iowa, 251 . Am. St. Rep. 891 
 Goodwin V Railroad Co., Mo. 11 Am. * Louisville & Nashville Rd. Co. v. 
 
 Eng. R. 46U; Little Miami Rd. Co. Hall, 87 Ala. 708. See also Perham 
 
 V. Wetmore, 19 Ohio St. 110 ; Martin v. Electric Co., 40 h. R. A 799 
 
 ft«« lir' ^^- ^- ^T.^^-f 22 ^ ^- ^^P- ' Thompson V. Railway Co., 91 Ala* 
 
 i^o^°,o"t°V-J^^'''^^y ^°- 1*8 N. 496, U L. R. A. 146. 
 
 Y. 182, 42 N. E. Rep. 579. In Watts «See Chap. 20, Sec. 195. 
 
5 1 1 PROVINCE OF COURT AND JURY. § 30g 
 
 from the evidence or the finding of the jurv that his 
 injuries were nominal, then the jury should not find and 
 return a verdict inflicting punitive damages. ^ 
 
 § 308. Province of Jury. It is the province of the 
 jury to decide all questions of fact. This is a right guar- 
 anteed by the organic law of the United States.' 
 
 In actions to reco^^er damages for a personal injury, all 
 disputed or doubtful questions of fact must be submitted 
 to them for their consideration and determination. In the 
 consideration of these questions, the jury must confine 
 their deliberations and render their verdict in accordance 
 with the law given to them by the court. ^ 
 
 The liability of the defendant will depend upon two 
 distinct classes of facts, which if disputed are to be con- 
 sidered and determined by the jury, to-wit: 
 
 First. Facts and circumstances which show and estab- 
 lish the negiigence, or from which the jury may infer or 
 find negiigence, for which the defendant is responsible, 
 and liable for any damages sustained.* 
 
 Second. If the ]u.yj should find that the injury was 
 caused by the negligence of the defendant for which 
 there is a liability, then the facts and circumstances 
 which show or tend to show the amount of damages sus- 
 tained by the injured person. 
 
 The question of negligence must always be first con- 
 sidered and determined by the jury, for without negli- 
 gence of the defendant, there is no liability, however 
 serious the injury. These questions of negligence and 
 of damages must be determined from the facts and cir- 
 cumstances of each individual case. In some actions for 
 
 1 Stacy V. Portland Pub. Co., 68 United States, than according to the 
 Me 279 ; Schippel V. Norton, 38 Kan. rules of the common law." 
 
 567- Kuhn v. Railway Co., 74 Iowa The constitution of the state of 
 
 137. See Chap. 20, Ssc. 196. Ohio provides : " The right of trial 
 
 2 Amendment to constitution of by jury shall be inviolate. Bill of 
 the United States, Art. 7, which pro- Rights, Art. 1, Sec. 5. 
 
 vides "In suits at common law, » United States v. Hodge, 6 How. 
 
 where the value in controversy shall U. S. 279 ; Del., Lack & West. R. R. 
 
 exceed twenty dollars, the right of Co. v. Converse, 139 U. S. 469. 
 
 trial by jury shall be preserved, and « Railway Co. v. Murphy, 50 Ohio 
 
 no fact tried by a jury shall be other- St. 135. 
 wise re-examined in any court of the 
 
i 308 
 
 PROVINCE OF COURT AND JURY. 
 
 512 
 
 damages for personal injuries, the negligence may be 
 conceded or admitted, but the amount of damages may be 
 disputed. When such is the case, the amount of the 
 damages become a question still for the jury to find and 
 determine. 
 
 Whenever under a given state of facts there would he any 
 dispute or difference between fair and reasonaUe men as to 
 what such facts show or tend to show, or as to any infer- 
 ence which may be drawn from them, then it is the duty of' 
 the court to submit them to the jury .^ 
 
 If the jury find that the defendant was guilty of negli- 
 gence and therefore liable for the injury done, then the 
 next question to be determined is the measure of damages. 
 Each case is to be considered and determined by its own 
 facts. The amount of com/pensation rests with and 
 
 1 Marietta & Cin. R. R. Co. v. 
 Picksley, 24 Ohio St. 654 ; Cleveland 
 & C. C. Rd. Co. V. Crawford, 24 Ohio 
 St. 631; Railway Co. v. Murphy, 50 
 Ohio St. 135; Kelley v. Howell, 41 
 Ohio St. 438; Stockstill v. Railroad 
 Co., 24 Ohio St. 83 ; Colter v. btreet 
 Ry. Co., 9 O. C. D. 865; Littlejohn v. 
 Railroad Co., 148 Mass. 478 ; Cody v. 
 Railroad Co., 151 Mass. 462; Cor- 
 coran V. Railway Co., 19 Hun (N. Y.) 
 368 ; Swift v. Railroad Co., 123 N. Y. 
 €45; Dwindle v. Railroad Co., 120 
 N. Y. 117; Phil., W. & B. R. R. Co. 
 T. Anderson, 72 Md. 519 ; Deans v. 
 Railroad Co., 107 N. C. 6S6, 22 Am. 
 St. R. 902; Emery v. Railroad Co., 
 109 N. C. 589; Hinkle v. Railroad 
 Co., 109 N. C. 472, 1:6 Am. St. R. 581 ; 
 Penn., etc. Rd. Co. v. Fortney, 90 Pa. 
 St. 323; Penn., etc. Rd. Co. v. Ozier, 
 35 Pa. St. 60 ; Arnold v. Railroad Co., 
 115 Pa. St. 135, 2 Am. St. R. 542; 
 Summers v. Bergner B. Co., 143 Pa. 
 St. 114, 24 Am. St. R. 518; Raines v. 
 Railroad Co., 39 W. Va. 50, 24 L. R. 
 A. 236; Virginia Midland Ry. Co. v. 
 White, 84 Va. 498, 10 Am. St. Rep. 
 498 ; Quinn v. Railroad Co., 29 S. C. 
 381 ; Carter v. Oliver Oil Co., 34 S. C. 
 211, 27 Am. St. Rep. 815 ; Tex. & Pac, 
 etc. Rd. Co. V. Robertson, 82 Tex. 657, 
 27 Am. St. Rep. 929 ; Mo. Pac. R. R. 
 Co. V. Platzer, 73 Tex. 117; Davis v. 
 
 Railroad Co., 53 Ark. 117 ; Kellney v. 
 Railroad Co., 101 Mo. 67 ; Barton v. 
 Railroad Co., 52 Mo. 213; Roddy v. 
 Railroad Co., 104 Mo. 234, 24 Am. St. 
 Rep'. 333 ; Reilly v. Railroad Co., 94 
 Mo. 609; Rupard v. Railroad Co., 88 
 Ky. 280 ; Harrison v. Railroad Co., 79 
 Mich. 409 ; Foley v. Riverside, etc. 
 Co., 85 Mich. 7; Evans v. Railway 
 Co., 88 Mich. 442 ; Penn., etc. Rd. Co. 
 V. Marion, 123 Ind. 415 ; Conner v. 
 Street Ry. Co., 105 lud. 62; Greenle.-if 
 V. Railroad Co., 29 Iowa 14 ; Greenleaf 
 v. Railroad Co., 33 Iowa 52 ; McNarra 
 V. Railroad Co., 41 Wis. 75 ; Atchison, 
 T. & S. F. R. Co. V. McCandless, 33 
 Kan. 366 ; Moon v. Railroad Co., 46 
 Minn. 106, 24 Am. St. Rep. 194 ; Mo- 
 akler v. Railroad Co., 18 Or. 189; An- 
 derson V. Railroad Co., 21 Or. 281 ; 
 Kan. & Pac. R. R. Co. v. Ward, 4 Colo. 
 30 ; Nehrbas v. Railway Co., 62 Cal. 
 320; Pennsylvania Rd. Co. v. Green, 
 140 U. S. 49 ; Kane v. Railroad Co., 
 128 U. S. 91 ; Jones v. Railroad Co., 
 128 U. S. 443 ; Dunlap v. Railroad Co., 
 130 U. S. 649 ; Grand Trunk Ry. Co. 
 v. Ives, 144 U. S. 408 ; South. Pac. Ry. 
 Co. v. Tomlinson, 163 U. S. 361; 
 Brockett v. New Jersey Steamboat 
 Co., 18 Fed. 156 ; Shear. & Red. on 
 Neg., Sec. 54, and authorities cited in 
 note. 
 
513 
 
 PROVINCE OF COURT AND JURY. 
 
 308 
 
 depends entirely vpon the good sense, discretion and nnhiased 
 judgment of the jury. ^ 
 
 The determination of the amount of damages to be 
 awarded is within the exclusive jurisdiction of a jury." 
 
 In the case of Christen v. Irwin, supra, the complaint 
 was made that the verdict was excessive. The plaintiff 
 w,;s riding in a buggy, and at the interisection of a street 
 he was run into by a horse and wagon driven by a serv- 
 ant of the defendant. The verdict was 82,500. The 
 court held that the amount of damages a party may have 
 sustained was a question of fact for the jury, but the rule 
 of ascertaining the damages is of course a question of 
 law. 
 
 The verdict of the jury upon a question of fact is final, 
 so long as there is any evidence to support it, notwith- 
 standing the court may differ with them as to the weight 
 to be given to the evidence.' 
 
 In actions for personal injuries the assessment of 
 damages must, within reasonable bounds, be confided to 
 the judgment and discretion of the jury.* 
 
 ' Railroad Co. v. Barron, 5 Wall. 
 90 ; Pennsylvania Rd. Co. v. Rathgeb, 
 32 O. S. 66; Olsen v. Railway Co., 
 45 Minn. 586; Morris v. Railway 
 Co., 45 Iowa, 29 ; Ferguson v Rail- 
 way Co., 63 Wis. 149; Waldhier v. 
 Railway Co., 87 Mo. 37; Ohio & 
 Miss. Rd. Co. V. Judy, 120 Ind. 397; 
 South. Pac. R. R. Co. v. Kendrick, 40 
 Miss. 374; Miss. Centr. R. R. Co. v. 
 Caruth, 51 Miss. 77; Tenn. Coal & 
 Iron Co. V. Roddy, 1 Pick. (Tenn.) 400 ; 
 Inter. Great N. Rd. Co. v. Stewart, 57 
 Tex. 166; Davis v. Railway Co., 60 
 Ga. 329; West & Atl. Rd. Co. v. 
 Young, 84 Ga. 397, 12 Am. St. Rep. 
 320; Louisville & N. R. R. Co. v. 
 Davis. Ala. 12 So. Rep. 780; Phillips 
 V. Railway Co., 42 L. T. R. (N. S.) 6 ; 
 Ashworth v. Railway Co., 18 Q B. 
 104; Adams v. Railroad Co., 31 I,. J. 
 Ex. 38. 
 
 2 Ohio & Miss. R. R. Co. Collarn, 
 73 Ind. 261 ; Whealon v. Railroad Co., 
 36 Cal. 590 ; Tex. Central Rd. Co. v. 
 Rowland, Tex. Civ. App., 22 S. W. 
 Rep. 134; Louisville & N. Rd. Co. v. 
 Davis 99 Ala. 593, 12 So. Rep. 786 ; 
 Christen v. Irwin, III., 17 N. E. Rep. 
 33 
 
 707; Erie Railroad Co. v. Winter, J43 
 U. S. 60. 
 
 3 Turner v. State, 3 O. C. D. 263, 5C. 
 C. R. 537; Conn. Ins. Co. v. Carnahan, 
 10 O. CD. 186; Nelson v. Oregon 
 Ry. & Nav. Co. 13 Or. 141, 9 Pac. 3-_'l ; 
 Dean v. King, 22 Ohio St. 118; Ohio 
 & Mis'!. R. R. Co. v. Judy, 120 Ind. 
 397; Louisville, etc., R. R. Co. v. Mit- 
 chell, 87 Ky. 327 ; Gulf, C. & S. F. Ry. 
 Co. V. Redeker,75Tex. 310, 16Am. St. 
 Rep. 887 ; West. Union Tel. Co. v. 
 Broesche, 72 Tex. 654, 13 Am. St. Rep. 
 843; Virginia, etc., Ry. Co. v. Whue. 
 84 Va 498, 10 Am. St. Rep. 874 ; T. & 
 O. C. Ry. V. Frick, 8 O. C. D. 28, 14 
 C. C. R. 453; Cleveland St. Ry. v. 
 Ebert, 10 O.C. D. 291 ; Tex. & Pac. Ry. 
 Co. V. Brick, 83 Tex. 527, 29 Am. St. 
 Rep. 675; Louisville, N. A. & C. Rd. 
 Co. V. Pedigo, 108 Ind. 481, 8 N. E. 
 Rep. 627 ; Gale v. Railway Co., 76 N. 
 Y. 594. 
 
 < Colorado Mid. Rd. Co. v. O'Brien, 
 16 Colo. 219, 27 Pac. Rep. 701 ; Howes 
 V. Stock Yards, 103 Mo. 60, 15 S. W. 
 Rep. 751 ; Choppin v. Railroad Co , 17 
 La. Ann. 19. 
 
§ 309 PROVINCE OF COURT AND JURY. 514 
 
 The jury are not at liberty to give any sum that they 
 may please/ 
 
 § 309. What the Verdict Should Show. A Reason- 
 able Verdict. A verdict should be a reasonable one. A 
 reasonable verdict is one where the jury weigh the evi- 
 dence with care, fairness, consideration and impartial 
 judgment, and award such an amount as the injured 
 person is justly entitled to recover under the evidence. 
 The jury should act with deliberation. They should 
 exercise the same care and judgment which should 
 characterize their action in the consideration of any other 
 question or business proposition. The expenses incurred 
 or paid are easily determined. The amount to be allowed 
 for bodily pain and mental suffering, or for any perma- 
 nent disability, must be determined hj the facts of the 
 case. The verdict should not show prejudice or disposi- 
 tion to punish the wrongdoer. 
 
 In Armstrong v. Railway Co., 11 Jur. 758, the court 
 said : "In the desire to do right, fix an amount that will 
 fairly compensate for the injury done." 
 
 What has been said about the verdict being a reason- 
 able one, relates to compensatory damages. There are 
 frequently injuries to the person where the injured person 
 is entitled to recover also exemplary damages. They 
 are allowed where the wrong is wantonly and wilfully 
 inflicted, or where the act is done with such gross want 
 of care and regard for the rights of others as to justify 
 the presumption of wantonness or wilfulness.' 
 
 These damages must be consistent with the evidence 
 of the case. They rest within the discretion of the jury.* 
 
 This discretion does not involve the right to exercise 
 mere caprice or gratify feelings of resentment or 
 passion.* 
 
 1 Waldhier v. Railroad Co., 87 Mo. Ward v. White, 86 Va. 212, 19 Am. St. 
 37 ; Welch v. Ware. 32 Mich. 76 Rep. 889. 
 
 2 Whipple V. Cumberland Mfg. Co., « Sedg. on Dam. (3 ed.) Sec. 388. In 
 2 Story (U. S.) 661 ; Thurston v. Mar- Ward v. White, supra, it was held 
 tin, 5 Mason (U.S.) 497; Erie Rail- that the amount of damages recover- 
 road Co. v. Winter, 143 U. S. 60 ; able in actions for personal tort* 
 Richmond & D. R. Co. v. Allison, 86 must be left to the discretion of the 
 Ga. 145, 4 L. R. A. 43. jury, and the court will not grant a 
 
 3 West. Union Tel. Co. v. Eyser, 91 new trial on the ground of the dam- 
 U. S. 495; Milwaukee & St. P. Rd. ages allowed being trivial or exces- 
 Co. V. Arms, 91 U. S. 489 ; Spellman sive, unless the verdict shocks the 
 V. Railroad Co., 35 S. C. 435, 28 Am. understanding and impresses the 
 St. Rep. 858 and note. court with the conviction that it 
 
 ♦Sedgwick on Dam. (3 ed.) Sec. 387 ; resulted from passion or prejudice. 
 
515 
 
 PROVINCE OF COURT AND JURY. 
 
 § 310 
 
 § 310. Verdict When Disturbed. The jury have a 
 large discretion in the assessment of damages, and when 
 there is evidence to support the verdict, the courts will 
 not disturb it. ^ 
 
 This rule is followed even if the verdict does not 
 meet the approval of the court, '' but the verdict must be 
 supported by some material or substantial evidence.' 
 
 The authority of the court to set aside a verdict rests 
 upon the exercise of a sound discretion.* 
 
 1 Rummele v. Alleghany Heating 
 Co., Pa. St. 16 Atl. 78; L. S. & M. 
 S. Ry. Co. V. Rosenweig. 113 Pa. St. 
 519, 6 Atl. 545 ; Henry v. Railway Co., 
 75 Iowa, 84, 9 Am. -St. Rep. 547 ; Mar- 
 cott V. Railway Co., 47 Mich. 1 ; Fort 
 Worth, etc., Ry. Co. v. Wallace, 74 
 Tex. 582 ; Inter & Gr. N. Rd. Co. v. 
 Stewart, 57 Tex. 166; Tenn Coal & 
 R. R. Co. V. Roddy, 85 Tenn. 400; 
 Mil. & St. Paul Rd. Co. v. Armes, 91 
 U. S. 489. 
 
 2 Thurston v. Martin, 5 Ma-son (U. 
 S.) 497 ; Harrison v. Railway Co., 35 
 Fed. Rep. 110; Smith v. Railway Co., 
 90 Fed. Rep. 783; Saunders v. Rail- 
 way Co., 2 L. T. R. 153 ; Atchison, T. 
 & S F. Rd. Co. V. Sadler, 38 Kan. 128, 
 5 Am. St. Rep. 734; Morris v. Rail 
 road Co., 45 Iowa, 29 ; Boston & Colo. 
 Smelting Co. v. Pless, 8 Colo. 87 ; 
 Louisville Sc N. R. R. Co. v. Fox, 11 
 Bush (Ky.) 495; Drew v. Railway Co., 
 26 N. Y. 49; Holyoke v. Railway Co., 
 48 N. H. 491 ; Pittsburg, etc., Rd. Co. 
 T. Andrews, 39 Md. 329: Smith v. 
 Railway Co., 23 Ohio St. 10 ; Turner v. 
 State, 3 O. C. D. 263, 5 C. C. R. 537 ; 
 Conn. Ins. Co. v. Carnahan, 10 O. C. D. 
 186; Cleveland St. Ry. v. Ebert, 10 O. 
 C. D. 291 ; T. C. & C. Ry. v Frick, 8 
 O. C. D. 28, 14 C. C. R. 453. 
 
 In Ward v. White, 86 Va. 212, 19 Am. 
 St. Rep. 889, the court very forcibly 
 says: " From the prolific fountain of 
 litigation, numerous cases must daily 
 spring up, calling for adjudication 
 for alleged injuries, accompanied 
 with facts and circumstances afford- 
 ing no definite standard by which 
 these alleged wrongs can be meas- 
 ured, and which, from the necessity 
 of the case, must be adjudged of and 
 appreciated by the views that may be 
 
 taken of them by impartial men. To 
 the jury, therefore, as a favorite and 
 almost sacred tribunal is committed, 
 by unanimous consent, the exclusive 
 task of examining those facts and 
 circumstances, and valuing the in- 
 jury, and awarding compensation in 
 the shape of damages. The law 
 which confers on them this power, 
 and exacts of them the performance 
 of the solemn trust, favors the pre- 
 sumption that they are actuated by 
 pure motives. It, therefore, makes 
 every allowance for different disposi- 
 tions, capacities, views, and even 
 frailties, in the examination of the 
 heterogeneous matters of fact, when 
 no criterion can be supplied." 
 
 3Mt. Adams, etc., St. Ry. Co. v. 
 Lowery, 20 C. C. A. 596 ; Chicago, St. 
 Paul & M. O. Ry. Co. v. Belliwith, 83 
 Fed. Rep. 437 ;' Laclede Fire Brick 
 Mfg. Co. V. Hartford Boiler Inspec- 
 tion & Ins. Co., 9 C. C. A. 1 ; Dela- 
 ware, L. & W. R. Co. V. Converse, 1.39 
 U. S. 469 ; Gowen v. Harley, 6 C. C. 
 A. 190; Adams v. Railway Co., 31 L. 
 T. (N. S.) Eq 35; Saunders v. Railway 
 Co , 2 L. T. R (N. S.) 153 ; Maher v. 
 Railway Co., 67 N. Y. 52 : Starbird v. 
 Barrows, 62 N. Y. 615; Pennsylvania 
 Rd. Co V. Goodman, 62 Pa. St. 329 ; 
 Citv of Ottawa v. Sweely, 65 111. 434 ; 
 Louisville, etc., Rd. Co. v. Winder- 
 lick, 81 Ind. 105, 10 A. & E. R. C. 410. 
 
 *Brenzinger V. Bank, 10O.C.D775; 
 Manguno & Tomfercaro Co. v Clym- 
 onts, 10 O. C. D. 427 ; Ohio & Miss, R. 
 R. Co. V. Judy, 120 Ind. 397 ; Pitts- 
 burg, Chic. & St. L. R. Co. v. Spon- 
 ier, 85 Ind. 166 ; Wolf v. Trinkle, 103 
 Ind. 355, 3 N. E. 112 ; Shenandoah F. 
 N. Bk. v. Railroad Co., 61 Iowa, 700, 
 
§ 311 
 
 PROVINCE OF COURT AND JURY. 
 
 516 
 
 It should not be exercised except for good and substan- 
 tial reasons, as where the case was submitted to the jury 
 upon a wrong theory, or where the court is satisfied that 
 justice has not been done, or where he is of the opinion 
 that a different result will or ought to follow by a new 
 trial. ^ If it appears that the jury have clearly abused 
 the discretion imposed in them, a new trial should be 
 granted.^ 
 
 When the verdict plainly shows a disposition of the 
 jury to punish the wrongdoer or that thejr deliberations 
 were influenced by passion,' partiality, prejudice or cor- 
 ruption,* or undue sympathy,* caprice," or malevolence, 
 the verdict will be set aside.' 
 
 Anj^ unreasonable or excessive verdict which is not 
 supported by any evidence, the court will set aside." 
 
 § 311. Inadequate Damages. If the verdict is so 
 unreasonably small, unjust, inadequate and insufficient; 
 if it is the result of passion, piejudice, partiality, or 
 perverted judgment, or due to improper influences 
 
 1 Manguno & Tomfercaro Co. v. 
 Clymonts, 10 O. C. D. 427 ; Brenzinger 
 V. Bank, 10 O. C. D. 775 ; Rowe v. Mat- 
 thews, 18 Fed. Rep. 132 ; Johnson v. 
 Railroad Co., 58 Iowa, 348. 
 
 2 Chicago, etc., R. R. Co. v. Shan- 
 nun, i:i 111. 438; Tilley v. Railroad 
 Co., 29 N. Y. 252 ; Houghkirk v. Canal 
 Co., 92 N. Y. 224 ; Morgan v. Railway 
 Co., 95 Cal. 510, 29 Am. St. Rep. 143. 
 
 ' I,ouisville. etc., R. R. Co. v. Falvey, 
 104 lud. 409, 3 N. E. R. 389 ; Indiana 
 Car Co. V. Parker, 100 Ind. 181, p. 196 ; 
 Ward V. White, 86 Va. 212, 19 Am. St. 
 Rep. 883; Kan. Pac. R. R. Co. v. 
 Peavey, 29 Kan, 169 ; Western Union 
 Tel. Co. V. Broesche, 72 Tex. 654, 13 
 Am. St. Rep. 843; Cattle Co. v. 
 Mann, l.W U. S. 69 ; Gulf, etc., Ry. Co. 
 V. Redeker, 73 Tex. 10, 16 Am. St. 
 Rep. 887 ; Sheehy v. Street Ry. Co., 
 94 Mo. 574, 4 Am. St. Rep. 396 ; Cen- 
 tral Rd. Co. V. Smith, 76 Ga. 209, 2 
 Am. St. Rep. 84; I,ake Erie & West. 
 Rd. Co. V. Acres, 108 Ind. 548, 9 N, E. 
 453; South Covington & C. St. Ry. 
 Co., 84 Ky. 267, 1 S. W. 493, note; 
 Florida Railway Co. v. Webster, 25 
 Fla. 394. 
 
 * Meeks v. St. Paul, Minn. 66 N. W 
 960; Smith v. Railway Co., 23 OS. 10 
 Cribbett v. Mathers, 3 Dec. (Re.) 322 
 City of Denver v. Dunsmore, 7 Colo. 
 328; Stultz v. Railroad Co., 73 Wis. 
 147, 9 Am. St. Rep. 769; Donovan v. 
 Railway Co., 93 Wis. 373, 67 N W. 721 ; 
 Pratt v. Pioneer Press Co., 32 Minn. 
 217; Robinson v. Railroad Co., 9 Fed. 
 Rep 877; Brooklyn St. Ry. Co. v. 
 Kelley, 3 O. C. D. 393, 6 C. C. R. 155; 
 2 Wood Railway Law, p. 1226, note; 
 O'Counell v. Railway Co., 100 Mo. 432. 
 
 5 Waters v. Bristol, 26 Conn. 398; 
 Louisville South. Rd. Co. v. Minogue, 
 90 Ky. 369, 29 Am. St. Rep. 378. 
 
 «Tenn. & Coal Co. v. Roddy, 85 
 Tenn, 400 ; Morgan v. South. Pac. Co., 
 95 Cal. 510. 
 
 'Union Pac Ry. Co. v. Hause, 1 
 Wyo. 27 ; C, C , C. & St. Louis Ry. 
 v. Richerson, 10 O. C. D. 826. 
 
 ' Gale V. Railroad Co , 76 N. Y. 594 ; 
 Nicholson v. Railroad Co., 22 Conn. 
 74 ; Furnish v. Railway Co., 102 Mo. 
 438, 22 Am. St. Rep. 781; Morgan v. 
 Pac. Co., 95 Cal. 50, 29 Am. St. Rep. 
 143 ; Bond Hill v. Atkinson, 9 O. C, D. 
 185, 16 C. C. R. 470 ; Marvin v. Sager, 
 Ind., 44 N. E. 310 
 
5 '7 PROVINCE OF COURT AND JURY. § 311 
 
 brought to bear upon the jury, a new trial should be 
 granted by the court. 
 
 In the ease of Robbins v. Hudson River Rd. Co., 7 Bos. 
 (N. Y.) 1, an action was brought for damages for severe 
 personal injury, the jury awarded six cents. It was held 
 that the amount was insufficient, and a new trial was 
 g-ranted. 
 
 In Donovan v. Gay, 97 Mo. 440, the Supreme Court set 
 aside the judgment because the instructions of the court 
 were such as to force a compromise verdict in favor of 
 the defendant, and for that reason the verdict was mani- 
 festly inadequate and unjust. 
 
 in Caldwell v. Railroad Co., 41 La. Ann. 624, the plain- 
 tiff received a permanent injury to his ankle rendering 
 him a cripple for life. The jury returned a verdict for 
 §1,000, which the Supreme Court increased to $2,000 for 
 the reason that "we cannot avoid the conclusion that the 
 present verdict does not do justice." 
 
 In Smith v. Dittman, 11 N. Y. Supp. 269, where the 
 plaintiff, a healthy young woman, at the age of twenty, 
 . received internal injuries which fur three years had con- 
 fined her to her bed, and which were permanent; and 
 where she had expended about $3,000 for expenses, 
 besides loss of earnings of S4.00 per week, the jury hav- 
 ing returned a verdict for $1,000, the court said : " In 
 the vain quest for some cure or alleviation of her agonies, 
 she has already expended three times the amount of 
 money which the jury awarded her, as the compensation 
 for all the consequences of the injury. In the bloom of 
 maidenhood, she is prostrated by a blow which shatters 
 her body and mind; which bereaves her of all the joy and 
 pride of life; which denies her the felicities of the mar- 
 riage relation; which dooms her till death shall happily 
 release her to a bed of helpless anguish; and for this the 
 
 'Holyoke v. Railway Co., 48 N. H. 41 La. Ann. 624, 6 So. Rep. 217 ; SuIIi- 
 
 541 ; Nicholson v. Railroad Co., 22 van v. Railroad Co., 39 La. Ann. 800 ; 
 
 Conn. 74; Robbins v. Hudson River Donovan v. Gay, 97 Mo. 440 ; Chesa- 
 
 Co., 7 Bos. (N. Y) 1 ; Smith v. Ditt- peake & O. Rd. Co. v. Higgins, 85 
 
 man, 11 N. Y. Supp. 769 ; Kelley v. Tenn. 621 ; Bennett v. Hobro, 72 Cal. 
 
 Rochester, 15 N. Y. Supp. 29 ; Clapp 178 ; Townsend v. Briggs. 88 Cal. 230, 
 
 V. Railroad Co., 19 Barb. 461; Ward 26 Pac. 108; Whitney v. Milwaukee, 
 
 V. White, 86 Va. 212, 19 Am. St. Rep. 65 Wis. 409; Henderson v. Railroad 
 
 883; Randall v. Haywood, 5 Bing. Co., 52 Minn 479,55 N. W. Rep. 53. 
 N. C. 424; Caldwell v. Railroad Co., 
 
312 PROVINCE OP COURT AND JURY. 518 
 
 jury thought $1,000 an adequate indemnity. In my judg- 
 ment the verdict is shocking to reason and to the sense 
 of justice, and is unaccountable for except upon an 
 hypothesis which the law recognizes as a sufficient 
 ground to set it aside. " Citing McDonald v. Walter, 40 
 N. Y. 551, and Platz v. Cohoes, 8 Abb. N. C. 392. 
 
 In Wilson v. Morgan, 58 N. J. L. 426, 34 Atl. 752, it was 
 held that a new trial should be granted, in an action of tort, 
 if the verdict be for an unreasonably small amount, when 
 the damages are of definite ascertainment. The trial 
 court has discretionary power to grant, of its own motion, 
 a new trial in a personal injury case, on the ground that 
 the verdict was inadequate. ^ 
 
 The court should satisfy itself as to this inadequacy or 
 insufficiency before he exercises this authority.^ 
 
 While verdicts will not be disturbed ordinarily merely 
 for smallness of verdicts awarded, yet where the award 
 is so clearly inadequate, as in the case of a boy killed in 
 an elevator shaft, the verdict being only one cent dam- 
 ages, although the evidence was uncontradicted that a 
 net profit of $12.00 per month was received by the plain-, 
 tiff from his wages, and an actual outlay of $150 in 
 funeral expenses, the trial court will be sustained in 
 granting a new trial.' Where the verdict is only sufficient 
 to cover doctor's bills and loss of time, and allows nothing 
 for the suffering and disability of the plaintiff, who was 
 seriously and permanently injured, a new trial should be 
 granted.* 
 
 § 312. Itemized Verdict. The jury cannot be 
 required to itemize their verdict, nor assess a separate 
 amount for such element of damage, which enters into 
 and makes up the entire verdict.^ In Ohio & Miss. Rd. 
 Co. V. Judy, 120 Ind. 397, the court said. " The damages 
 were assessed for the injury sustained. As well might it 
 be required of the plaintiff in his complaint to set forth 
 
 iport Wayne & B. & I. Ry. Co. v. 3 Lee v. Publishers, etc., 55 Mo. 
 
 Donovan, 110 Mich. 173, 68 N. W. 115 ; App. 390, 1 Am. Neg Rep. 297 
 
 Carter v. Wells, Fargo & Co., 64 Fed. * Brown v. Foster, 1 N. Y App Div. 
 
 Rep. 1005 ; Hackett v. Pratt, 52 111. 578 ; McNeil v. Lyons, R. I 4 Am 
 
 App. 346 ; Galloway v. Weber, 55 111. Neg. Rep. 728, 40 Atl. 831 ; Palmer v. 
 
 !M^^ n . , T, , ^ .» LeaderPub. Co., 7Pa. Super. Ct. 594; 
 
 iiMaher v. Central Park Co., 67 N. Hallberg v. Brosseau, 64111. App. 520. 
 
 ^- °^- ' Union Pac. Rd. Co. v. Dunden, 37 
 
 Kan., 14 Pac. Rep. 501. 
 
5' 9 PROVINCE OF COURT AND JURY. §§ 313-314 
 
 the particulars of his claim for damages, alleging what 
 amount of damages he sustained by reason of mental 
 suflfenng, and what on account of physical suffering 
 This certainly cannot be required in a pleading, neither 
 can it be required of a jury. ' But in Atchison, T. & S F 
 Rd. Co. V. Lee, 1 Kan. 4 Am. Neg. Rep. 633, 54 Pac. Rep. 4 
 the jury were asked by defendant's counsel to find the 
 amount of damages for pain and suffering and for mental 
 suffering and distress; and they answered five hundred 
 dollars each. This was affirmed by the Supreme Court. ^ 
 
 § 313. Successive Verdicts. When an action has 
 been tried one or more times and the plaintiff each time 
 recovers a verdict, the court should allow it to stand and 
 refuse to interfere or set it aside except in au extreme 
 case, although it may be very doubtful whether the 
 injured person is entitled to recover. Especially is this 
 true if the action is of such a character and the questions 
 are of such a nature that the finding of the jury is neces- 
 sary and cannot be omitted, for a final determination and 
 disposition of the case.' 
 
 Under such conditions the court should refuse to grant 
 a new trial.* 
 
 § 314. Damages When Increased or Corrected. In 
 
 some states the court has the power given to it by the 
 statute to increase the verdict or amount of damages and 
 enter a judgment in accordance with such increase/ 
 
 The trial court also has the power to correct the ver- 
 dict to conform to the amount actually agreed upon by the 
 jury, when there was a mistake or error in announcing it. 
 The court may receive affidavits to show what the true 
 
 ' Shepard v. Pratt, 16 Kau. 209; " the same court shall not grant more 
 
 Woodruff V. Cook, 25 Barb. N. Y. 505, than one new trial on the weight of 
 
 1 Sutherland on Damages, 770. evidence against the same party in 
 
 ^Atchison, T. & S. F. Rd. Co. v. the same case." Sec. 5306. Laws of 
 
 Lamareaux, Kan. App. 43 Pac. Rep. 1898, Vol. 93, p. 217. 
 
 142. * Hudson v. Voight, 9 O. C. D. 35, 15 
 
 s Shaw V. Railroad Co., 8 Gray 45 ; C. C. R. 391. 
 
 Henderson v. Fox, S.'^ Ga. 233; Por- ^Donuellv. Sandford, 11 La. Ann. 
 
 ter V. Railroad Co., 76 Mo. 66, 36 Am. 645; Caldwell v. Railroad Co., 41 La. 
 
 Rep. 454; Atchison, T. & S. F. Rd. Ann.; Ohio River R. Co. v. Harness, 
 
 Co. V. Moore, 31 Kan. 197; Mo. Pac. 24 W. Va. 511; Washburn v. Railway 
 
 Ry. Co. v. Johnson, 53 Pac. 129. In Co., 59 Wis. 364; Selma,etc. Rd. Co. 
 
 Ohio it is provided by statute that v. Gammage, 63 Ga. 604. 
 
§ 315 
 
 PROVINCE OP COURT AND JURY. 
 
 520 
 
 verdict was, but not to inquire into the deliberations of 
 the jury in making up such verdict.' 
 
 But in Michigan it is ]ield that the affidavits of jurors 
 cannot be received to correct an error in the verdict 
 returned by them. ^ 
 
 § 315. Damages When Decreased. Remittitur. 
 
 Where the damages assessed by the jury are considered 
 to be excessive, -but not in a degree necessarily to imply 
 the influence of passion or prejudice, or where there is 
 no other prejudicial error in the trial of the case, the 
 court will allow the verdict to stand if the plaintiff will 
 enter a remittitur for the excess. Where the damages 
 are not fully sustained by the evidence, the court may 
 require the plaintiff to choose between a remittitur and 
 a new trial.* 
 
 The remission of a part of the judgment may be 
 directed by the trial or by the appellate court.* 
 
 1 Ivens' Appeal 33 Pa St. 237 ; Cohn 
 V. Sctieuer, 115 P,a. St., 170, 8 Atl. 421 
 Smith V. Melden, 107 Pa, St. 348 
 Miller v. Morgan, 143 Mass. 28 
 Burlingame v. Railroad Co., 23 Fed. 
 Rep. 707 ; Dalrymple v. Williams, 63 
 N. Y 361 ; Wertz v. Railroad Co., 30 
 Bull. (Ohio) 280; Sutliff v. Gilbert, 8 
 Ohio 405 ; Taylor v. Hunt, 6 O. C. D. 
 43I,9C. C. R. 421. 
 
 2 Parker v. Railway Co., 93 Mich. 
 607, 53 N. W. Rep. 834. 
 
 3C. H. V. & T. Ry. Co. v. Shannon, 
 2 O. C. D. 644, 4 C. C. R. 449 ; Sibila 
 V. Bahney, 34 O. S. 399, 410 ; Pendle- 
 ton St. Rd. Co. V. Rahmann, 22 O. S. 
 446; Railroad Co. v. Himrod Fur- 
 nace Co., 37 O. S. 434 ; Parker v. Rail- 
 way Co., 93 Mich. 607 ; ShuUz v. Rail- 
 way Co., 48 Wis. 375 ; Illinois Centr. 
 R. Co. V. Ebert, 74 111. 399; Van 
 Winter v. Henry Co., 61 Iowa 684; 
 Cointement v. Cropper, 41 t,a Ann. 
 303; Black v. Railway Co., 63 Am. 
 
 Dec. 586, 10 La Ann. 33; Central 
 Ry. Co. V. Crosby, 74 Ga. 737 ; Belk- 
 nap V. Railway Co., 49 N. H. 358; 
 Kennon v. Gilmer, 131 U. S. 22; 
 Railway Co. v. Harmon's Adm'r, 147 
 U. S. 571. This practice has become 
 so universally adopted that it is not 
 necessar3- to cite authorities at any 
 greater length. 
 
 < Pendleton St. Ry. Co. v. Rah- 
 mann, 22 O. S. 446; Crumv. Hadley, 48 
 N. H. 191 ; Bigelow v. Doolittle, 36 
 Me. 115; Toledo, etc., Rd. Co. v. 
 Beals, 50 111. 150; Stronger v. Hove, 
 41 Wis. 659; Detzur v. Brewing Co., 
 44 L. R. A. 500; Hanes v. Tiflfany, 25 
 O. S. 548, 554 ; Marietta Iron Works 
 V. Ivattimer, 25 O. S. 621 ; Bridge Co. 
 V. Mayer, 31 O. S. 317,328; Insurance 
 Co. V. Pottker, 33 O. S. 459 ; Sibila v. 
 Bahney, 33 O. S. 399; Kershaw v. 
 Snowdon, 36 O. S. 181, 184; Railway 
 Co. V. Himrod Furnace Co., 37 O. S. 
 434. 
 
INDEX, 
 
 References are to Sections. 
 Ability. 
 
 An element of damage in case of death 209 
 
 To acquire a more profitable employment admissible 58 
 
 Abusive Language. 
 
 In a railway station to a passenger may be an element of 
 
 damage 98, n 
 
 Accidents. 
 
 Presumption of negligence in case of 251 
 
 Inevitable and unexpected 252 
 
 Act of God. 
 
 Railroad companies are not liable for accidents arising 
 
 from 252 
 
 Action. 
 
 Injury to health may be a basis of action 65 
 
 Impairment or destruction of the prospects of marriage may 
 
 be cause of 64 
 
 Actions for two injuries admissible when a disability oc- 
 curred from each 63 
 
 Transitory, jurisdiction of courts 246 
 
 Limitation of damages to one, exception 275 
 
 Admiralty. 
 
 Proceedings in, in case of death, when maintainable 226 
 
 When not maintainable 225 
 
 Adult. 
 
 Loss of earning capacity an element of damage 53 
 
 Proof in case of death of an 262 
 
 Verdict for death of 228 
 
 Affections. 
 
 Are involved where telegrams are sent and received .... 116 
 
 Wound and injury to, is an element of damage for breach 
 
 of contract of marriage 123 
 
 Agent. 
 
 A telegraph company is, of sender and receiver 116 
 
 Alienation of Affections. 
 
 Exemplary damages recoverable for 193 
 
 Amendment. 
 
 Of ad damnum so as to increase damage is permissible 276 
 
522 INDEX. 
 
 Refereaces are to Sections. 
 Amputation. 
 
 Damages for future pain and sufeering for second amputa- 
 tion *^ 
 
 Annuity. 
 
 Loss of earning power is in the nature of an 59 
 
 The true basis of damages is the cost of an, in case of 
 
 death ^'^^ 
 
 Ankle. 
 
 Verdicts for injury to foot, toe, and • 82 
 
 Anxiety. 
 
 For the welfare of others is not an element of damage ... 137 
 
 Appbbhension of Bodily Injuby. 
 
 Is not an element of damage 95 
 
 Appoktionment. 
 
 Damages for loss of infant may be apportioned between 
 
 father and mother 2H 
 
 Arm. 
 
 Verdicts for , injury to 79 
 
 Arrest. 
 
 Exemplary damages recoverable for, unlawful 193 
 
 Artisans. 
 
 Loss of earning power, how shown 55 
 
 Assault. 
 
 Damages for, not confined to the actual injury 110 
 
 Of an employe upon a passenger on a railroad train, ground 
 
 for damages 98 
 
 Attempt by a conductor to kiss a female passenger while 
 
 riding in a car is an 98 
 
 Of woman, with intent to ravish, is ground for damages . . 98, n 
 
 Exemplary damages recoverable for 193 
 
 Verdict for malicious 85 
 
 Mental suffering caused by wrongful, is recoverable 110 
 
 Asthma. 
 
 Developed by injury may be shown 146 
 
 Attachment. 
 
 Damages for wrongful, is ground for recovery . , 114 
 
 Attorney. 
 
 How his value of time may be shown 36 
 
 Average earnings for five years previous to injury may be 
 
 shown to prove loss of time : 36 
 
 Average Earnings. 
 
 Average earnings may be shown when no fixed salary was 
 
 received 35 
 
INDEX. 523 
 
 References are to Sections. 
 
 Of an attorney for five years may be shown to prove value 
 
 of time og 
 
 In a regular employment, may be shown although otherwise 
 
 engaged when injured 57 
 
 Beneficiaries. 
 
 Who are, where death follows, defined 201 
 
 Bnxs Rendered. 
 
 When paid, are evidence of expenses 16 
 
 Bi.ind:«ess. 
 
 Not an element of damage by some authorities 95 
 
 B0DI1.Y Injury. 
 
 What is 96 
 
 Test of • ",',[', 96 
 
 Any physical effect of an accident is 96 
 
 Apprehension of, is not an element of damage 95 
 
 Damages for, may be recovered by infant 172 
 
 And mental suffering are damages recoverable by the wife. 157 
 
 And mental suffering of infant, not recoverable by parent . . 169 
 
 And mental suffering not recoverable by next of kin 198 
 
 Bodflt Pain and Suffering — See Physical Pain and Suftering. 
 
 Body. 
 
 Mutilation of, an element of damage 93 
 
 Brakesman. 
 
 Loss of time, how shown 36 
 
 Breach of Promise. 
 
 Exemplary damages recoverable for 193 
 
 Brights Disease. 
 
 Developed by the injury is an element of damage 142 
 
 Admissible to show effect on expectancy of life 60 
 
 Bbothee. 
 
 In action by, there must be proof of loss in case of death . . 213 
 
 Burden of Proof. 
 
 On the plaintiff to show loss of earning power 54 
 
 Business. 
 
 Loss of 30 
 
 Loss of time, how shown '^° 
 
 Loss of earning power, how shown 56 
 
 Past profits in business is admissible, when 36, 37 
 
 Profits in commercial business cannot be shown 36, 37 
 
 Persons engaged in an unlawful business cannot recover 
 
 for loss of time *^ 
 
 Butcher. 
 
 Loss of time of, how shown 36 
 
524 INDEX. 
 
 References are to Sections. 
 Cancbb. 
 
 Caused by the Injury is an element of damage 141 
 
 Bvidence of, how caused, admissible 1** 
 
 Canvasser. 
 
 Loss of time, how shown 
 
 Capacity. 
 
 Ability to acquire more profitable employment is admis- 
 sible ; • • ■ 
 
 se 
 
 5S 
 
 Cakpenter. 
 
 Loss of time shown by his earnings in his trade 36 
 
 Catarrh. 
 
 Developed by injury, may be shown 146 
 
 Cause of Action. 
 
 No two alike ^ 
 
 Causes of Injuries 3 
 
 Character. 
 
 An element of damage in case of death as a pecuniary loss 209 
 
 The, of the injured person Is not admissible 281 
 
 Chastity. 
 
 Reputation of injured for, is not admissible 281 
 
 Child^ — See Infant. 
 
 CHlLDyBEARlNG. 
 
 Made dangerous, is an element of damages 146 
 
 Children. 
 
 Evidence of number of, is admissible in case of death .... 209 
 
 Chronic Disease. 
 
 Developed by an injury an element of damage 141 
 
 Classes of Injured Persons 2 
 
 Classes of Damages. 
 
 Defined IS 
 
 Classes of. 
 
 Mental suffering caused by breach of contract of mar- 
 riage or alienation of husband or wife 90 
 
 Mental suffering caused by selling intoxicating liquors to 
 
 husband or father 90 
 
 When exemplary damages may be added to damages for 
 
 mental suffering 90 
 
 Cold Weather. 
 
 Railroad companies are not liable for accidents from exces- 
 sively 252 
 
INDEX. 
 
 References are to Sections. 
 
 525 
 
 Collateral Heibs. 
 
 Damages may be recovered by, in case of death ... 213 
 Must show an obligation to support or an enforcible inter- 
 
 ^^'^ 213 
 
 Collisions. 
 
 Presumption of negligence in case of 251 
 
 Commercial Business. 
 
 Profits of, cannot be shown 37 
 
 Common Caekiee. 
 
 Duty Imposed upon 3 
 
 Liable for disease developed by the injury 141 
 
 Liable for sickness caused by the injury , 141 
 
 May provide different cars for different races 101 
 
 Duty of, towards sick persons 101 
 
 No discrimination between races by 102 
 
 Common Law. 
 
 Growth of 8 
 
 Old rules of. must advance with civilization 116 
 
 Companionship. 
 
 Defined 152 
 
 What is meant by loss of 152 
 
 Husband may recover for loss of 152 
 
 Not recoverable for in Ohio 156 
 
 No recovery for loss of, at common law, by wife 159 
 
 Loss of, recoverable in Virginia 156 
 
 Loss of, may be recovered by wife by statute in many states 159 
 
 Loss of, not an element of damage in case of death 209 
 
 Loss of, of infant cannot be considered 211 
 
 Loss of, when considered in a pecuniary sense, is an ele- 
 ment of damage 214 
 
 Loss of, is not generally an element of damage 214 
 
 Loss of, of the deceased an element of damage in Utah, but 
 
 not mental suffering' 214 
 
 Compensation. 
 
 Mean damages 4 
 
 For every injury 8 
 
 For every wrong 8 
 
 Rule of, is fundamental 8 
 
 Rule of, is natural justice 8 
 
 Different questions 9 
 
 The measure of, how determined 9 
 
 How figured 9 
 
 Province of jury 9 
 
 Includes entire loss H 
 
 Should be fair and reasonable 11 
 
 For physical pain and suffering must be fair, just and con- 
 sistent 44 
 
 For physical pain and suffering is a recompense for injury 
 
 done, not In the sense of price or value 44 
 
 For loss of earning capacity as an element of damage may 
 
 be awarded ^^ 
 
526 INDEX. 
 
 I References are to Sections. 
 
 Compensatory Damagbs. 
 
 Mean substantial damages 13 
 
 Embrace the actual damages sustained with its conse- 
 quences 13 
 
 COMPBOMISE. 
 
 When fairly made is admissible 295 
 
 Evidence of, is not admissible when obtained by fraud or 
 
 duress 295 
 
 Offers or negotiations of, are not admissible 302 
 
 CONDUCTOKS. 
 
 In charge of trains quasi police officers 100 
 
 CONWEOTICUT. 
 
 Damages are recoverable for mental and physical suffering 
 
 in case of death 216 
 
 s 
 
 CONSOETIUM. 
 
 Defined 152 
 
 Means more than physical services 152 
 
 Damages for, not recoverable in Washington 152 
 
 Of wife, an element of damage 152 
 
 Loss of, may be recovered for by wife 159 
 
 Consumption. 
 
 Developed by injury, may be shown 146 
 
 Contributions. 
 
 Evidence of, is not admissible 300 
 
 Contributory Negligence. 
 
 Employment of physician protects against defense of con- 
 tributory negligence 27 
 
 Neglect to employ a physician when injured is contributory 
 
 negligence 27 
 
 By the wife is a defense 160 
 
 The doctrine of imputed, does not exist in Ohio 160 
 
 Of husband Is imputed to wife in Wisconsin and Vermont . . 160 
 Of wife is imputable to the husband, when he brings his 
 
 action jgO 
 
 Of husband is not imputed to the wife when she sues alone. . 160 
 Of wife imputable to husband on account of marital rela- 
 tion 160 
 
 Coroner's Inquest. 
 
 Evidence of the verdict of, is not admissible 294 
 
 Corporations. 
 
 Are liable for exemplary damages 191 
 
 Are liable for exemplary damages of acts of agents with- 
 in scope of authority 191 
 
 Some courts require ratification to hold, liable for ex- 
 emplary damages 191 
 
 Liable for exemplary damages without "ratification ' of 
 
 agent's act , 191 
 
 Liable for exemplary damages for tortuous acts' of agents ". '. 191 
 
 Not liable for exemplary damages unless the act was rati- 
 fied, as held by some courts 192 
 
Cost of Boakd. 
 
 INDEX. 527 
 
 References are to Sections. 
 
 Will not be deducted from earnings recoverable by parent. . 168 
 
 Evidence of, is not admissible 291 
 
 CoTJNSEL Fees. 
 
 May be given where exemplary damages are recoverable . . 189 
 
 Are not recoverable except in some states 299 
 
 COUKTS. 
 
 General powers and functions 8 
 
 Inherent power of 8 
 
 Duty to provide a remedy 8 
 
 Instruction of. for physical pain 44 
 
 Can only say that aamages should be reasonable 44 
 
 Must determine from the evidence whether exemplary dam- 
 ages are recoverable 186 
 
 Improper for, to indicate any amount of exemplary dam- 
 ages 187 
 
 The province and relation of, and jury defined 303 
 
 Province of the, is to apply the law to the facts 304 
 
 Must determine whether there is any negligence 304 
 
 Duty of, to submit question of negligence to jury 304 
 
 Duty of, to submit case to the jury, when 305 
 
 When different conclusions may be drawn, the court should 
 
 submit 305 
 
 Must refrain from expressing an opinion as to the amount 
 
 of damages 307 
 
 May set aside verdict in exercise of sound discretion 310 
 
 Should accept the last of successive verdicts as final. . . . 313 
 
 May remit a part of the verdict when excessive 315 
 
 Cbippue fob Life. 
 
 Caused by injury or wilful wrong, an element for dam- 
 ages 
 
 141 
 
 Criticism. 
 
 Caused by mutilation of body, impairment of mind, recover- 
 able 93 
 
 Cutting off a Sleepeb. — See Exemplary Damages. 
 
 Damages. 
 
 Meaning of ^ 
 
 Measured by payment of money 4 
 
 Syonymous with Anglo-Saxon word "Wer-gild" 4 
 
 Are unliquidated before judgment 4 
 
 Are liquidated after judgment * 
 
 Mean compensation or recompense for injury done 4 
 
 Judgment represents, meaning of 4 
 
 When judgment is res adjudicata * 
 
 Elements of ^ 
 
 Are determined by an impartial jury ^ » 
 
 Sources of 
 
 Motive of person causing injury 
 
 The result of direct negligence 
 
 The result of remote and concurrent conditions 
 
 Result of negligence of employe 
 
 What is the meaning of measure of '^'^ 
 
 10 
 10 
 10 
 10 
 10 
 
528 INDEX. 
 
 References are to Sections. 
 
 Damages — Continued. 
 
 Measure of, includes all the elements 11 
 
 Measure of includes entire loss 11 
 
 Measure of means one total sum 11 
 
 Should he reasonable 12 
 
 Should be fair 12 
 
 Classes of defined 13 
 
 Nominal, defined 13 
 
 Direct, defined 13 
 
 Special, defined 13 
 
 Exemplary, defined 13 
 
 Remote, defined 13 
 
 For loss of time 30 
 
 For Physical Pain and Suffering. 
 
 Are not measured by the price for which a volunteer would 
 
 endure the same 44 
 
 No fixed rule for measuring 44 
 
 Must be fair and reasonable ■ 44 
 
 Must be consistent with extent of injury 44 
 
 Each case determined by itself 44 
 
 Rest entirely within province of jury 44 
 
 Cannot be shown by opinion of witnesses 44 
 
 Cannot be considered as an independent item 44 
 
 Contra, in Kansas 44 
 
 Are compensation as a consequent result for the injury ... 44 
 
 Cannot be shown by opinion evidence 51 
 
 For Future Physical Pain and suffering. 
 
 May be recovered 45 
 
 Evidence sufficient to recover 46 
 
 Must be reasonably certain , 46 
 
 Not exemplary 48 
 
 Other cases. 
 
 Recovery for pain when death occurs after action is 
 
 brought, is dependent on statute 216 
 
 For loss of earning capacity an element of damages 53 
 
 For loss of earning capacity depend on age, business ability 
 
 and intelligence 53 
 
 Loss of earning capacity, no fixed rule to estimate 53 
 
 For loss of earning power are not discretionary with jury 
 
 irrespective of proof 56 
 
 For injury to health may be the basis of an action ........ 
 
 Recoverable when there is no intent to harm if injury is 
 
 done 
 
 For injury to mental faculties 
 
 For injury to head 
 
 For injury to face and sight 
 
 For injury to hearing 7I 
 
 For injury to spine or back 72 
 
 For total disability 73 
 
 For partial disability " 74 
 
 For injury to heart ' '. '. 75 
 
 For injury to fingers and thumb . . 76 
 
 For injury to hand 77 
 
 For injury to wrist 7g 
 
 65 
 65 
 
 69 
 70 
 
INDEX. 529 
 
 References are to Sections. 
 
 For injury to arm 79 
 
 For injury to thigh and hip 80 
 
 For loss of leg ] 81 
 
 For injury to ankle, foot and toes 82 
 
 For injury to health 83 
 
 For unlawfully ejecting passengers from trains 84 
 
 For kick of a vicious horse 85 
 
 For mental suffering are allowed when predicated on a 
 
 right of action 86 
 
 For future mental suffering, when reasonably certain, are 
 
 recoverable 89 
 
 For mental suffering, no fixed rule of measurement 87 
 
 For mental suffering need not be pleaded 94 
 
 For mental suffering based on physical pain and injury . . 91 
 For wounded feelings when injury is inflicted in a public 
 
 place without cause 97 
 
 For nervous shock, peril or fright may be recoverable .... 92 
 Mere fright, unaccompanied by any physical injury, not 
 
 the subject of damages 92 
 
 For attempt by conductor to kiss female passenger 98 
 
 Measure of, for insult 103 
 
 For negligent transmission and delivery of telegrams .... 116 
 
 Caused by false imprisonment Ill 
 
 For mental suffering caused by libel or slander 106 
 
 Caused by wrongful assault 110 
 
 For malicious prosecution 112 
 
 For wrongful attachment 114 
 
 For seduction 115 
 
 For mental suffering caused by breach of contract of mar- 
 riage 122 
 
 For selling intoxicating liquors dependent on a cause of 
 
 action 132 
 
 For mental suffering alone not recoverable 137 
 
 Occasioned from disease 141 
 
 Occasioned by sickness 141 
 
 For disease or sickness 141 
 
 For nervous prostration 141 
 
 For cancer caused by injury 141 
 
 Are recoverable by a boy made a cripple 141 
 
 Amount of, recoverable for disease; no general rule 146 
 
 Miscarriage is ground for 146 
 
 Child-bearing made dangerous is an element of 146 
 
 Limitation of, for disease, no rule 148 
 
 Future effect of the injury 149 
 
 Verdicts recovered for disease developed 151 
 
 Recoverable by wife for injuries sustained by her 157 
 
 For diminished earning capacity by infant 172 
 
 For bodily pain and mental suffering may be recovered by 
 
 infant 
 
 172 
 
 For death by wrongful act; common law rule 198 
 
 Elements of, for death are not limited • ■ • • ■ • 
 
 Prospective, are recoverable in case of death by next 01 
 
 J^jjJ^ 
 
 For death' include physical, mental and moral training. . . . 
 
 For death of child ■ ; ' ' 
 
 Collateral heirs must show an obligation to support or an 
 enforcible interest 
 
 34 
 
 205 
 
 208 
 209 
 211 
 
 213 
 
530 INDEX. 
 
 Eeferences are to Sections. 
 
 Other cases — Continued.- 
 
 Nominal damages recoverable in case of death 215 
 
 Recoverable for mental and physical suffering is an inde- 
 pendent action in case of death 216 
 
 Recoverable for mental and physical suffering are distinct 
 
 from right of action for beneficiaries 216 
 
 Are recoverable for mental suffering caused by negligent de- 
 livery of telegram, p. 231 116 
 
 Where damages are inadequate verdict should be set aside . . 311 
 
 May be increased by the court, in Louisiana 314 
 
 Death. 
 
 Neglect to employ or follow advice of physician does not 
 
 prevent recovery 27 
 
 Recovery for pain when, occurs after action is brought de- 
 pendent on statute 50 
 
 Mortality tables inadmissible where action is for death of 
 
 child under five years 60 
 
 By Wrongful Act. 
 
 Exemplary damages recoverable for, when authorized by 
 
 statute 195 
 
 Right of action abated ai common law upon death of injured 
 
 person 198 
 
 Cause of action did not survive to next of kin 198 
 
 Pending action abative upon death of plaintiff 198 
 
 Lord Campbell's act of survivorship of action 198 
 
 Lord Campbell's act model for similar statute 198 
 
 Cause of action survives by statute 199 
 
 Early Massachusetts act 198 
 
 Statute provides for damages to next of kin 198 
 
 Damages confined to pecuniary loss of next of Kin 198 
 
 Bodily pain and mental suffering not recoverable 198 
 
 Remedy dependent on locus 199 
 
 Without, a statute there is no remedy 199 
 
 Damages recoverable is the pecuniary loss 200 
 
 Who are next of kin or beneficiaries 201 
 
 Survival of the right of the beneficiary ^. 202 
 
 Pecuniary Loss. 
 
 Sole measure of damages 203 
 
 Must be established by evidence 203 
 
 There can be no recovery without 203 
 
 Measure of Damages. 
 
 Defined 204 
 
 True measure of damages without solatium for mental 
 
 grief 203 
 
 Power of decedent to earn money 204 
 
 " ' ■ ' 204 
 
 Loss of care, support and maintenance 
 Elements of Damages 
 Are not limited . 
 
 Include intellectual culture and moral training 205 
 
 May include expenses, loss of time, and physical and mental 
 
 pain, in New Hampshire ". 205 
 
 General rules for measuring damages 206 
 
 205 
 
INDEX. 53 1 
 
 References are to Sections. 
 
 How the jury should reach a conclusion .' 206 
 
 Health, intelligence, habits and ability 206 
 
 Ability to conduct and manage a business 206 
 
 Reasonable expectancy of life of the deceased 206 
 
 Degree of relationship , 206 
 
 No fixed rule for measuring the value of a life 206, 207 
 
 Mortality tables not conclusive, but helpful 206 
 
 Jury cannot consider physical pain suffered by deceased . . . 206 
 Jury cannot consider wounded feelings of surviving rela- 
 tives 206 
 
 Earning capacity of deceased may be considered 207 
 
 Assessment of damages does not admit of fixed rules 207 
 
 True basis of, is cost of annuity 207 
 
 Amount of left to sound discretion of jury 207 
 
 Prospective damages recoverable by next of kin 208 
 
 Recovery for death of husband or parent 209 
 
 Amount recoverable for husband or parent dependent on 
 
 age, ability and industry 209 
 
 Include daily care and attention 209 
 
 Not limited to the extent of wages 209 
 
 Include physical, moral and mental training 209 
 
 Evidence of number of children admissible 209 
 
 Loss of companionship an element of 209 
 
 Proof of loss of moral and physical training 209 
 
 Construction of the word "pecuniary" 209 
 
 In case of infant, loss restricted to minority 209 
 
 In case of death of infant, loss restricted to pecuniary loss, 
 
 in Ohio 209 
 
 Recovery for loss of wife 210 
 
 Elements of, for loss of wife 210 
 
 Husband has no cause of action in Tennessee for death of 
 
 wife 210 
 
 Of Infant. 
 
 Right of action dependent on statute 211 
 
 Loss of services during minority is the measure of dam- 
 
 A\.±. 
 
 From loss of services of, reasonable expenses should be de- 
 ducted .■■••• 211 
 
 Right of action continues during minority ^li 
 
 Law implies pecuniary loss in case of death ^ii 
 
 Loss of services need not be pr,oved • ^^^ 
 
 Parent may show pecuniary loss from expectation of ser- 
 vices after majority • ■ 
 
 Expenses of support must be deducted from value of ser- ^^^ 
 
 vices of infant •. • • • • 
 
 Where infant has been emancipated substantial damages 
 
 may be recovered ■.■■,•■■„ 'J \ 
 
 Value of services of, dependent on physical and mental ^^^ 
 
 conditions '' ",\' \." , -l,' ' '„! ' ' ' " on 
 
 Construction of the word "pecuniary" should be liberal ... ^11 
 
 Value of services dependent on age and earning capacity. . /ii 
 
 Damages for loss of, limited to expectancy of parent s life ^11 
 
 Actual pecuniary benefit for loss of an adult child must be ^^^ 
 
 proved • 2ii 
 
 Marriage of survivor cannot be shown 
 
 Companionship of, cannot be shown 
 
 Mental suffering of parent cannot be shown 
 
532 INDB3X. 
 
 References are to Sections. 
 
 Of Infant — Continued. 
 
 Mental suffering may be recovered by parent for delay 
 
 in sending telegram 212 
 
 Independent action necessary to recover damages for delay 
 
 in sending telegram 212 
 
 Damages may be recovered by collateral heirs - 213 
 
 There must be proof of loss in action by brother or sister . . 213 
 No damages are recoverable for solatium for wounded feel- 
 ings 214 
 
 Loss of companionship and society not generally an ele- 
 ment of damage 214 
 
 Loss of companionship and society an element of damage 
 
 In Utah 214 
 
 Loss of companionship, if considered in a pecuniary sense, 
 
 is an element of damage 214 
 
 Kind disposition of the deceased may be shown 214 
 
 Nominal damages may be recovered in absence of pecuniary 
 
 injury to beneficiaries 215 
 
 Damages recoverable for mental and physical suffering is 
 
 an independent action j 216 
 
 Damages recoverable for mental and physical suHering be- 
 long to estate of decedent 216 
 
 Damages recoverable for mental and physical suffering are 
 
 distributed according to law 216 
 
 Damages for mental and physical suffering are fixed by 
 
 statute in several states 216 
 
 Two causes of action are given by statute in some states . . 216 
 
 Proof of physical pain and suffering must be shown 217 
 
 Physical pain not an element when, is instantaneous 217 
 
 Proof of pain and suffering unnecessary when body is muti- 
 lated 217 
 
 No damages are recoverable for physical pain when de- 
 ceased was rendered unconscious 217 
 
 Medical expenses recoverable in some states 218 
 
 Medical expenses not recoverable without proof that ac- 
 count is filed with executor 218 
 
 Funeral expenses are not recoverable unless paid by bene- 
 ficiaries 219 
 
 Interest on damages reckoned from date of verdict 220 
 
 In some states interest is computed from date of death. ..'. 220 
 
 Limitation of amount recoverable fixed by statute in some 
 
 states 221 
 
 Joinder of causes of action for pecuniary loss and for rneii- 
 
 tal and physical suffering 222 
 
 Statute of limitation runs against the cause of action 223 
 
 The locus of injury determines the distribution of the judg- 
 ment 224 
 
 Proceeding in admiralty when not maintainable ... 225 
 
 Proceedings in admiralty when maintainable 
 
 Damages. 
 
 226 
 
 For death of minor 
 
 For death of adults ...\ 
 
 For death of husband and wife 
 
 When not excessive 
 
 Recoverable for death of next of kin 231 
 
 Which are inadequate 232 
 
 For suffering of deceased 233 
 
 227 
 228 
 229 
 230 
 
INDEX. 533 
 
 Beferences are to Sections. 
 
 Recovery for pecuniary loss is a bar when fixed by statute . . 222 
 
 Recovery for pecuniary loss is not a bar for damages for 
 
 physical pain and suffering 222 
 
 Any fact or circumstance not within res gestae not admis- 
 sive , 257 
 
 Procedure in personam where death follows 247 
 
 Evidence of amount of insurance carried by decedent not 
 
 admissible 293 
 
 Debts op Decedent. 
 
 Evidence of, not admissible 289 
 
 Declarations. 
 
 Limitation of time within which are admissible 255 
 
 Of master or servant when part of res gestae are admis- 
 sible 255 
 
 No iron clad rule as to the time within which declarations 
 
 are admissible 255 
 
 Limitation of time is flexible and governed by the facts of 
 
 each case 255 
 
 Showing cause of accident and description of injury admis- 
 sible 255 
 
 Must sustain some causal relation to the accident and in- 
 jury 255 
 
 May be separated from the causal act by lapse of time .... 255 
 
 Decoeatoe. 
 
 Loss of time of, how shown 36 
 
 Defective Appliances. 
 
 Presumption of negligence in case of accidents from .... 251 
 
 DEFINITIO:?fS. 
 
 Compensatory damages 13 
 
 Substantial damages 13 
 
 Nominal damages 13 
 
 Direct damages 13 
 
 Remote damages 13 
 
 Special damages 13 
 
 Exemplary damages 13 
 
 Elements of damages 14 
 
 Expenses 
 Loss of time 
 
 Destination. 
 
 Carrying passenger beyond the station by which injuries 
 resulted 
 
 Diabetes. 
 
 Developed by injury 
 
 15 
 30 
 
 Diminished earning capacity 53 
 
 Debailment. 
 
 Presumption of negligence in case of 252 
 
 Deseetion. 
 
 Of husband entitles the wife to sue alone 158 
 
 92 
 
 146 
 
534 INDEX. 
 
 Hefereaces are to Sections. 
 Dmobams. 
 
 Of the locus in quo of the Injury admissible 278 
 
 DiKECT Damages. 
 
 Are the natural result of the wrongful act 13 
 
 Disability. 
 
 Total or partial, caused by an injured 53 
 
 Disability must be reasonably certain 56 
 
 Increasing disability may be shown 56 
 
 Total or partial disability may be shown 56 
 
 Jury may consider resultant effect of the injuries 56 
 
 From two injuries is the basis for separate actions 63 
 
 Verdicts for total 73 
 
 Verdicts for partial , 74 
 
 Disappointment. 
 
 An element of damage for breach of contract of mairriage . . 123 
 
 Difficulties. 
 
 Necessary g 
 
 DiSFIGUBEMBNT OF FaCB. 
 
 An element of damages 93 
 
 Not an element of damage in Illinois 93 
 
 Discretion. 
 
 Court may set aside verdict in exercise of sound 310 
 
 It is a, with the court to require physical examination dur- 
 ing trial 273 
 
 Disceimination. 
 
 Between races a ground for damages 102 
 
 Measure of damages for 103 
 
 Disposition. 
 
 Kind, of the husband may be shown 214 
 
 Distribution. 
 
 Of judgment in case of death, is governed by locus of in- 
 
 i^'^y 224 
 
 Diminished Capacity. 
 
 Cannot recover for loss of time and loss of wages. . . ; 41 
 
 Diminished Earning Capacity. 
 
 An element of damage 
 
 Defined ...\..[ 
 
 Means loss of earning power 
 
 Amount of loss depends upon conditioia's, of ' age ' exnerl 
 lence, intelligence and ability 
 
 In an infant, limited to loss after majority oa 
 
 In an infant loss depends upon facts of each injury 53 
 
 In an infant means inability to learn or acquire a 'profes- 
 sion, trade, or business 
 
 In an adult means loss of earning power or 'incapacity to 
 work at occupation 
 
 May increase or decrease in the future 
 
 53 
 53 
 53 
 
 53 
 53 
 
 53 
 
 53 
 53 
 
INDEX. 535 
 
 References are to Sections. 
 
 Means the difference in the earning capacity, or worth to 
 
 his business 53 
 
 It Is the effect of the injury upon the person to worlc or 
 
 earn money 53 
 
 May be a partial or a total disability 53 
 
 Means more for a young than an old person 53 
 
 No fixed rule to estimate damages permanent to the injured 
 
 person 53 
 
 Previous physical condition and ability to work, and effect 
 
 of injury thereon must be shown 54 
 
 No direct and conclusive evidence can be given 54 
 
 Loss of earning must not be left to conjecture, without any 
 
 proper data 54 
 
 Loss of earning power shown by impairment of earning ca- 
 pacity 54 
 
 Burden of proof on the plaintiff 54 
 
 Proof of loss of earning power 54 
 
 Loss of earning of power of professional persons, how 
 
 shown 55 
 
 The amount of the loss is a question for the jury 55 
 
 The amount of wages received as injury is not an absolute 
 
 test 55 
 
 General rule is the difference in earning capacity of the in- 
 jured person 55 
 
 Loss of earning involves the value of labor, physical or in- 
 tellectual 55 
 
 Means compensation for damages caused by injury 56 
 
 Evidence off the earning capacity before and after injury. . 56 
 
 Growing years, infirmities of age may be shown 56 
 
 Loss of impaii'ment of mental faculties and incapacity to in- 
 crease income may be shown 56 
 
 Loss of earning shown by extent of business, health, apti- 
 tude and habits of industry 56 
 
 Loss of eyesight caused by injury 56 
 
 Total or partial disability 53, 56 
 
 Future damages not merely discretionary 56 
 
 Absolute certainty of proof of loss of earning power not 
 
 required 56 
 
 Where injuries are not permanent, mortality tables not ad- 
 missible ^0 
 
 Mortality tables, admissible for what purpose 60 
 
 Temporary employment when injured may not be test of 
 
 earning power 57 
 
 No damages can be awarded where earning power is same 
 
 after injury 57 
 
 Impaired capacity to work in other employments 57 
 
 Earnings in another employment since the injury 57 
 
 Acquiring capacity for more profitable employment in fu- 
 ture • : ■ ^^ 
 
 Promotion not admissible to show injured person was in 
 
 line of ■ ;.•;•;.•• ^^ 
 
 Sum of money to be awarded, in case of total or partial dis- 
 ability, not a perpetuity • • ■ •■••■■ ■■;••:.■; ^^ 
 
 The amount, in case of permanent disability, is not the dif- 
 ference in sum of earnings 59 
 
 Damages are in the nature of an annuity 59 
 
536 INDEX. 
 
 References are to Sections. 
 
 Loss of Earning Power. 
 
 General rule for computing illustrations 59 
 
 In case a total disability is the present worth of total earn- 
 ings 59 
 
 Is not a perpetuity 59 
 
 Is in the nature of an annuity 59 
 
 How computed 59 
 
 Value of the earning power not determined by expert testi- 
 mony 61 
 
 Loss of profits involving the labor of others inadmissible . . 62 
 
 Two actions may be maintained for two separate injuries. . 63 
 
 Permanent injury may be the basis of an action 65 
 
 May be recovered by wife when doing business for herself. . 157 
 
 Is an element of damage recoverable by infant 172 
 
 Disease. 
 
 Developed, is an element of damage 141 
 
 Must be the proximate cause of the injury 141 
 
 Germs of, developed by the injury 141 
 
 Tendency to, is no defense 142 
 
 Principle on which recovery is had 143 
 
 Evidence of, how caused, admissible 144 
 
 Predisposition to existing, does not prevent recovery 145 
 
 Recovery for additional Injury to existing 145 
 
 Recovery retarded by, may be shown 145 
 
 Latent, developed, an element of damage 146 
 
 Ignorance of existing, no defense 146 
 
 Amount of damages, a question for the jury .• 147, 148 
 
 No general rule for the recovery of damages for, developed . 147^ 148 
 
 Future effect of injury is recoverable 149 
 
 • Earning capacity diminished by 149 
 
 All questions of fact for jury 150 
 
 Verdicts recovered for, developed by injury 151 
 
 Domestics. 
 
 Loss of earning power, how shown 56 
 
 Double Remedy. 
 
 Plaintiff not entitled to recover for loss of time and dimin- 
 ished capacity 41 
 
 Donation. 
 
 Offers of, are not admissible 30i 
 
 Druggist. 
 
 Cannot defend against husband for wife's services on ac- 
 count of opium habit g ^^2 
 
 Dutt. 
 
 Imposed by law 3 
 
 Imposed by municipal ordinance 4 
 
 Imposed upon common carrier 3 
 
 Imposed upon master ,, 
 
 Imposed by statute [ o 
 
 Of Injured, to employ a physician 27 
 
 Infraction of ground for recovery for mental' suffering 
 
 caused thereby ^ jj_ 
 
INDEX. 537 
 
 References are to Sections. 
 Dying Declakations. 
 
 Evidence of the, of the decedent is not admissible 290 
 
 May be admissible to show cause of injury, exception .... 290 
 
 Eabnings. 
 
 Loss of 30 
 
 Earning Average. 
 
 May be shown when no fixed salary was received 35 
 
 Earning Capacity — See DiminishBd Earning Capacity. 
 
 When earnings are the same 57 
 
 Of an attorney for five years to prove value of time lost. ... 3S 
 Average earnings in his regular occupation, although other- 
 wise engaged when injured 57 
 
 Without deducting support are recoverable by parent 167 
 
 Without deducting cost of board of infant are recoverable 
 
 by parent 168 
 
 Loss of prospective, may be recovered, if due to diminished 
 
 capacity 176 
 
 Loss of prospective, not necessary to be pleaded 176 
 
 Infant may recover for earnings lost during minority .... 179 
 
 EABTHQrAKES. 
 
 Railroad companies not liable for accidents arising from. . 252 
 
 Ejection of Passenger. 
 
 No ground for exemplary damages when done in good faith, 
 
 pursuant to rules 192 
 
 Electeicity. 
 
 Use of, cause of accident 1 
 
 Elements of Damages. 
 
 Defined 1* 
 
 All expenses and disbursements incurred to effect a cure . . 14 
 
 Value of time lost 14 
 
 Physical pain and suffering i* 
 
 Diminished capacity to pursue trade, business or profession. 14 
 
 Damages for mental suffering 1* 
 
 For sickness or disease, caused or developed 14 
 
 For loss of any service, society of solatium in case of hus- 
 band or wife • ■ ^^ 
 
 For loss of any care, support, education, culture and moral 
 
 training of parent • • • ■ 
 
 Pecuniary loss caused to beneficiaries by death by wrong- 
 ful act .■ — : ;, ■ 4. ■ ■ ■*■ 
 
 All lawful and reasonable expenses paid or incurred to ef- 
 fect a cure 
 
 Employment of Servants. 
 
 Expenses for, about the house ■ 
 
 Expenses incurred about the business of injured person. . . 
 
 Employment of Physician. 
 
 A question for jury 
 
 14 
 
 14 
 15 
 
 26 
 
 26 
 
 27 
 
538 INDEX. 
 
 References are to Sections. 
 Employes. 
 
 Extra expense for help in business recoverable 36 
 
 In charge of train, quasi police officers 100 
 
 General reputation of 277 
 
 Employment. 
 
 Acquiring capacity for more profitable business in future . . 58 
 
 England. 
 
 Nominal damages are not recoverable when no pecuniary 
 
 injury is shown ' 215 
 
 Epileptic Pits. 
 
 Developed by injury 146 
 
 Eeysipblas.' 
 
 Developed by injury 146 
 
 Evidence. 
 
 No opinion evidence admissible as to amount of damages for 
 
 physical pain and suffering 44 
 
 What is sufficient to recover for future pain and suffering. 46 
 
 Proof of pain shown by nature and extent of injury 49 
 
 Of experts inadmissible to show amount of damages for 
 
 physical pain and suffering 51 
 
 Exclamations of Pain Divided into Three Classes. 
 
 Exclamations known as res gestae 52 
 
 Exclamations made to attending physician 52 
 
 Exclamations of present pain 52 
 
 Exclamations of pain, exception to the rule, when not ad- 
 missible 52 
 
 Exclamations of pain may be testified to by attending 
 
 physician 52 
 
 Exclamations of present pain may be shown by persons 
 
 hearing the same 52 
 
 Loss of Power. 
 
 There must be proof of loss of earning power 54 
 
 Loss of earning power shown by earning capacity before 
 
 and after injury 54 
 
 In awarding damages for diminished capacity, infirmities 
 
 of age, mental impairment and incapacity to increase 
 
 income may be considered 56 
 
 Occupation and rank may be shown in estimating award for 
 
 loss of earning power 5g 
 
 Increasing disability may be shown '. 56 
 
 Total or partial disability may be shown 56 
 
 Absolute certainty not required to prove loss of earning 
 
 power * gg 
 
 Disability must be reasonably certain 56 
 
 Other Losses from DisaMlity. 
 
 Loss of interest in partnership, caused by dissolution on 
 
 account of injury eg 
 
 Earnings in another employment since the injury 57 
 
 Impaired capacity to work in other occupations " " 57 
 
 Loss of eyesight caused by injury rg 
 
INDEX. 539 
 
 References are to Sections. 
 
 Inadmissible to show injured person was in line of pro- 
 motion 58 
 
 Acquiring capacity for more profitable employment in the 
 
 future 58 
 
 Admissible to show contract for increase of salary 58 
 
 Mortality tables, when admissible 60 
 
 Mortality tables not conclusive 60 
 
 Mortality tables inadmissible without proof of value of 
 
 earning capacity 60 
 
 Loss of earning power not determined by expert 61 
 
 Net proceeds per month from partnership business 62 
 
 Damages for future mental suffering when reasonably cer- 
 tain 89 
 
 Of loss of society of wife need not be positive 154 
 
 Of expenses to effect a cure of wife 154 
 
 General suggestions 250 
 
 Negligence, presumption of 251 
 
 Showing accidents arising from explosions, collisions, de- 
 fective appliances 251 
 
 Essential elements of proof 253 
 
 Duty, neglect, accident and injury as proximate cause .... 253 
 
 Precedent negligence is not admissible, when 254 
 
 Fundamental rules as to its admissibility 255 
 
 Limitation of time within which declarations are admis- 
 sible 255 
 
 Essential Evidence. 
 
 The proof must be germain 255 
 
 Showing effect of injury 255 
 
 Declarations of master or servant illustrative of injury . . 255 
 Declarations must sustain some causal relation to the ac- 
 cident and injury 255 
 
 Declarations may be separated from the causal act by some 
 
 lapse of time 255 
 
 Of similar accidents to other persons collateral and inadmis- 
 sible 255 
 
 But facts which show and establish negligence in the per- 
 formance of duty admissible 255 
 
 Partial or total disability must be shown 255 
 
 Partial or total disability may be shown by diminished 
 
 earning capacity 255 
 
 In General. 
 
 General loss of earning capacity, how shown 256 
 
 Declarations must be part of res gestae 255 
 
 What is and what is not res gestae 257 
 
 Any fact or circumstance not within res gestae 257 
 
 Of the plaintiff as to the facts 
 
 Plaintiff may show the injured part • ■ 
 
 Of unskilled witnesses admissible of facts within their 
 
 own knowledge 
 
 Of physician 
 
 As to future medical services 
 
 Unnecessary when the body is mutilated ^bl 
 
 In case of death of adults 
 
 In case of death of infants 
 
 Marriage of surviving husband or wife , 
 
 Not necessary to establish facts beyond a reasonable doubt. 265 
 
 258 
 258 
 
 259 
 260 
 260 
 
 262 
 263 
 264 
 
540 INDEX. 
 
 References are to Sections. 
 
 In General — Continued. 
 
 Of indebtedness of deceased 266 
 
 Of special damages 267 
 
 Of loss of partnership business 268 
 
 Of loss of literary emoluments 269 
 
 Exhibition of injured parts 271 
 
 Surgical examination of injured person 272 
 
 Of the injury on mind and health 274 
 
 Of the general reputation of employes 277 
 
 Of the locus in quo injury by photograph and diagrams . . 278 
 
 Classes of Questions. 
 
 Character of injured person 281 
 
 Reputation of injured person 281 
 
 Habits of injured person on former occasions 282 
 
 Of prior injuries 282 
 
 Of wealth or poverty of the parties 284 
 
 Of wealth admissible where exemplary damages are re- 
 coverable 285 
 
 Of wealth or poverty admissible where pecuniary loss has 
 
 been sustained 286 
 
 Of number of family 287 
 
 Of intemperate habits 288 
 
 Of the debts of decedent 289 
 
 Of dying declarations of decedent 290 
 
 Of tendency to disease 292 
 
 Of amount of insurance carried by decedent 293 
 
 Of verdicts of coroner's inquest 294 
 
 Of release or compromise when and when not admissible. . 295 
 
 Of counsel fees not recoverable except in some states .... 299 
 
 Of contributions 300 
 
 Of offers of donation 301 
 
 Of offers or negotiations of compromise 302 
 
 SuflBcient in law and in fact to support negligence 304 
 
 Evidence Opinion. 
 
 Of the value of time lost 39 
 
 Eviction op Passengee. 
 
 Exemplary damages recoverable for wrongful, from a train . 193 
 
 Exclamations of Pain. 
 
 Divided into three classes 52 
 
 Admissible not as hearsay but as the natural expressions 
 
 of suffering 52 
 
 Not admissible when made to a physician when examined 
 
 for the purpose of testimony at a trial 52 
 
 Statements made to physician indicating symptoms, when 
 
 examined for trial 52 
 
 Exceptions to the rule when not admissible 52 
 
 May be testified to by attending physician 52 
 
 Of present pain may be shown by persons hearing same . . 52 
 
 Bxemplabt Damages. 
 
 Defined jg jgg 
 
 Allowed in actions for libel, slander, malicious prosecu- 
 tion and breach of promise 13 
 
INDEX. 54 1 
 
 References are to Sections. 
 
 Compensation for future pain and suffering is not exem- 
 
 „ Plary -. 13 
 
 Recoverable for selling intoxicating liquors 135 
 
 General principles governing same 183 
 
 Inflicted as a punishment 183 
 
 Recoverable where wrongdoer acted from malice or wicked 
 
 motives ]^g3 
 
 Recoverable when act was wantonly or recklessly done ... 183 
 Recoverable where there was an evident disregard of rights 
 
 of others 183 
 
 Synonymous with punitive or vindicative damages 183 
 
 Recoverable for evidence or intentional wrong done 183 
 
 Recoverable for oppression outrage, or wickedness, in the 
 
 act 183 
 
 Recoverable where the negligence was without palliation 
 
 or excuse 183 
 
 Sometimes called "added" damages 183 
 
 Recoverable, though actual malice is not proved 183 
 
 Recoverable for an invasion of personal rights 183 
 
 Recoverable where the act is a reckless disregard of social 
 
 and civil rights 183 
 
 Recoverable though the act is not punishable by criminal 
 
 law 183 
 
 Not recoverable for mere negligence 183 
 
 Not recoverable in Washington 183 
 
 Sometimes called punitive damages 183 
 
 Recoverable for an unlawful arrest 183 
 
 Recoverable for shame and humiliation caused by false im- 
 prisonment '. 183 
 
 Must be proved 184 
 
 Recoverable when only nominal damages sustained,QMaere . 184 
 Where, are recoverable, evidence of defendant's wealth ad- 
 missible 184 
 
 Where, are recoverable, poverty of plaintiff may be shown. 184 
 
 Poverty of defendant admissible to mitigate 184 
 
 Should be pleaded 185 
 
 Proper allegations for recovery of 185 
 
 Province of jury 186 
 
 Amount of, rests with the jury 183, 186 
 
 Facts which jury should determine 186 
 
 Jury should determine negligence, compensatory damages 
 
 and exemplary damages 186 
 
 Rest with the discretion of jury 186, 187 
 
 Whether evidence warrants recovery of, is for the court . . 186 
 
 Amount recoverable rests entirely with jury 187 
 
 Improper for court to indicate any amount 187 
 
 No fixed rute for measurement 187 
 
 Should be commensurate with nature of offense 187 
 
 Verdict whether excessive or inadequate will not generally 
 
 be disturbed 188 
 
 Verdict, the result of passion, prejudice or corruption 188 
 
 Verdict excessively unreasonable 188 
 
 Not recoverable where evidence fails to show any necessary 
 
 elements for verdict 188 
 
 Verdict will be set aside to prevent injustice 188 
 
 "Smart money" not recoverable in addition to 188 
 
 Recoverable where evidence shows fraud or insult 188 
 
542 INDEX. 
 
 References are to Sections. 
 
 ExEMPLAEY Damages — Continued. 
 
 Recoverable even if defendant had been punished crim- 
 inally 188 
 
 Counsel fees may be given where, are recoverable 189 
 
 Legislature may fix a limitation of amount recoverable for 
 
 gross negligence 190 
 
 Corporations. 
 
 Corporations liable for 191 
 
 Corporations liable for, without ratification of acts of agent. 191 
 
 Recoverable for reckless indifference of the rights of 
 
 others 191 
 
 Recoverable for refusal to sell ticket and check a trunk at 
 
 regular station -. 191 
 
 Recoverable for refusal to^top at station in disregard of 
 
 statutory duty 191 
 
 Corporations are liable for, if acts of agents are within 
 
 scope of authority 191 
 
 Recoverable for reckless conduct of servants in charge of 
 
 train 191 
 
 Recoverable for using indecent and insulting language to 
 
 lady passenger 191 
 
 Recoverable against, for disturbance of the peace 191 
 
 Recoverable for gross negligence in repairing track of rail- 
 road 191 
 
 Some jurisdictions deny the right for, against corporations. 192 
 
 Not recoverable for ejecting a passenger when done in good 
 
 faith, pursuant to rules 192 
 
 Not recoverable for cutting off a sleeper 192 
 
 Recoverable for alienation of affection 193 
 
 Recoverable for fraudulent marriage 193 
 
 In General. 
 
 Recoverable for assault and battery 193 
 
 Recoverable for breach of promise of marriage 193 ' 
 
 Recoverable for wrongful eviction of passenger from train . 193 
 Recoverable for selling intoxicating liquor to husband, 
 
 when wantonly done X93 
 
 Recoverable for seduction 193 
 
 Recoverable for libel 193 
 
 Recoverable for unlawful arrest 193 
 
 Municipal corporations not liable for 194 
 
 For causing death, recoverable where statutes authorize it 195 
 
 Should be proportionate 19g 
 
 Recoverable where actual damages are nominal ......" 196 
 
 Judgment for, cannot be rendered when actual daifiages are 
 
 remitted j^g,^ 
 
 Evidence of wealth admissible where, are recoverable 285 
 
 Court must instruct jury upon [[\" 307 
 
 Exhibition. 
 
 Of injured part may be made 271 
 
 Expectancy of Life. 
 
 Is a factor for consideration in case of death 206 
 
 Expectancy of parent's life, damages limited to '.'.'.'.'.'.'.'. 211 
 
INDEX. 543 
 
 Expenses. References are to Sections. 
 
 Paid and incuiTed i c 
 
 Defined ■"■ 7^ 
 
 Must be reasonable 15 
 
 Dependent on nature and extent of injury . . . . . . . . ........ 15 
 
 Services of Physician. 
 
 Not seriously contested when reasonable if physician has a 
 
 reputable standing ]^5 
 
 Include money paid for nursing, and physician, medicine 
 
 and other necessary items to effect a cure 15 
 
 Scope of, when person is sick when injured 15 
 
 Belong to compensatory expenses 15 
 
 Physician must be qualified to practice 15 
 
 No liability for expenses of physician not qualified '. 15 
 
 Burden of proof on injured person to show extent of in- 
 jury, and need of a physician 16 
 
 Reasonableness and necessity of expenses must be proved. . 16 
 
 Actual expenses and their reasonableness must be shown. 16 
 
 How shown if disputed 16 
 
 Railroad fare may he recovered when incurred under ad- 
 vice of physician 16 
 
 There must be evidence of the services of physician 16 
 
 Proof of payment of physician and other bills is unneces- 
 sary 17 
 
 Recovery may be had when paid by a stranger 18 
 
 Contra, in some states 18 
 
 Services of Xurse. 
 
 Value of services how shown 16 
 
 Bills paid as rendered, evidence of 16 
 
 Gratuitous services, value of, may be recovered 18 
 
 Nursing by the family may be recovered 18 
 
 Injured person may hire an adult of his family to nurse . . IS 
 Future medical expenses recoverable, when natural result 
 
 of injury 19 
 
 Expenses of nurse or physician in hospital cannot be re- 
 covered 18 
 
 Incurred for help about house or business 28 
 
 Parent may recover for expenses incurred for nursing and 
 
 medical attendance of child 27 
 
 Malpractice, recovery for 29 
 
 Recoverable by husband for injury to wife , 152 
 
 Incurred by husband for wife's recovery 154 
 
 May be recovered by wife when paid out of her estate .... 157 
 
 Parent may recover, to effect a cure of child '. 163, 166 
 
 Of Employes. 
 
 May show as damages for loss of time 36 
 
 EXPEBTS. 
 
 Opinion, evidence of value of time lost 39 
 
 ExPEBT Testimony. 
 
 Loss of- earning power not determined by 61 
 
 Is inadmissible to prove amount of damages for physical 
 
 pain and suffering '• • • 51 
 
544 INDEX. 
 
 References are to Sections. 
 Explosions. 
 
 Presumption of negligence in case of 251 
 
 Expressions op Opinion. 
 
 The court must omit from, except to say damages should be 
 
 reasonable 44, 307 
 
 Exception, court may express an opinion in United States 
 
 courts 307 
 
 Eye. 
 
 Verdict for a black 85 
 
 Eyesight. 
 
 Loss of, caused by injury 56 
 
 Face. 
 
 Verdicts for damages to 70 
 
 Disfigurement of 93 
 
 Family. 
 
 Evidence of the number of 287 
 
 Evidence of the number of, admissible in some states 287 
 
 Evidence of the number of, admissible, where pecuniary loss 
 
 is sustained , 287 
 
 False Impbisonment. 
 
 Need not be malicious Ill 
 
 Mental suffering caused by ^ Ill 
 
 Fabmee. 
 
 Value of services how shown 36 
 
 Father. 
 
 Kind disposition of the, may be shown, in case of death 214 
 
 No damages recoverable for grief of, for loss of son 214 
 
 Peab. 
 
 May be considered in aggravation of damages 92 
 
 Feveb. 
 
 Developed by an injury 141 
 
 Developed by the Injury may be shown 146 
 
 Feelings. 
 
 Injury to, for delay to transmit telegram 116 p224 
 
 Verdict for loss of sense of '. . ' 35 
 
 Fingers and Thumb. 
 
 Verdicts for injury to 7g 
 
 Floods. 
 
 Railroad companies liable for accidents arising from 252 
 
 Foot. 
 
 Verdicts for injury to g2 
 
INDEX. 545 
 
 References are to Sections. 
 Fbight. 
 
 Mere fright unaccompanied by any physical injury 92 
 
 Any consequences, the natural result of the injury 92 
 
 Damages for nervous fright, shock or peril 92 
 
 Damages for fright may be recovered, where plaintiff has 
 
 cause of action independent of fright 92 
 
 Distinction between, when and when not fgllowed by re- 
 sults 95 
 
 Damages not recoverable, caused by blasting, where no 
 
 physical injury 95 
 
 Damages for, recoverable when followed by physical effect. 95 
 
 Fraudulent Marria.ge. 
 
 Exemplary damage recoverable for 193 
 
 B'UXEEAr, EXPEXSES. 
 
 May be recovered in Arkansas when presented and allowed 
 
 as claim against estate 22 
 
 Not recoverable under the English statute 22 
 
 Rule for recovery in New York 22 
 
 May be recovered when paid or parties have become liable 
 
 therefor " 22 
 
 Are not recoverable unless paid by beneficiaries 219 
 
 Future Physical Paix axd Suffering — See Physical Pain and 
 Suffering. 
 
 Geems. 
 
 Of disease developed by injury 141 
 
 Good Faith. 
 
 All that is necessary in the employment of physician 27 
 
 Gbatuitous Sebvices. 
 
 Damages may be recovered for, of physician 17 
 
 Gbtef. 
 
 No damages recoverable for grief for loss of son 214 
 
 Habits. 
 
 Of injured person or former occasions 
 
 Head. 
 
 Verdicts for damages to 
 
 Heabing. 
 
 Damages for injury to 
 35 
 
 282 
 
 Hand. 
 
 Verdicts for injury to '^'^ 
 
 69 
 
 65 
 83 
 
 Health. 
 
 Injury to health may be the basis of action 
 
 Verdicts for injury to ■ ■ •■ ■ ■ 
 
 Evidence of effect of the injury on the, may be shown .... 274 
 
 Delicate, is no defense for an injury 14" 
 
 Enfeebled health caused by libel or slander iijo 
 
 71 
 
546 INDEX. 
 
 References are to Sections. 
 Heaet. 
 
 Verdicts for injury to • • • 75 
 
 Hernia. 
 
 Developed by injury may be shown 146 
 
 High Watbks. 
 
 Railroad companies liable for accidents arising from 252 
 
 Hip Disease. 
 
 Developed by injury may be sliov?n 146 
 
 Hip and Thigh. 
 
 Verdicts for injury to 80 
 
 HONOE. 
 
 Loss of, and good name causes for damages 98, n 
 
 Hotels. , 
 
 No discrimination between races at 102 
 
 Hotel Woek. 
 
 Loss of earning power, how shown 56 
 
 Humiliation. 
 
 Caused by mutilation of body or impairment of mind 93 
 
 Damages for, without physical injury 97, 98 
 
 Elements of damages for 105 
 
 Caused by breach of contract of marriage 122 
 
 Future, from contemplation of maimed body 138 
 
 Husband. 
 
 Time lost in attendance upon his wife 33 
 
 Anxiety for suffering wife 137 
 
 May recover for loss of time 152 
 
 Damages recovered by, for injury to wife 152 
 
 Elements of damages for injury to wife 152 
 
 May recover for expenses to effect a cure 152 
 
 May recover for loss of services of wife 152 
 
 May sue alone for recovery for loss of services of wife . . . 152 
 
 Separation of, and wife, no defense for loss of services .... 152 
 
 Opium habit no defense for loss of services 152 
 
 Right to recover for damages based on negligence 152 
 
 Value of services depends on their character 152 
 
 Prima facie entitled to recover for services 152 
 
 Entitled to recover for loss of society and companionship. . 152 
 
 Entitled to recover for loss of consortium of wife 152 
 
 May recover for distress of mind 152 
 
 May recover for mental suffering 152 
 
 Cannot recover for loss of prospective offspring ! 153 
 
 Recovery of expenses must be based on positive evidence . . 154 
 
 No positive evidence for loss of society 154 
 
 May recover damages to himself and that sustained from 
 
 injury to wife I54 
 
 May bring an action for his own injuries and an action for 
 
 loss, etc., sustained by injury to his wife 154 
 
 Amount recoverable for injury to his wife dependent upon 
 
 the facts -^gr 
 
INDEX. 547 
 
 References are to Sections. * 
 
 No compensation to, for solatium 15g 
 
 Exemplary damages recoverable for selling 'intoxicating 
 
 liquor to, when wantonly done 193 
 
 Exemplary damages recoverable for alienation of affections 
 
 01 193 
 
 Damages recoverable for death of " 209 
 
 Amount recoverable in case of death dependent on age 
 
 ability and industry ' 209 
 
 Has no cause of action in Tennessee for death of wife .. . 209 
 
 Kind disposition of, may be shown in case of death '214 
 
 Verdicts for death of 229 
 
 Verdicts for death of, when not excessive ........'.... . 230 
 
 Evidence in case of marriage of surviving 264 
 
 Husband and Wife. 
 
 Joinder of actions regulated by statute or code 158 
 
 Hysterics. 
 
 Developed by the injury 142 
 
 Idiocy. 
 
 Caused to an infant I74 
 
 IlXXESS. 
 
 Additional suffering caused by injury on account of other 
 
 illness 32 
 
 Time lost by illness 32 
 
 Illinois. 
 
 Disfigurement not an element of damage in 93 
 
 Inadequate Damages. 
 
 When the verdict is inadequate, it should be set aside ..:... 311 
 
 When increased 314 
 
 INCIVI1.ITT. 
 
 Exhibited to a person in a public place 99 
 
 Practiced by a physician in examining a person 99 
 
 Indebtedness. 
 
 Of the deceased not admissible 266 
 
 Indecent Language. 
 
 Used to a female passenger waiting in a depot 98, n 
 
 Indignity. 
 
 Damages for without physical injury 97 
 
 Measure of damages for 103 
 
 Damages for, awarded by a jury 103 
 
 Damages for, must be reasonable 103 
 
 Proof of damages for 104 
 
 Elements of damages for 105 
 
 Caused by breach of contract of marriage 122 
 
 Industry. 
 
 An element of damage in case of death 209 
 
548 INDEX. 
 
 Eeferences are to Sections. 
 Infant. 
 
 53 
 53 
 
 Loss of earning capacity • • •.• • • ■ ■ 
 
 Loss of earning capacity limited to period after majority . . 
 Mortality tables inadmissible where action is for death of 
 
 child under five years °0 
 
 May recover damages for injury to himself , • • J-o^ 
 
 Earnings of, without deducting cost of board recoverable 
 
 by parent • • • • • • ^^^ 
 
 Bodily pain and mental suffering of, not recoverable by 
 
 parent ^°° 
 
 Amount recoverable for injury to, rests with ]ury in 
 
 May recover damages for injuries personal to him 172 
 
 May recover for bodily pain and mental suffering 172 
 
 May recover for diminished earning capacity 172 
 
 May recover for loss of choice of profession 173 
 
 May recover for damages for idiocy caused by injury . 174 
 
 Prospective Earnings. 
 
 Loss of pi;ospective earnings may be recovered, if due to di- 
 minished capacity 1' 6 
 
 Not necessary to allege specifically loss of prospective earn- 
 ings '^l^ 
 
 May recover loss of prospective earnings 176 
 
 Amount recoverable for injuries rests with jury 178 
 
 May recover for earnings during minority 179 
 
 Right to recover the same damages as an adult for the same 
 
 elements 180 
 
 Loss of chances for marriage 177 
 
 Proof. 
 
 Injury to, how proved 181 
 
 Element of damages for injury to, how proved 181 
 
 Verdicts recovered by, for injuries sustained 182 
 
 In Case of Death. 
 
 Loss not restricted to minority in New York 209 
 
 Loss restricted to minority 209 
 
 Loss restricted to pecuniary loss, in Ohio 209 
 
 Parent may recover damages for death of 211 
 
 Parent may recover loss of services during minority less 
 
 reasonable expenses ' 211 
 
 Law implies pecuniary loss in case of death of 211 
 
 Right of action for death of, continues during its minority . . 211 
 
 Loss of services need not be proved 211 
 
 Loss of services of, must be proved in Ohio 211 
 
 Parent may show pecuniary loss from expectation of ser- 
 vices after majority 211 
 
 Net value of services the measure of damages 211 
 
 Expenses of support must be deducted from services '. 211 
 
 Where infant has been emancipated, substantial damages 
 
 may be recovered by parent 211 
 
 Value of services dependent on physical and mental con- 
 dition of 211 
 
 Value of services dependent on age and earning capacity. . 211 
 Damages recoverable limited to expectation of parent's 
 
 life 211 
 
INDEX. 549 
 
 References are to Sections. 
 
 Substantial damages only recoverable by parent for loss of 
 
 an adult child 211 
 
 Actual pecuniary benefit for loss of an adult child must be 
 
 proved 211 
 
 Marriage of, cannot be shown in mitigation 211 
 
 Verdicts 227 
 
 Evidence unnecessary to show loss 263 
 
 Infant of Tender Yeaks. 
 
 No recovery for death of, by parent 164 
 
 Injubed Pekson. 
 
 Must employ a physician 27 
 
 Required to prove amount of time lost, and what it was 
 
 reasonably worth 30 
 
 Injured Persons. 
 
 Two classes of 2 
 
 Injuries. - 
 
 Cause of 3 
 
 Result of negligence 3 
 
 Measure of damages for 4 
 
 Mental temperament an element 7 
 
 Physical conditions a factor 7 
 
 Each injury has its own facts and elements 7 
 
 Extent and effect governed by mental temperament 7 
 
 Extent and effect governed by physical conditions 7 ' 
 
 Motive of person causing 10 
 
 Done by employe, master is liable for 10 
 
 Any, the natural result of the delay to deliver a telegram, 
 
 p. 226, p. 231 116 
 
 Must be intervening agency of sickness or disease, p. 271 . . 141 
 
 Wrongdoer liable for all direct results of 141 
 
 Evidence of prior 283 
 
 Injury to Feelings. 
 
 In an action for conspiracy damage for 140 
 
 Inquisition. 
 
 Personal examination of injured party cannot be made an . . 272 
 
 Insanity. 
 
 Not an element of damage in Texas 95 
 
 Damages for, if a result of negligence 95 
 
 Insomnia. 
 
 Verdict for, and other injuries 85 
 
 If the natural result of the injury Is bodily injury 96 
 
 Instruction. 
 
 Moral, in Ohio not an element of damage 
 
 Proof of loss of moral and physial in case of death 
 
 Loss of moral and physical, in Michigan Inadmissible 
 
 Instructions. 
 
 Questions for instructions to the jury as to negligence . . 
 
 156 
 209 
 209 
 
 306 
 
550 INDEX. 
 
 References are to Sections. 
 Insult. 
 
 Damages ascertained by jury 97 
 
 Damages for, without physical injury 97, 98 
 
 Measure of damages for 103 
 
 Damages for, must be reasonable 103 
 
 Proof of damages for .' 104 
 
 Elements of damages for 105 
 
 Injury to health 105 
 
 No distinction in color as to damages 105 
 
 Punitive damages 105 
 
 Mental pain and suffering endured 105 
 
 Delay, hinderance or physical hardship endured 105 
 
 Injury to character or credit - 105 
 
 Sickness or disease caused or developed by 105 
 
 Insults to Women. 
 
 Improper liberties and threats 98, n 
 
 Insulting language to when ejected from a train 98, n 
 
 Damages for, may be recovered when inflicted in public 
 
 places 98 
 
 Unlawful assault for unlawful sexual intercourse 98 
 
 Proof of amount of damage 98 
 
 Transfer from first to second class car, when obscene lan- 
 guage was used 98, n 
 
 Female passengers entitled to protection from lascivious be- 
 havior 98, n 
 
 Kissing a female passenger by a conductor in a car 98 
 
 Assault with intent to ravish 98, n 
 
 Social penalties cannot be imported into the law of com- 
 mon carriers 98 
 
 Unchaste persons cannot be excluded from public places 
 
 when orderly 98 
 
 No discrimination can be made when persons are conduct- 
 ing themselves civilly while riding upon trains 98 
 
 Conductor cannot remove female passenger from a car be- 
 cause reputation for chastity is bad 98 
 
 Insubance. 
 
 Evidence of, carried by decedent 293 
 
 Intellectual Training. 
 
 Not an element of aamage in Ohio 156 
 
 In Virginia is an element of damage 'I 156 
 
 Intemperate Habits. 
 
 Evidence of, admissible is bearing on compensatory dam- 
 ages: 288 
 
 Evidence of _ 288 
 
 Inteeest. 
 
 In case of death, interest on damages reckoned from date 
 
 of verdict 220 
 
 In some states, rests m discretion of jury 220 
 
 In some states is computed from date of death . . . . . . . 220 
 
 Cannot be added to verdict as a general rule . 270 
 
 Will be computed from date of verdict 270 
 
 Reasons why interest should not be computed 270 
 
INDEX. 55 1 
 
 References are to Sections. 
 Intent to Harm. 
 
 Damages may be recoverable where there is no intent to 
 
 harm if injury is done 65 
 
 Intoxication. 
 
 Of plaintiff admissible where it contributed to the acci- 
 dent 288 
 
 Intoxicating Liquok. 
 
 Exemplary damages recoverable for selling, to husband 
 
 when wantonly done 193 
 
 Mental suffering caused by sale of, to husband or parent. . 127 
 
 Damages recoverable is entire loss sustained 127 
 
 Loss of society and disgrace not the entire loss 127 
 
 Actual damages recoverable 128 
 
 Mental anguish and shame not recoverable when husband 
 
 was a drunkard 128 
 
 Damages for selling, to husband or father, given by stat- 
 utes 128 
 
 Damages recoverable by father for support of son 129 
 
 Mitigation of damages, how shown 130 
 
 Physical suffering caused by beating 131 
 
 Damages dependent upon a cause of action 132 
 
 Mental suffering must be based upon some actual injury. . 133 
 Loss of social position must be based upon some actual 
 
 injury 133 
 
 Some impairment of health must be shown 133 
 
 What is meant by loss of "means of support" 134 
 
 There must be a partial loss of support 134 
 
 Entire loss of means of support unnecessary 134 
 
 Exemplary damages for selling, recoverable 135 
 
 Iowa. 
 
 Damage recoverable for mental and physical suffering in 
 
 case of death 216 
 
 This rule not accepted by the federal court 216 
 
 Issues. 
 
 Limitation of, defined 280 
 
 Jeopabdt. 
 
 Jeopardy and hazard in which plaintiff was placed 92 
 
 Joinder of Actions. 
 
 For pecuniary loss and for damages for mental and physi- 
 cal suffering 222 
 
 Jurisdiction. 
 
 Of courts in actions for damage— transitory actions 246 
 
 JUET. 
 
 To determine what is fair and reasonable damages iJ- 
 
 The value of time lost, a question for ■ 31 
 
 To determine amount of damages for physical pam and suf- 
 fering 
 
 Amount of damages for future pain and suffering for ... 46 
 
 Improper and proper instructions as to recovery for future 
 pain and suffering 
 
552 INDEX. 
 
 References are to Sections. 
 JuBT — Continued. 
 
 May consider probable duration of life as to future pain 
 
 and suffering 47 
 
 Must determine amount of loss of earning power 55 
 
 In estimating award for diminished capacity, growing 
 
 years, infirmities of age, etc 56 
 
 Amount for loss of earning power not merely discretionary 
 
 irrespective of proof 56 
 
 May consider resultant disability arising from injury.... 56 
 
 Reasonable certainty of mental suffering miist be shown . . 120 
 Must determine amount of damage for mental suffering for 
 
 negligent delivery of telegram 120 
 
 Should determine certain facts as a basis to avoid exem- 
 plary damages 186 
 
 In estimating damages for injury to wife may consider age, 
 
 health and capacity 155 
 
 Sole arbitrators of amount recoverable by parent 170 
 
 Amount recoverable by an infant rests with jury 178, 181 
 
 Are to determine general loss of earning capacity 256 
 
 Questions for instructions to, as to negligence 306 
 
 The court must instruct upon exemplary damages 307 
 
 Province of, defined 308 
 
 Must consider facts of negligence 308 
 
 Must consider facts of damages 308 
 
 Should award reasonable verdict 309 
 
 Kansas. 
 
 Damages recoverable for mental and physical suffering in 
 
 case of death 216 
 
 Kentucky. 
 
 Damages recoverable for mental and physical suffering in 
 
 case of death 216 
 
 Kissing. 
 
 A female passenger by a conductor against her will 98 
 
 Laches. 
 
 Delay in the employment of a physician 28 
 
 Lascivious Behavior. 
 
 Peniale passengers entitled to protection from, by conduc- 
 tors 98 
 
 Leg. 
 
 Verdicts for loss of > g-^ 
 
 Legislature. 
 
 May fix limitation of amount recoverable for exemnlarv 
 
 damages for negligence _ j9q 
 
 Libel. 
 
 Damages governfed by spirit or motive mfi 
 
 Damages mitigated by want of malice i ar 
 
 Injury to feelings when act is maliciously done Tnfi 
 
 Damages to person, property or reputation . i nfi 
 
 Rules for, measuring damages . . jQg 
 
INDEX. 553 
 
 References are to Sections. 
 
 Damages caused by ^qq 
 
 Amount of damages recoverable 107 
 
 Elements of damages ['[\ j^OT 
 
 Damages for mental suffering 108 
 
 Evidence of damage 109 
 
 Exemplary damages recoverable for ....... . . . . . . . . . . nx 
 
 Limitation. 
 
 Of amount in case of death is fixed by statute in some 
 
 states 221 
 
 Statute of, runs against cause of action in case of death. '. 223 
 
 Of time within which declarations are admissible 255 
 
 Of time within which declarations are admissible is flexible 
 
 according to each case 255 
 
 Of damages to one action; exception 275 
 
 Literary. 
 
 Emoluments, loss of, may be shown 269 
 
 Loss OF Earxinu Capacity — See Diminished Earning Capacity. 
 Loss OF Good Name. 
 
 And honor causes for damages 98, n 
 
 Loss OF Honor. 
 
 And good name causes for damages 98, n 
 
 Loss OF Society. 
 
 Must be left to sound discretion of injury 154 
 
 What is competent evidence .' 154 
 
 Of wife need not be positively shown 154 
 
 Loss OF Time. 
 
 Damages for 30 
 
 Defined 30 
 
 Value of time lost in business, trade or profession 30 
 
 Amount of time lost by injury 30 
 
 Distinction between it and diminished capacity 30 
 
 Failure of employer to deduct, no defense 34 
 
 Proof of value of time lost 36 
 
 Value of, proof of by wages or average earnings 36 
 
 Salary or average earnings afford best means upon which to 
 
 estimate 36 
 
 How shown when engaged in business 36 
 
 When no value is shown 36 
 
 Dependent upon how much injured person was worth to his 
 
 profession, trade or business 36 
 
 May be shown by nature and extent of business and value 
 
 of injured person to same 36 
 
 General rule for determining value of time of injured per- 
 son to his business or profession 36 
 
 Attorney may show his average earnings for five years 
 
 previous as a basis for recovery 36 
 
 Of mechanics, how shown 36 
 
 Value of, to a trade in which injured person was engaged. . 36 
 
 May be shown by fixed wages or salary received 36 
 
 Of teacher shown by wages for four years previous 36 
 
554 INDEX. 
 
 References are to Sections. 
 
 Loss OF Time — Continued. 
 
 Of teacher shown by average wages paid for like services. . 36 
 
 Of carpenter shown by his earnings 36 
 
 Of a farmer, how shown 36 
 
 Of paper hanger, how shown » 36 
 
 Of decorator, how shown 36 
 
 Of peddler, how shown • • • 36 
 
 Of brakesman, how shown 36 
 
 In business, how shown 36 
 
 Of salesman, how shown 36 
 
 Of canvasser, how shown 36 
 
 Of minister, how shown 36 
 
 Extra expense paid for hired help 36 
 
 Profits of business may be shown 37 
 
 Of married women, when and when not recoverable 38 
 
 Opinion-evidence of its value 39 
 
 Persons engaged in unlawful business cannot recover for. . 40 
 
 Persons not engaged in any business cannot recover for ... 40 
 
 Recoverable by husband for injury to wife 152 
 
 May be recovered by wife when doing business for herself. . 157 
 
 Louisiana. 
 
 Damages recoverable for mental and physical suffering in 
 
 case of death 216 
 
 Verdicts for damages may be increased by the court 314 
 
 Malicious Assault. 
 
 Verdict for 85 
 
 Malicious Pbosecution. 
 
 Mental suffering caused by , 112 
 
 Damages confined to one action and one recovery 113 
 
 Elements of damages 114 
 
 MaLI'EACTIOB. 
 
 Exilenses for, when recoverable 29 
 
 Marriage. 
 
 Breach of contract, mental suffering caused thereby recov- 
 erable 122 
 
 Trifiing with affections greater injury than to property.. 122 
 
 Elements of damages for breach of contract of 123 
 
 Prospect of, diminished by breach of contract, ground for 
 
 recovery 122 
 
 Dissappoinment an element of damage for breach of con- 
 tract of 123 
 
 Assessment of damages for breach of contract of . . . . . . . . . 124 
 
 Measure of damages for breach of contract of 125 
 
 No mathematical rule for measurement of damages for 
 
 breach of contract of 12fj 
 
 Jury to determine amount of damages 126 
 
 Loss of chances of, is an element of damages ........ 177, 
 
 Exemplary damages recoverable for fraudulent . . 193 
 
 Destruction of prospect of, basis for an action .... 
 
 Mabbied Women. 
 
 Cannot recover for expenses of nursing and medical attend- 
 ance 
 
 64 
 
 20 
 
INDEX. 
 
 Eeferences are to Sections. 
 
 Husband may recover for expenses of nursing and medi- 
 cine 
 
 Amount recoverable by husband for nursing his wife ... 
 When expenses for nursing, etc., are recoverable if made on 
 
 own account 
 
 Loss of services belong to husband .........][...[...[. 
 
 When engaged in business by herself, may recover for 
 
 loss of time 
 
 Cannot recover for loss of time when living with husband. '. 
 Massachusetts. 
 
 Damages recoverable for mental and physical suffering in 
 case of death 
 
 555 
 
 20 
 20 
 
 20 
 38 
 
 38 
 38 
 
 210 
 
 Master. 
 
 Duty imposed upon 3 
 
 Mathej[atical Basis. 
 
 Mortality tables not a mathematical basis for determining 
 
 expectancy gO 
 
 Mathematical Rule. 
 
 None by which damages can be ascertained 6 
 
 No, for measurement of damages for breach of contract.. 126 
 
 Means of Support. 
 
 Loss of, in whole or in part, cause of action for selling 
 
 liquors 134 
 
 Measure. 
 
 Of defendent's duty in determining a wrong 306 
 
 Of defendant's liability in determining damages 306 
 
 Measure of DAiiAOES. 
 
 Includes all the elements 1 
 
 Judgment represents 4 
 
 Includes entire loss 11 
 
 Mean one total sum 11 
 
 When death follows, is loss of care, support and mainten- 
 ance 204 
 
 Mean full effect of injury, present and prospective 11 
 
 Mechanic. 
 
 Loss of time of, may be shown by contract 36 
 
 Future contracts may be shown to prove loss of time 36 
 
 Loss of earning power, how shown 55 
 
 Medical Expenses. 
 
 Future 19 
 
 Future, when reasonable and necessary result of injury . . 19 
 
 Infant may recover for medical expenses when paid by him. 21 
 
 Parent may recover for medical expenses 21 
 
 In Case of Death. 
 
 Not recoverable in New York by administrator, but are by 
 
 parent 
 
 Not recoverable in Illinois 23 
 
 Recoverable if incurred between injury and date of death . . 23 
 
 Recoverable In some states 218 
 
 Not recoverable without proof that account is filed with exe- 
 cutor 
 
 22 
 
 218 
 
556 INDEX. 
 
 Eeferences are to Sections. 
 Mental Anguish. 
 
 Of parent cannot be shown 211 
 
 Mental Faculties — See Mind. 
 
 Verdicts for damages to mental faculties 68 
 
 Mental Shock. 
 
 Any physical injury the natural result of the mental 
 
 shock caused by negligence 92 
 
 Mental Supfebing. 
 
 Caused by 'any physical injury 14 
 
 Caused by criticism or humiliation occasioned by mutila- 
 tion or disfigurement of face 14 
 
 Caused by impairment of mental faculties 14 
 
 Caused by insult, indignity or discrimination inflicted in 
 
 a public place 14 
 
 Caused by utterance or publication of libelous or slander- 
 ous words 14 
 
 Caused by malicious prosecution, false imprisonment or il- 
 legal use of process 14 
 
 Caused by unlawful interference with the person, as abduc- 
 tion or seduction 14 
 
 Caused by negligent performance in transmission and de- 
 livery of telegrams 14 
 
 Caused by breach of contract of marriage 14 
 
 Caused by sale of intoxicating liquors 14 
 
 In general 86 
 
 An element of damage 86 
 
 Must be based upon some actual injury or wilful wrong. ... 86 
 Authorities differ as to when damages may be allowed. ... 86 
 Must rest upon tangible, positive and visible cause of ac- 
 tion 86 
 
 Damages allowable whenever injured person has right of 
 action and mental suffering is one of natural conse- 
 quences gg 
 
 Authorities quoted and illustrations given where mental 
 
 suffering is admissible gg 
 
 Damages for future mental suffering when reasonably cer- 
 tain 89 
 
 No fixed rule of measurement 87 
 
 Damages tor mental suffering need not be proved 88 
 
 Glasses. 
 
 Caused by apprehension as to effect of physical injury 90 
 
 Caused by humiliation resulting from mutilation of body. . 90 
 
 Caused by insult, discrimination in public places 90 
 
 Caused by publication of libelous or slanderous words 90 
 
 Caused by malicious prosecution, false imprisonment . ... . 90 
 
 Caused by non-transmission or non-delivery of telegrams. 90 
 
 Physical pain or injury is basis of damages 91 
 
 Mental suffering based on physical pain or injury 91 
 
 Caused by jeopardy and hazard 92 
 
 Any consequences the natural result of injury 92 
 
 Nervous shock, peril and fright 92 
 
 Some authorities deny any damages for nervous shock 92 
 
 Based upon impediment of speech or impairment of mind 93 
 
 Based on disfigurement of face " 93 
 
INDEX. 557 
 
 References are to Sections. 
 
 Based on mutilation of body 93 
 
 Damages for, need not be pleaded 94 
 
 Damages for humiliation without physical injury 97 98 
 
 Damages for insult and indignity inflicted in public places ' 97 
 
 For ejection from trains without cause 97 
 
 Caused by indecent proposal and conduct to women in 
 
 public place ■ 90 
 
 Caused by improper liberties and threats .............. 98 n 
 
 Caused by a conductor kissing a female passenger while 
 
 riding in car gg 
 
 Violent and profane language to passenger by employes . '. 98 
 
 Caused by assault of porter upon passenger 98 
 
 Basis of recovery 99 
 
 Not dependent necessarily upon a physical injury 101 
 
 Caused by distinction between races 102 
 
 Damages for indignity without physical injury 97, 98 
 
 Damages for insult without physical injury 97' 98 
 
 Caused by assault with intent to ravish 98, n 
 
 Damages for mental suffering caused by libel or slander. . 106 
 
 Caused by wrongful assault 110 
 
 Caused by false imprisonment Ill 
 
 Caused by malicious prosecution 112 
 
 Caused by negligent transmission and delivery of tele- 
 grams 116 
 
 Is ground for damages if negligence to send telegram is 
 
 proximate cause 116 
 
 Recoverable although there was no physical injury for de- 
 lay in transmitting telegram lift 
 
 Damages may be recovered by parent for delay in sending 
 
 telegram 212 
 
 Is more acute and intense than physical suffering 116 
 
 Difficulty of measurement no reason for refusing damages. . 116 
 
 Recoverable when wrong was needlessly inflicted 116 
 
 Caused by delay in delivery of sick message, p. 225 116 
 
 For delay in delivery of telegram is just compensation for 
 
 mental anguish, pp. 227, 228, 229 116 
 
 A just compensation for, is recoverable for delay in delivery 
 
 of telegrams, pp. 227, 228, 229 116 
 
 Damages for, recoverable for delay in delivery of telegram, 
 
 p. 221 116 
 
 Damages for, denied because pure mental suffering 118 
 
 Caused by breach of contract of marriage 122 
 
 An element of damage for breach of contract of marriage. . 123 
 
 Causfed by sale of intoxicating liquor to husband or parent . . 127 
 Is not recoverable when husband was a drunkard before 
 
 sale 128 
 
 Damages caused by wrongful attachment 114 
 
 Caused by seduction 115 
 
 And bodily pain may be recovered for by wife 157 
 
 Damages for, may be recovered by infant : . 172 
 
 Mkntal a.nd Physical Suffering. 
 
 Qi" deceased an element of damage by statute in some 
 
 states 216 
 
 Mental Suffebixg Alo,n-e. 
 
 Damages for. not recc 
 
 Without any physiological results ^^' 
 
 Damages for. not recoverable 1^'^ 
 
558 INDEX. 
 
 Keferences are to Sections. 
 
 Mental SuFFEniNG Alone — Continued. 
 
 Is pure mental Action and not an element of damage 137 
 
 Distinct from mental suffering based on negligence 137 
 
 Michigan. 
 
 Nominal damages not recoverable where no pecuniary in- 
 jury is shown 215 
 
 Two causes of action in case of death given by statute 216 
 
 MicnouES. 
 
 Developed by an injury 142 
 
 Mind. 
 
 Impairment of 93 
 
 Evidence of effect of injury on the 274 
 
 Minister. 
 
 Loss of time, how shown 36 
 
 MiNOEITT. 
 
 Of infant does not bar recovery for loss of earnings 179 
 
 MiSCABRIAGE. 
 
 Is an element of damage 146 
 
 Mississippi. 
 
 Two causes of action in case of death given by statute 216 
 
 Mitigation. 
 
 Nursing by the family cannot be shown to lessen liability . . 18 
 When person is engaged in an unlawful business, no re- 
 covery for time 34 
 
 Defense may show that injured person has continued to re- 
 ceive wages during time of injury, when 34 
 
 Failure of employer to deduct wages for time lost 34 
 
 Iiefendant may show that no wages were lost 34 
 
 Mitigation of Damages. 
 
 When plaintiff had no visible means of support 40 
 
 Receipt of wages from employer may be shown during disa- 
 bility 40 
 
 Physician cannot recover for loss of time when practice is 
 
 unlawful 40 
 
 Habitual drunkard 40 
 
 Persons engaged in unlawful business 40 
 
 Bright's disease as effecting expectancy 60 
 
 Damages reduced by want of malice in libel or slander.. 106 
 
 By giving liquors to son in parent's home 130 
 
 Possession of a nervous temperament is no 141 
 
 Tendency to disease is no 141 
 
 Predisposition to cancer 141 
 
 Tendency to disease 142 
 
 Delicate health 146 
 
 Ignorance of existing condition of health .............. 146 
 
 Question for the jury, when disease is developed ...... . . 150 
 
 Marriage of infant cannot be shown 211 
 
 Evidence of prior injuries , , ,[ 283 
 
INDEX. 559 
 
 References are to Sections. 
 Mortality Tables. 
 
 When admissible 60 
 
 Mortality tables in use 60 
 
 Based on tabulated facts 60 
 
 Illustrations of the application of same 60 
 
 When injury is not permanent 60 
 
 Not admissible to show expectancy as basis for damages for 
 
 pain and suffering 60 
 
 Not admissible in action by father for death of son 60 
 
 Not admissible when action is for death of child under five 
 
 years of age 60 
 
 Not a mathematical basis for determining expectancy .... 60 
 
 Are not conclusive evidence 60 
 
 Inadmissible without proof of earning capacity 60 
 
 Admissible to prove expectancy 60 
 
 Admissible though the person was in poor health 60 
 
 Admissible when injured person was engaged in hazardous 
 
 employment 60 
 
 When injured person is troubled with chronic disease .... 60 
 
 Are not conclusive rules in case of death 206 
 
 MOBTIFICATION. 
 
 Caused by breach of contract of marriage 122, 123 
 
 MOTHEB. 
 
 Damages for loss of infant may be apportioned between 
 
 father and 211 
 
 Shock to her feelings for loss of child inadmissible 214 
 
 MouBxixG Apparel. 
 
 Expenses for 22 
 
 Municipal Coepobation. 
 
 Not liable for exemplary damages 194 
 
 Municipal Oedinance. 
 
 Duty imposed, by ^ 
 
 Muscles. 
 
 Paralysis of 
 
 Musician. 
 
 Loss of earning power, how shown ^5 
 
 Mutilation. 
 
 Proof of pain and suffering unnecessary when body is muti- ^^^ 
 
 lated offi 
 
 When body is mutilated proof unnecessary ■'OJ^ 
 
 Natubal Justice. 
 
 Rule of compensation 
 
 Negligence. .. 
 
 Arising from use of steam and electricity ^ 
 
 Cause of personal injuries ^^ 
 
 Direct 10 
 
 Proximate cause of 
 
560 INDEX. 
 
 References are to Sections. 
 
 Negligence — Continued. 
 
 Mere, not ground for exemplary damages 183 
 
 Presumption of, by plaintiff, shifts burden of proof 240 
 
 Precedent, not admissible, when 254 
 
 When not proximate cause 254 
 
 Generally mixed question of fact and law 304 
 
 There must be some material and substantial evidence to 
 
 support it 304 
 
 Negotiations. 
 
 Of compromise 302 
 
 Nervous Disease. 
 
 If natural result of injury, is bodily injury 96 
 
 Nervous Shocks. 
 
 Damages for nervous shock, fright, or peril 92 
 
 Some authorities deny any damage for mental shock .... 92 
 
 Nervous Prostration. 
 
 Not an element of damage by some authorities 95 
 
 If natural result of accident is bodily injury 96 
 
 Caused by injury 141 
 
 New Hampshire. 
 
 Damages for death limited to suffering before death .... 216 
 
 Next of Kin. 
 
 May recover damages where death ensues 198 
 
 Who are, when death follows, defined 201 
 
 Unnecessary to aver special circumstances rendering death 
 
 a pecuniary loss 213 
 
 Verdicts recoverable for death of 231 
 
 Nominal Damages. 
 
 May be recovered in absence of pecuniary injury to bene- 
 ficiaries 215 
 
 Allowed for infraction of some right 13 
 
 Allowed for violation of some duty where no actual injuries 
 
 are sustained 13 
 
 Non-Emplotment. 
 
 Of physician, effect of 28 
 
 Of physician not a bar to recovery 28 
 
 Nursing. 
 
 Injured person may hire an a-lult member of family to 
 
 nurse Ig 
 
 By members of family cannot be shown as a mitigation .... 18 
 
 Services of wife cannot be recovered in Illinois 18 
 
 Services of wife can be recovered in Wisconsin 18 
 
 Services of nurse in hospital cannot be recovered ........ 18 
 
 Expenses when and when not recoverable for injuries sus- 
 tained by married women 20 
 
 Amount recoverable by husband for nursing wife 20 
 
 Parent may recover for expenses of nursing and medical 
 
 attendance 21 
 
 Time lost by parent in nursing his child .........[..[.... 33 
 
INDEX. 561 
 
 References are to Sections. 
 Obsce>-itt. 
 
 Female passengers entitled to protection from 98 
 
 Occupation, Oedinart. 
 
 Loss of earning power, how shown 55 
 
 Occupations. 
 
 Impaired capacity to work in other occupations 57 
 
 Offsprixg. 
 
 Husband cannot recover for loss of prospective 153 
 
 Operation. 
 
 Where or when not necessary, exercise of good judgment 
 
 question for jury 27 
 
 Refusal to have, only matter of mitigation 27 
 
 Damages for future pain and suffering for second opera- 
 tion or amputation 46 
 
 Opinion — Evidence. 
 
 Inadmissible to show value of time lost 39 
 
 Not admissible to show amount of damages for physical 
 
 pain 51 
 
 Opium Habit. 
 
 No defense against action by husband for loss of services 
 
 of wife 152 
 
 Oregon. 
 
 Damages recoverable for mental and physical suffering in 
 
 case of death 216 
 
 Paper Hanger. 
 
 Loss of time, how shown 36 
 
 Paralysis. 
 
 Of muscles 142 
 
 Parent. 
 
 Time lost by parent in nursing son 33 
 
 May recover damages for seduction 115 
 
 Damages for support of son by, for selling intoxicating 
 
 liquors 129 
 
 Mental suffering under some statutes not recoverable for 
 
 selling intoxicating liquor to son 129 
 
 Not entitled to recover for any mental suffering alone 137 
 
 Not entitled to recover for anxiety and suffering caused by 
 
 sickness of child 1^^ 
 
 May recover for injury to child 162 
 
 May recover for reasonable expectation of services after 
 
 majority .•■••■•■.■■ j'. " C,:, -l 
 
 May recover for loss of services during disability 
 
 163 
 163 
 
 May recover for loss of sevlces during minority 163 
 
 May recover expenses to effect a cure of child 163 
 
 Cannot recover for death of infant of tender years 164 
 
 Proof of expenses necessary to recovery loo 
 
 Proof of personal earnings unnecessary ■■• job 
 
 Pecuniary loss from personal earnings will be presumed. . 166 
 
 36 
 
562 INDEX. 
 
 References are to Sections. 
 Pabent — Continued. 
 
 May recover earnings without deducting support 167 
 
 May recover earnings without deducting cost of board .... 168 
 Cannot recover for bodily pain and mental suffering of in- 
 fant 169 
 
 Amount recoverable for injury to infant rests with jury 170 
 
 Verdicts recovered by, for injury to infant 177 
 
 Damages recoverable for death of 209 
 
 When Infant has been emancipated 211 
 
 May show pecuniary loss from expectation of services after 
 
 majority 211 
 
 Damages for loss of infant may be apportioned between 
 
 father and mother 211 
 
 Mental suffering of, cannot be shown 211 
 
 Cannot recover for loss of companionship of infant 211 
 
 Actual pecuniary injury for death of adult child 211 
 
 Substantial damages only recoverable for death of adult 
 
 child 211 
 
 Damages for loss of infant limited to expectancy of parent's 
 
 life 211 
 
 Pabtneeship. 
 
 Dissolution of 56 
 
 Net proceeds per month from partnership admissible to 
 
 show earning capacity 62 
 
 Loss of interest in a 268 
 
 Passengers. 
 
 Verdict for unlawfully ejecting passengers from trains . . 84 
 
 Are entitled to protection from insult and indecent language 
 
 in depot 98,n 
 
 Exemplary damages recoverable for wrongful eviction of, 
 t from train 193 
 
 Past Pbofits. 
 
 Are inadmissible 37 62 
 
 Payment. 
 
 Of expenses, proof of unnecessary I7 
 
 PECt;NIARY. 
 
 Construction of word, in case of death 209 
 
 Construction of, should be liberal 211 
 
 Pecuniary Injury. 
 
 Synonomous with pecuniary loss 200 
 
 Pecuniary Loss. 
 
 Damages for death by wrongful act is 200 
 
 Is presumed when death follows 200 
 
 Without, there can be no recovery onn 
 
 What is meant by ... . ,„„ 
 
 There must be proof of '.'.'.'.'.'.'.". 200 
 
 Differs as to who is beneficiary 200 
 
 Means aid, support, assistance 200 
 
 Test of, is benefit of deceased to beneficiary 200 
 
 Limited to future propective earnings . . 200 
 
INDEX. 563 
 
 References are to Sections. 
 
 Varies according to relation of beneficiary 200 
 
 Means fair and just compensation 200 
 
 Amount limited by statute 200, 221 
 
 Must be established by evidence 203 
 
 Can be no recovery without 203 
 
 Measured by earnings, care, benefit, etc 203 
 
 Is true measure of damages, without solatium for mental 
 
 grief 203 
 
 Peddles. 
 
 Loss of time, how shown 36 
 
 Peepetuitt. 
 
 Loss of earning power is not a, illustrations 59 
 
 Person. 
 
 Sacredness of 8 
 
 Inviolabilty of 8 
 
 Personal Earnings. 
 
 Of infant will be presumed of pecuniary value 166 
 
 Of infant not presumed of pecuniary value In Ohio 166 
 
 Personal Examination. 
 
 Of injured may be ordered by court 272 
 
 Of injured party cannot be made an inquisition 272 
 
 Of injured party will not be required for purposes of evi- 
 dence 272 
 
 Personal Feelings. 
 
 Parent cannot recover for bodily pain and mental suffering 
 
 of infant 169 
 
 Peesonal Injuries. 
 
 Occur from negligence 3 
 
 Persons on a Salary. 
 
 Amount of wages lost, recoverable 34 
 
 Photographs. 
 
 Of the locus in quo of the injury 278 
 
 Photograph. 
 
 Of an injured part ^''^ 
 
 Physician. 
 
 Services of in hospital ^° 
 
 Duty of physician when injured to employ ••:••■ 
 
 Employment of, protects against defense of contributory ^^ 
 
 negligence , •. „„ 
 
 Neglect to employ, constitutes contributory negligence .... ^^ 
 
 When it is duty to employ, question for jury ^' 
 
 Not obliged to employ most skillful 
 
 Duty of injured person to employ 
 
 Non-employment of, and its effect ..... i' •.■■•■ " ' ^a 
 
 When practice unlawful, cannot recover for loss of time. . . 40 
 
 Loss of earning power, how shown ■ ^go 
 
 Evidence of •. ocn 
 
 Evidence as to future medical services 
 
564 INDEX. 
 
 References are to Sections. 
 
 Physical BxAMiNATioN. 
 
 Will not be ordered during trial 273 
 
 PlElintiff may be required to perform physical acts during 
 
 trial 273 
 
 Refusal to submit to a, may be commented upon to jury. . 273 
 
 PHTSICAI, iNJtTKIES. 
 
 Caused by carrying passenger beyond station or destina- 
 
 ation 92 
 
 Physical Pain. 
 
 Caused by beating from husband under influence of liquor. 131 
 
 Of deceased 206 
 
 No damage recoverable when deceased was rendered uncon- 
 scious 217 
 
 Ground for damage for negligent delivery of telegram .... 119 
 
 Physical and Mental Suffering. 
 
 Of deceased, element of damage by statute in some states. . 216 
 
 Physical Pain and Suffering. 
 
 Of deceased must be proved, by whom shown 217 
 
 Cannot be an element of damage when death is instantan- 
 eous 217 
 
 An element of damage 43 
 
 Distinct from mental suffering 43 
 
 Compensation for physical pain and suffering, no fixed rule. 44 
 
 No Procrustean rule by which to measure 44 
 
 No market value for voluntary submission to pain can be 
 
 fixed 44 
 
 t'uture Physical Pain and Suffering. 
 
 All that may be endured 44 
 
 Amount question for jury 44 
 
 Natural result of injury 45 
 
 Must be shown to be reasonably certain 46 
 
 That may be reasonably expected 46 
 
 Damages for, not left to conjecture 46 
 
 Question for jury 46 
 
 Different ways of stating rule for 46 
 
 Improper instructions to jury for 46 
 
 Evidence suflicient for recovery of damages for 46 
 
 For second amputation or operation 46 
 
 That Is reasonably certain to be endured . . . : 46 
 
 Mere probability of its occurrence 46 
 
 Probable duration of life may be considered by the jury for. 47 
 
 Damages for, not exemplary 48 
 
 Proof of Pain. 
 
 Shown by nature and extent of injury 49 
 
 Unnecessary where leg or arm is broken or mashed, or loss 
 
 of a member ^ 49 
 
 The rule res ipsa loquitur applies 43_ 52 
 
 In General. 
 
 Recovery for pain when death occurs after action is 
 
 brought 50 
 
INDEX. 565 
 
 References are to Sections. 
 
 Exclamations of pain and suffering, when and when not ad- 
 missible 52 
 
 Amount of damages for physical pain and suffering can- 
 not be shown by expert evidence 51 
 
 Exclamations of pain, authorities divided, as to admissibil- 
 ity 52 
 
 Exclamations not admissible when narration of past event. 52 
 
 Three classes of exclamations of pain 52 
 
 Plaintiff. 
 
 May exhibit injured part to court and jury 258 
 
 P'leading. 
 
 Not necessary to plead payment of expenses 24 
 
 For medical attendance must be pleaded 24 
 
 What allegation }s necessary to recover for medical ex- 
 penses 24 
 
 Any special expense, necessary result of injury, must be 
 
 especially pleaded 25 
 
 Loss of time for profits must be specially pleaded 42 
 
 Damages for mental suffering need not be pleaded 94 
 
 Not necessary to specifically allege loss of prospective earn- 
 ings 176 
 
 Next of kin must aver special circumstances rendering 
 
 death a pecuniary loss 213 
 
 Exemplary damages must be pleaded 185 
 
 Proper allegations for recovery of exemplary damages .... 185 
 
 Preliminary suggestions 235 
 
 Improper conception of 237 
 
 Necessary allegations 238 
 
 Negative allegations, how construed 239 
 
 Negative allegations, authority pro and con 240 
 
 Negative allegations, how stated 241 
 
 Illustrations of 242 
 
 Special damage must be specially pleaded 243 
 
 In Ohio, action by servants 244 
 
 Averments in, when death follows from injury 245 
 
 In actions by next of kin 248 
 
 Pneumonia. 
 
 Caused from injury 141, 142 
 
 Poverty. 
 
 Evidence of, of parties inadmissible 284 
 
 Where exemplary damages 285 
 
 Evidence of, where pecuniary loss has been sustained 286 
 
 POWEBS. 
 
 Inherent, of courts ^ 
 
 Precedent. 
 
 New, courts to make 
 
 Pbivileges. 
 
 Equal, upon all trains of common carriers 9' 
 
 Profession. 
 
 Loss of choice of, to an infant 
 
566 INDEX. 
 
 References are to Sections. 
 
 Pbofessional Persons. 
 
 Loss of earning power, how shown 55 
 
 Pbopits. 
 
 When recoverable 37 
 
 Percentage of sales by salesman 37 
 
 Dependent on uncertainty of trade or business inadmissible 37 
 Result of personal skill, independent of commercial bus- 
 iness 37 
 
 Loss of time for profits must be specially pleaded 42 
 
 Wages, fees or fixed salary €2 
 
 Net proceeds per month from partnership business 62 
 
 Derived from investments or management of enterprises 
 
 are not earnings 62 
 
 Evidence of past profits in cordmercial business incom- 
 petent 62 
 
 Dependent on commercial business or transactions 62 
 
 Profits of Btjsiness. 
 
 May be received when unlawfully injured, as by trespass . . 37 
 May be recovered when unlawfully destroyed, or interfered 
 
 with 37 
 
 Profits on invested capital when injured person could not 
 
 give it attention 37 
 
 Speculative profits 37 
 
 Profits of business dependent on public patronage 37 
 
 Profits of business of which plaintiff was manager 37 
 
 Past profits in commercial business 37 
 
 Profits of commercial business 37 
 
 Value of services of injured party to the business 37 
 
 Depend on nature and kind of business 37 
 
 May be shown to prove loss of time, when 37 
 
 Pkomotion. 
 
 Inadmissible to show that person was in line of 58 
 
 Prospects of promotion cannot be shown 58 
 
 Prospects of increase of salary 58 
 
 Line of promotion too uncertain to be admissible 58 
 
 Dependent on too many conditions to be admissible to in- 
 crease damages 5g 
 
 Regular system of promotion may be shown 58 
 
 Admissible to show contract for increase of salary ....... 58 
 
 Proof of Pain. 
 
 Unnecessary when arm or leg is broken or mashed, or a 
 
 member, as an eye, is lost 49 
 
 Established by showing the nature and extent of injury . .. . 49 
 
 The rule, res ipsa loquitur, applies 49 52 
 
 Prospective Earnings. 
 
 Pecuniary loss limited to future 200 
 
 Prospects of Marriage. 
 
 Impairment or destruction of, may be made basis of action. 64 
 
 Prospective Profits. 
 
 Inadmissible 
 
INDEX. 567 
 
 References are to Sections. 
 Pkospective Oftspbing. 
 
 Husband cannot recover loss of 153 
 
 Pkotection. 
 
 Equal, upon all trains of common carriers 97 
 
 To female passengers -while riding in car 98 
 
 Pkovince of Coubts. 
 
 Duty to submit where fair and reasonable would differ 308 
 
 Proximate Cause. 
 
 Defined and explained 96 
 
 Of nervousness must be the injury 96 
 
 Injury received must have a 96 
 
 Is continuous succession of events, so linked as to become 
 
 one 96 
 
 Of physiological results of injury 96 
 
 Of sickness must be the injury 96 
 
 Same, page 271 141 
 
 Of insomnia 96 
 
 Of disease must be the injury 271, 141 
 
 Illustrated by the Squib case, page 271 141 
 
 Of injury may he traced to third person 141 
 
 If pneumonia results from injury 141 
 
 May concur from two or more independent causes 141 
 
 Illustrated by the Drake case 141 
 
 Must be the immediate cause 141 
 
 Injury may be, of sickness 146 
 
 Punitive Damages. 
 
 Defined 13 
 
 Questions. 
 
 Classes of, defined in personal injury cases 279 
 
 For instructions to jury 306 
 
 Races. 
 
 Discrimination between 102 
 
 No distinction between as to social or political rights 102 
 
 Distinction between 102 
 
 No distinction in color for damages 105 
 
 Railboad Companies. 
 
 Not liable for accidents arising from earthquakes or exces- 
 sively cold weather • • • •••••;••• HI 
 
 Liable for accidents arising from floods, broken rails, etc.. . ^&^ 
 
 Reasonable Doubt. 
 
 Not necessary to establish facts beyond a 
 
 REASONABLy CeBTAIN. 
 
 Must be future physical pain and suffering • • — ■ - 
 
 Damages for future mental suffering recoverable when 
 reasonably certain 
 
 265 
 
 46 
 89 
 
568 INDEX. 
 
 References are to Sections. 
 Recompense. 
 
 4 
 Damages mean 
 
 Redbbss. 
 
 Q 
 
 For new cause of action 
 
 Refusal. 
 
 To stop at station in disregard of a statutory duty 191 
 
 To sell. ticket at regular station i- 1>^1 
 
 Release. 
 
 Evidence of, is not admissible where obtained under fraud 
 
 or duress 
 
 When fairly made 
 
 Remote Damages. 
 
 Are proximate, but not expected consequences of wrongful 
 act 
 
 Rule. 
 
 295 
 295 
 
 Remittitur. 
 
 Verdicts may be decreased by the court when excessive 315 
 
 13 
 
 Reputation. 
 
 General, of employes 277 
 
 Of injured person 281 
 
 Remedy. 
 
 Duty of courts to provide a 8 
 
 For an injury 8 
 
 For a wrong 8 
 
 For damages for death by wrongful act dependent on locus . 199 
 
 Res Gestae. 
 
 Exclamations of pain, known as res gestae 52 
 
 Declarations showing cause of accident and description of, 
 
 injury 255 
 
 , Limitation of time within which declarations are admis- 
 sible is flexible 255 
 
 No sharply defined rule as to what is 255 
 
 Are declarations showing extent and character of injury . . 255 
 
 Declarations of master or servant admissible if a part of. . 255 
 
 Include cotemporaneous facts and circumstances 257 
 
 What is not res gestae 257 
 
 What is res gestae defined 257 
 
 Restaurants. 
 
 No discrimination between races at 102 
 
 No fixed rule for measuring damages 6 
 
 No Procrustean rule 6 
 
 No fixed rule to measure physical pain and suffering 44 
 
INDEX. 569 
 
 References are to Sections. 
 
 No fixed rule to establish loss for earning capacity .. ,. 53 
 
 General rule for computing loss of earning power 59 
 
 No fixed rule for measurement of damages for mental suffer- 
 ing 87 
 
 No general, for damages for disease developed 147, 148 
 
 No mathematical ruie 6, 9 
 
 RVDEXESS. 
 
 No ground for damage 99 
 
 Rupture. 
 
 Developed by injury 146 
 
 Salaby. 
 
 Persons on a, may recover value of time by showing wages. 34 
 
 May be regarded as best test of value of time 34 
 
 Most reliable test of value of time 34 
 
 Admissible to show contract for increase of salary 58 
 
 Evidence when salary for same work is higher in large 
 
 cities 58 
 
 Inadmissible to show injured person might have increase 
 
 of 58 
 
 Fixed salary admissible to show earning capacity 62 
 
 Sales.man. 
 
 Loss of time, how shown 36 
 
 Schools. 
 
 No discrimination between races in 102 
 
 Different schools may be provided for different races 102 
 
 Sciatic Nerves. 
 
 Developed by injury 146 
 
 Scotland. 
 
 Damages for solatium for wounded feelings 214 
 
 Scrofulous Tendenct. 
 
 Developed by injury 1*^ 
 
 Seduction. 
 
 Elements of damages for 11^ 
 
 Damages recovered by parents for iio 
 
 Mental suffering caused by |J° 
 
 Exemplary damages recoverable for J^^Jd 
 
 Separation. 
 
 Of husband and wife, no defense for loss of services 15^ 
 
 Duty of, toward passengers committed to their care 100 
 
 In charge of train, quasi police officers ^"" 
 
 Pleadings in Ohio, actions by servants 
 
570 INDEX. 
 
 References are to Sections. 
 Sbevices. 
 
 Of wife defined 152 
 
 Measure of, how stated 152 
 
 Of wife of pecuniary value to husband 152 
 
 Value of, depends on their character 152 
 
 Husband entitled prima facie to recover for 152 
 
 Wife's, differ from an ordinary servant 152 
 
 Husband may recover for Injury to wife 152 
 
 Exceptions to recovery by husband under Connecticut stat- 
 ute '. 152 
 
 Husband may sue alone for loss of 152 
 
 Separation of husband and wife, no defense for loss of .... 152 
 
 Of wife, not tested by hired employment 152 
 
 Opium habit no defense for loss of, by husband 152 
 
 Wife's, not estimated by what she could earn 154 
 
 Husband may recover value of, when she assists him in his 
 
 business 155 
 
 Parent may recover for loss of, during minority or disabil- 
 ity 163 
 
 Parent may recover for reasonable expectation of, after ma- 
 jority 163 
 
 Sbveee Cold. 
 
 Caused from negligence by exposure, is a ground for dam- 
 ages p. 272, 141 
 
 Sex. 
 
 No discrimination made in favor of 297 
 
 Sexual Organs. 
 
 Verdict for impairment of 85 
 
 Shame. 
 
 Caused by sale of intoxicating liquor an element of damage . 127 
 
 Sickness. 
 
 Caused by a transfer from first to second class car, when 
 
 obscene language was used 98, n 
 
 Is not an element of damage caused by internal oper 
 
 ations of fright 13j 
 
 Developed, an element of damage 141 
 
 Must be natural result of the injury 141 
 
 Principle on which recovery is had for . . . . . 143 
 
 Evidence of, how caused, admissible , , X44 
 
 Sick Persons. 
 
 Duty of common carriers towards 101 
 
 Sight. 
 Damages for injury to jO 
 
 Sister. 
 
 In action by, in case of death, there must be proof of loss. . 213 
 
 Spine and Back. 
 
 Damages for injury to 72 
 
INDEX. 57 1 
 
 Slandbs. Befereaces are to Sections. 
 
 Rules for measuring damages 106 
 
 Damages caused by 106 
 
 Damages to person, property or reputation .............. 106 
 
 Injury to feelings, when the act was maliciously done 106 
 
 Damages mitigated by want of malice 106 
 
 Damages governed by spirit or motive 106 
 
 Amount of damages recoverable 107 
 
 Elements of damage 107 
 
 Damages for mental suffering 108 
 
 Evidence of damage 109 
 
 Society. 
 
 Loss of defined 152 
 
 What is meant by loss of 152 
 
 Husband entitled to recover loss of 152 
 
 Damages for loss of, not recoverable in Washington 152 
 
 Loss of, may be recovered by the wife 159 
 
 Loss of, is not generally an element of damage 214 
 
 No damages are recoverable for loss of son's 214 
 
 Solatium. 
 
 No compensation to husband for 156 
 
 Is recoverable in Scotland and Virginia 156 
 
 SOLATIt:M FOR WOUNDED FEELINGS. 
 
 No damages are recoverable for 214 
 
 Damages for, may be recovered in Scotland 214 
 
 Damages for allowable by statute in some states 214 
 
 Son. 
 
 No damages are recoverable for loss of society of 214 
 
 South Dakota. 
 
 Damages are recoverable for mental and physical suffer- 
 ing in case of death 216 
 
 Special Artisans. 
 
 Loss of earning powers how shown 55 
 
 Special Damages. 
 
 Do not mean exemplary damages 13 
 
 Mean compensatory damages 13 
 
 Mean inability to follow some special business or profes- 
 sion 13 
 
 Evidence of special damages must be shown 267 
 
 Speculati\"e Profits. 
 
 Are inadmissible ^"^ 
 
 Speech. 
 
 Impediment of, an element of damage 93 
 
 Verdict for loss of ^° 
 
 Squib Case. 
 
 Illustrative of, as proximate cause 96, 141 
 
572 INDEX. 
 
 References are to Sections. 
 Statute. 
 
 Duty imposed by 
 
 Statutes. 
 
 Exemplary damages recoverable for death, when author- 
 ized by ; V;-:/ jqo 
 
 Give right of action to next of kin, in case of death las 
 
 Stenographeb. 
 
 Admissible to show contract for increase of salary 
 
 5S 
 
 Steam. 
 
 Use of, cause of accidents , ^ 
 
 Stipulations. 
 
 Waiving liability is void 296 
 
 Substantial Damages. 
 
 Mean compensatory damages 13 
 
 SUPPEKING. 
 
 In apprehension of bodily injury, not recoverable 95 
 
 Mental and physical, of deceased an element of damage in 
 
 some states 216 
 
 Sunday. 
 
 Injuries received on, are recoverable 298 
 
 Support. 
 
 Loss of, may be recovered by the wife 159 
 
 SuEGiCAL Examination. 
 
 Of injured person may be had, by order of court 272 
 
 ' In United States courts plaintiff cannot be held to a 272 
 
 Rests in the discretion of court 272 
 
 Court has power to compel a, if reasonably demanded 272 
 
 In Ohio plaintiff must submit if made before trial 272 
 
 In Ohio if plaintiff does not submit to a, action will be dis- 
 missed 272 
 
 Teacher. 
 
 Loss of time shown by wages generally paid 36 
 
 Loss of time shown by earnings for four years 36 
 
 Telegrams. 
 
 Two classes of actions 116 
 
 Negligent transmission of 116 
 
 Test of liability to send telegram promptly 116 
 
 Duty of company with reference to transmission and de- 
 livery 116 
 
 Delay is an infraction of duty 116 
 
 Some damages recoverable for infraction of duty 116 
 
 Damages for failure to transmit based either on ex con- 
 tractu or ex delicto 116 
 
 Damages for failure to transmit not based on sentiment. . 116 
 
 Deal with the affections 116 
 
INDEX. 573 
 
 References are to Sections. 
 
 Delay to transmit, inay cause great suffering, when death 
 
 ensues ^ .. . 
 
 Damages for delay to transmit recove'rable' ' by ' parents 
 
 brother or sister j^j^g 
 
 As basis for damages for mental suffering must be 'couched 
 
 m proper language hq 
 
 Telegraph company responsible for negligence 116 
 
 Telegraph company, agent of sender and receiver ... 116 
 
 Telegraph company responsible to sender and receiver 116 
 
 Receiver of telegram is the beneficiary 116 
 
 The message property of addressee 116 
 
 Sender agent of receiver lie 
 
 Mental suffering caused by delay recoverable, though no 
 
 physical injury j^j^g 
 
 Nominal damages at least recoverable for delay to trans- 
 mit and deliver Hg 
 
 By analogy, injured party has cause of action ........... 116 
 
 Infraction of legal right causes injury, and is ground for re- 
 covery iiQ 
 
 Telegraph company liable for failure to exercise ordinary 
 
 diligence 116 
 
 Telegraph companies are quasi corporations and owe a duty 
 
 to the public 116 
 
 Telegraph companies should perform their duties with dili- 
 gence, p. 224 116 
 
 Telegraph companies liable for delay in commercial du- 
 ties, p. 224 116 
 
 Injury to feelings from negligence greater than commercial 
 
 matters, p. 224 116 
 
 Injury to feelings is actual damage 116 
 
 No recovery for delay is a legal insult, p. 225 116 
 
 Mental suffering ground for substantial damages, p. 225 . . 116 
 
 Should be delivered promptly upon humane grounds, p. 225 . 116 
 
 Pecuniary loss not basis for damages for negligent delivery, 
 
 p. 226 116 
 
 Damages based upon broken agreement, p. 226 116 
 
 Any injury, natural result of the delay, ground for recov- 
 ery, p. 226 116 
 
 The delay not mere breach of contract, but failure to per- 
 form a duty, p. 226 116 
 
 Measure of damage is just compensation for mental anguish, 
 
 pp. 227, 228, 229 116 
 
 Injured person should recover damages commensurate with 
 
 injury, p. 232 116 
 
 Injured person should recover damages for all injury re- 
 sultant from negligent delivery, p. 232 116 
 
 Failure to deliver renders company liable for all damages 
 
 resulting therefrom, p. 232 116 
 
 Relates often to matters greater than property, p. 233 116 
 
 Relates to feelings and even life, p. 233 116 
 
 Damages for mental suffering recoverable as breach of con- 
 tract, p. 234 116 
 
 Injury to feelings for negligent delivery apparent, p. 235 . . 116 
 
 Damages for mental suffering not speculative, p. 236 116 
 
 Damages for mental suffering not vague and uncertain, p. 
 
 236 ■■ 116 
 
 Damages for mental suffering based upon principal and au- 
 thority, p. 237 116 
 
574 INDEX. 
 
 References are to Sections. 
 Telegeams — Continued. 
 
 Damages for mental suffering will not open a field of specu- 
 lative litigation, p. 237 116 
 
 Disclosure of relation of parties unnecessary 117 
 
 Damages for mental suffering denied, because pure mental 
 
 suffering 118 
 
 No distinction in rule laid down by authorities 118 
 
 Authorities Irreconcilable 118 
 
 Damages Denied, For Mental Suffering. 
 
 Because of no means ot measurement 118 
 
 Because purely speculative 118 
 
 Because departure from common law rule 118 
 
 Because it promotes litigation 118 
 
 Because of their remoteness 118 
 
 Because inseparable from the natural grief for loss by 
 
 death 118 
 
 Conclusive of author on this question of damages for mental 
 
 suffering 118 
 
 In General. 
 
 Physical pain ground for damages for negligent delivery. . 119 
 
 Amount recoverable for mental suffering rests with jury. . 120 
 
 Verdict should be commenserate with injury 120 
 
 Proof of mental suffering ; 120 
 
 There must be reasonable certainty of mental suffering .... 120 
 Damages may be recovered by parent for delay in sending 
 
 telegram 212 
 
 Independent action necessary to recover damage by parent 
 
 for delay in sending telegram 212 
 
 Telegraph Companies. — See Telegrams. 
 
 Tendency to Disease. 
 
 Evidence of 292 
 
 Tennessee. 
 
 Recovery for mental and physical suffering in case of death 216 
 
 Thigh and Hip. 
 
 Verdicts for injury to 80 
 
 Thumbs and Pingbes. 
 
 Verdicts for injury to 76 
 
 Time Value. 
 
 Means loss of business, earnings, or wages 30 
 
 Time Lost. 
 
 Test of value of 
 
 True test is value of time of injured person to his busi- 
 ness or profession 3]^ 
 
 Market value a fair, but not conclusive test ........[.....[ 31 
 
 Its value is question for jury [[ , 31 
 
 By husband in attendance on wife 33 
 
 No recovery when engaged in an unlawful' business' '.'.'.'.'.'.'. 34 
 
 30 
 
INDEX. 575 
 
 rpjjjj. References are to Sections. 
 
 Limitations of, within which declarations are admissible . . 255 
 
 Toes, Foot and Ankm;. 
 
 Verdicts for Injury to 
 
 Trade. 
 
 Loss of time to his trade may be shown to establish value. 
 Loss of time of a carpenter shown by earnings 
 
 82 
 
 36 
 36 
 
 TlTBESCTJLAE DISEASE. 
 
 Developed by injury / ^^42 
 
 TUMOB. 
 
 Caused by injury j^-^ 
 
 Typhoid Malaeial Feveb. 
 
 Caused by an injury 142 
 
 Ulcek. 
 
 Caused by injury m 
 
 UNIAWi'Ui. Aeeest. 
 
 Exemplary damages recoverable for 193 
 
 Utah. 
 
 Loss of companionship and protection of deceased 214 
 
 Vebdicts. 
 
 In different states 67 
 
 Damage to mental faculties 68 
 
 For Physical Injuries. 
 
 To head 69 
 
 To face and sight 70 
 
 To hearing 71 
 
 To spine and back 72 
 
 Total disability 73 
 
 Partial disability 74 
 
 To heart 75 
 
 To fingers and thumb 76 
 
 To hand 77 
 
 To wrist 78 
 
 To arm 79 
 
 To thigh and hip 80 
 
 To loss of leg 81 
 
 To ankle, foot and toes 82 
 
 To health ' 83 
 
 In General. 
 
 For unlawfully ejecting passenger from train 84 
 
 For insomnia and other injury 85 
 
 For impairment of sexual organs 85 
 
 For malicious assault 85 
 
 For bite of vicious dog 85 
 
576 INDEX. 
 
 References are to Sections. 
 
 In General — Continued. 
 
 For loss of speech 85 
 
 For ejecting passengers from trains 84 
 
 For negligent delivery of telegram to be commensurate 
 
 With injury 120 
 
 For disease developed 151 
 
 Recovered by wife 161 
 
 Recovered by parent for injury to infant 171 
 
 Recovered by Infants for injuries sustained by them ; 182 
 
 For death of minors 227 
 
 For aeath of adults 228 
 
 For death of husband and wife 229 
 
 Inadequate for death 232 
 
 Cannot be increased by adding interest 270 
 
 Will draw interest from date of rendition 270 
 
 Of coroner's inquest not admissible 294 
 
 Should be reasonable 309 
 
 Ordinarily, should not be disturbed 31o 
 
 Reasons for setting aside verdict 310 
 
 Set aside when influenced Dy passion, partiality or prejudice 310 
 
 .When inadequate, should be set aside 311 
 
 Unnecessary to itemize damages 312 
 
 Successive, should be accepted by court 313 
 
 May be increased in Louisiana and Georgia 314 
 
 May be decreased by a remittitur 315 
 
 Vindictive Damages. 
 
 Defined 13 
 
 VOLUNTEEB. 
 
 Physical pain and suffering not measured by what volunteer 
 
 would endure same for 44 
 
 Wages. 
 
 Loss of 30 
 
 Wages received not conclusive test of value 34 
 
 Recovery for wages based upon loss of same 34 
 
 Fixed wages or earnings value of time lost 36 
 
 Admissible to show earniLg capacity 62 
 
 Wealth. 
 
 Evidence of, admissible where exemplary (Jamages are re- 
 coverable 285 
 
 Evidence of the, of parties 284 
 
 Wife. 
 
 Value of her services not limited to value in household 31 
 
 Solicitation for her husband's welfare 137 
 
 Elements recoverable by husband for injury to ....... . 152 
 
 Husband may recover for services as of pecuniary value 152 
 
 Opium habit of, no defense for loss of services by husband 152 
 
 Has no right as a rule to recover damages for expenses 152 
 When she joins, damages for pain and suffering recover- 
 
 ^.^I'le ^52 
 
 Not a necessary party in action by husband 152 
 
 Right to recover limited to injuries to her person . . . 152 
 
INDEX. 577 
 
 References are to Sections. 
 
 Cannot recover for loss of services 152 
 
 Her services differ from ordinary servant 152 
 
 Age, health and capacity may be considered by jury 152 
 
 Damages recoverable by, for Injuries sustained by her 157 
 
 May recover damages personal to herself 157 
 
 May recover for bodily pain and mental suffering 157 
 
 May recover expenses when paid out of her own estate. . 157 
 May recover for diminished earning capacity when engaged 
 
 in business for herself 157 
 
 May recover for loss of time when doing business for herself 157 
 Cannot recover for diminished earning capacity, unless 
 
 doing business herself 157 
 
 May recover for damages for impaired health, caused by 
 
 fright 157 
 
 Must be proof of loss of elements of damages sustained by 
 
 her 157 
 
 May sue alone when deserted by husband 158 
 
 May recover for loss of companionship 159 
 
 May recover for loss of consortium 159 
 
 May recover for loss of support 159 
 
 Entitled to same protection of law as- husband 159 
 
 Contributory negligence on her part a defense 160 
 
 Verdicts recovered by 161 
 
 Damage recoverable for loss of 210 
 
 Loss of, include loss of services and care and tender 
 
 solicitude 210 
 
 Verdict for death of 229 
 
 Evidence in case of marriage of surviving husband .... 264 
 
 Witnesses. 
 
 Cannot give evidence as to amount of damages for physical 
 
 pain and suffering 44 
 
 Evidence of unskilled, is admissible as to facts within own 
 
 knowledge 259 
 
 Woman. 
 
 Words imputing want of chastity ground for damages 106 
 
 Women. 
 
 Insult to, in a public place 
 
 Wbist. 
 
 Verdicts for injury to 
 «37 
 
 98 
 
 Wounded Feelings. 
 
 Damages for, when injuries inflicted in public place with- 
 out cause 
 
 Caused by libel or slander 10^ 
 
 Caused by breach of contract of marriage 1^^ 
 
 No compensation for, to husband 156 
 
 Of surviving relatives inadmissible ^06 
 
 For loss of infant • 211 
 
 No damages recoverable for solatium for ^i-* 
 
 97 
 
 71