CHAPTER XXIX.

ACTIONS AGAINST CARRIERS.

$166. Right of and Form of Action and Recovery.

§ 167. Abatement of Suit by Death of Party Injured-Federal and State Courts.

§ 168. Action for Death Caused by Defendant's Negligence. $169. Criminal Action for Negligence Causing Death.

§ 170. State Statutes Regarding Actions for Death Caused by Another's Negligence.

§ 166. Right of and Form of Action and

Recovery.

The right to recover for injury by negligence of the carrier during the life of the person injured was recognized at common law. But the right of action ceased with the death of the injured party before judgment.' A person injured by the negligence of a carrier is entitled to receive one compensation for all damages, past and prospective, including expenses incurred, loss of time, and for actual suffering of body and mind."

A passenger wrongfully ejected from the train is not confined, as to his damages, to the additional amount of fare he was compelled to pay, but is entitled to recover for the humiliation suffered and the indignity done him.'

Expenses for medical attention are proper damages in an action for personal injuries. Nursing, as well as pain, loss of time and medical expense, may properly be considered in fixing the amount of recovery for personal injury.' Where medical services are proved in an action for personal injuries, nominal damages at 'Baker v. Bolton, 1 Campb. 493; Holland v. Lynn & B. R. Co. 144 Mass. 425; Soule v. New York & N. H R. Co. 24 Conn. 575; Whitford v. Panama R. Co. 23 N. Y. 465; Lyons v. Woodward, 49 Me. 29; Ohio & M. R. Co. V. Tindall, 13 Ind. 366; Hyatt v. Adams, 16 Mich. 180; Chicago & W. 1 R. Co. v. Schroeder, 18 Ill. App. 328; Edgar v. Costello, 14 S. C. 20. Wallace v. Wilmington & N. R. Co. (Del.) Dec. 13, 1889.

Pennsylvania Co. v. Bray, 125 Ind. 229.

Hulehan v. Green Bay, W. & St. P. R. Co. 68 Wis. 520.

Chicago & E. 1. R. Co. v. Holland, 11 West. Rep. 51, 122 Ill. 461.

し

least should be awarded for professional treatment.' In an action by a married woman for personal injuries, the damages should not include the expenses of medical attendance, and the loss of service and society sustained by the husband, for which he might bring a separate action. Evidence of expenses incurred in seeking a cure from personal injuries received through another's negligence is admissible in an action brought to recover damages for such injuries, but the question should be submitted to the jury whether or not they were necessary, reasonable and judicious expenditures within the rule that such expenditures are a proper ingredient in the damages to be awarded.' Damages impairing physical ability, and for pain and suffering unavoidably incurred, are recoverable in an action for negligence, even though the injury was increased by want of proper care and medical attention.*

The sum of $5,000 was awarded to a person for an injury occasioned by an accident by which he was thrown from a seat in a car, cutting a deep wound on his face, which would have been fatal by reason of lost blood except for prompt assistance, and which caused temporary, if not permanent, impairment of his eyesight and hearing, and much loss of time from his business, as well as a considerable expense for medical aid and the prosecution of the suit."

The fact that a person suffering injuries from the negligence of a railroad company over whose road he is traveling is afflicted with a disease of which he must ultimately die will not relieve the railroad company of responsibility for injuries which hasten his death, or by which it is proximately caused."

There is also a right in a husband or parent or master to recover for loss of service of the wife or child or servant, even if the injury caused death, up to the time of the death, caused by the

Feeney v. Long Island R. Co. 5 L. R. A. 544, 116 N. Y. 375, and cases referred to in note.

Ohio & M. R. Co. v. Crosby, 4 West. Rep. 464, 107 Ind. 32, citing Long v. Morrison, 14 Ind. 595; Fuller v. Naugatuck R. Co. 21 Conn. 557; Baltimore City Pass. R Co. v. Kemp, 61 Md. 74; Cregin v. Brooklyn C. R. Co. 75 N. Y. 192; 2 Wood, Railway Law, 1245.

Ilart v. Charlotte, C. & A. R. Co. 10 L. R. A. 794, 32 S. C. 427.

Cameron v. Vandergriff, 53 Ark. 381.

Newman v. Alabama G. 8. R. Co. 38 Fed. Rep. 819.

Louisville & N. R. Co. v. Jones, 83 Ala. 376.

carrier's negligence in inflicting injury.' Included in this recovery in the United States has been the expense occasioned by the illness of the wife, caused by the distress produced by the injury to the child, and expenses of illness and burial and mental anguish. The prospective loss, deducting the cost of support of the child, is to be recovered.*

A parent suing for the loss of services of a child from a carrier's negligence can recover, as expenses for medical attendance, only those actually incurred or immediately necessary. In an action for injuries to a child, future and contingent expenses for . medical attendance are recoverable only by the child, and not by a parent.'

The fact that one with whom an orphan is living has voluntarily assumed a parental relation toward him, but without adopting him, will not include, in a recovery by the infant for personal injuries, damages for diminution of his earning capacity during minority. In an action by a father for the death of his child, which fell into an exposed excavation, evidence that the father was unable to employ any one but his housekeeper to take care of his children is inadmissible on the question of contributory negligence.*

There is a distinction between a suit by a parent for injuries resulting in the death of a minor child and that of an adult son. The law gives the right to his services and the proceeds of his labor in the former; and the probability that the minor would

1 Ford v. Monroe, 20 Wend. 210; Kennard v. Burton, 25 Me. 39; Hall v. Hollander, 4 Barn. & C. 660; Hyatt v. Adams, 16 Mich. 180; Long v. Morrison, 14 Ind. 595.

Ford v. Monroe, 20 Wend. 210; Baltimore & O. R. Co. v. Noell, 32 Gratt. 394. 3 Sloan v. New York Cent. & H. R. R. Co. 1 Hun, 540; Filer v. New York Cent. R. Co. 49 N. Y. 47; Brooks v. Schwerin, 54 N. Y. 343.

Sykes v. Lawlor, 49 Cal. 236; Owen v. Brockschmidt, 54 Mo. 285; Pennsyl vania R. Co. v. Kelly, 31 Pa. 372; Sawyer v. Sauer, 10 Kan. 519.

Drew v. Sixth Ave. R. Co. 26 N. Y. 49; Telfer v. Northern R. Co. 30 N. J.
L. 188.

Cuming v. Brooklyn City R. Co. 12 Cent. Rep. 219, 109 N. Y. 95, citing
Concden v. Wright, 24 Wend. 429; Drew v. Sixth Ave. R. Co. 26 N. Y. 49;
Dixon v. Bell, 1 Stark. 287.

1 Cuming v. Brooklyn City R. Co. 12 Cent. Rep. 219, 109 N. Y. 95. As to recovery see Fordyce v. McCants, 4 L. R. A. 296, 51 Árk. 509; Sparks v. Kansas City, S. & M. R. Co. 31 Mo. App. 111; Rockford, R. I. & St. L. R. Co. v. Delaney, 82 Ill. 198; Myhan v. Louisiana Electric L. & P. Co. 7 L. R. A. 172, 41 La. Ann. 964.

Ft. Forth Street R. Co. v. Whitten, 74 Tex. 202.

Mayhew v. Burns, 103 Ind. 328.

remain in the service of the parent during minority, or would have permitted the parent to have the proceeds of his labor, is said to be unimportant. But this rule does not apply in the case of the suit for injuries resulting in the death of the son over twenty one years of age, the legal right to the services not existing in the latter case. In such a suit should be shown the reasonable expectation of benefit the parent would have received had the adult child not been killed, and in the absence of legal right to his services, this would depend upon the ability and will of such child to confer the benefit on the parent.'

2

For gross negligence indicating malice, punitive damages have been allowed. Upon the same principle the master could recover for loss of service by negligent injury to an employé."

It is said by Willis, J., that the law does not treat this cause of action as founded simply on the wrong, but it gives a person injured an election of proceeding by a form of action, either on contract or in tort. And the recovery will be governed by the rules peculiar to the form of action. Thus in tort all the parties liable need not be sued.' And where the action was in contract, where a special train had been chartered to convey a certain number of passengers to a particular place and bring them back the same day, no recovery was permitted, on a willful and malicious refusal to return the company, except for actual damage, and nothing allowed for disappointment, anxiety, or sense of injury." So in tort exemplary damages may be recovered."

The same rule as to exemplary damages for willful misconduct or gross negligence in the carrier or his employés, resulting in injury

'Dallas & W. R Co. v. Spicker, 61 Tex. 429. See also International & G. N. R. Co. v. Kindred, 57 Tex. 498; Winnt v. International & G. N. R. Co. 5 L. R. A. 172, 74 Tex. 32.

Klingman v. Holmes, 54 Mo. 304; Magee v. Holland, 27 N. J. L. 86.
Hall v. Hollander, 4 Burn. & C. 660.

Alton v. Midland R. Co. 34 L. J. C. P. 292.

'Brotherton v. Wood, 6 Moore, 141; Cregin v. Brooklyn C. R. Co. 75 N. Y. 152; Frink v. Potter, 17 Ill. 406, 411.

Pennsylvania R. Co. v. People, 31 Ohio St. 537.

Stockton v. Frey. 4 Gill, 406; Ansell v. Waterhouse, 2 Chitty, 1, 6 Maule & S. 385; Orange County Bank v. Brown, 3 Wend. 158.

Walsh v. Chicago, M. & St. P. R. Co. 42 Wis. 23; Hamlin v. Great Northern R. Co. 1 Hurlst. & N. 408; New Orleans, J. & G. N. R. Co. v. Hurst, 36 Miss. 660.

'Heirn v. McCaughan, 32 Miss. 17.

to a passenger, is applied as in actions for assault and battery, false imprisonment and the like, where the award is made not only by way of compensation to the sufferer, but also by way of punishment of the negligent wrong doer and protection to the public.'

The rules of pleading are the same as prevail in all courts in ordinary actions, and the same particularity and certainty are required in averment. Thus a count in an action for damages occasioned by a railroad accident, merely setting forth the facts giving rise to the relation of carrier and passenger, averring the duty to carry safely, and the violation thereof by suffering plaintiff's wife to be killed and plaintiff to be injured, but not setting forth any of the facts constituting the violation of duty,—is fatally defective in that it merely states a conclusion of law.' Where there is a special contract varying the liability of a carrier, an action against it is properly brought thereon, instead of on its general liability. But an allegation that the plaintiff was subject to great inconvenience and injury is sufficient to let in proof of illness caused by exposure by reason of not being furnished with sufficient bed clothing on the steamer."

1 Hart v. Charlotte, C. & A. R. Co. 10 L. R. A. 794, 32 S. C. 427, 3 Suth. Dam. 270 et seq; Quinn v. South Carolina R. Co. 29 S. C. 386; Voitz v. Blackman, 64 N. Y. 440; Harmon v. Columbia & G. R. Co. 28 S. C. 405; Storm v. Green, 51 Miss. 103; Memphis & C. R. Co. v. Whitfield, 44 Miss. 466; Smailey v. Smulley, 81 Ill. 70; Bradley v. Morris, 44 Ñ. C. 395: Mobile & M. R. Co. v. Ashcraft, 48 Ala. 15; Robinson v. Burton, 5 Harr. (Del.) 335; Fleet v. Hollenkemp, 13 B. Mon. 219; Raynor v. Nims, 37 Mich, 34; Wade v. Thayer, 40 Cal. 578; Shaw v. Brown, 41 Tex. 446; Kolb v. Bankhead, 18 Tex. 228; Me Williams v. Bragg, 3 Wis. 424; Titus v. Corkins, 21 Kan. 722; McBride v. McLaughlin, 5 Watts, 375; Fox v. Stevens, 13 Minn. 272; Baltimore & Y. Turnp. Co. v. Boone, 45 Md. 344; National Bank of Chester v. Atlantic & C. A. L. R. Co. 25 S. C. 222; Tillotson v. Cheetham, 3 Jolins. 56; King v. Root, 4 Wend. 113; Tifft v. Culver, 3 Hill, 180; Cook v. Ellis, 6 Hill, 466; Burr v. Burr, 7 Hill, 207; Taylor v. Church, 8 N. Y. 460; Hunt v. Bennett, 19 N. Y. 174; Millard v. Brown, 35 N. Y. 297; Allaback v. Utt, 51 N. Y. 651; Dibble v. Morris, 26 Coun. 416; Goodspeed v. East Haddam Bank, 22 Conn. 530; Palmer v. Charlotte, C. & A. R. Co. 3 S. C. 580; Ellsworth v. Potter, 41 Vt. 685; Hoadley v. Watson, 45 Vt. 289; Taylor v. Grand Trunk R. Co. 48 N. H. 320; Magee v. Holland, 27 N. J. L. 86; Elbin v. Wilson, 33 Md. 135; Young v. Mertens, 27 Md. 114; Me Williams v. Hoban, 42 Md. 56; Miller v. Kirby, 74 Ill. 242; Stillwell v. Barnett, 60 Ill. 210; Kingman v. Holmes, 54 Mo. 304; Kennedy v. North Missouri R. Co. 36 Mo. 351. Derino v. Central Vermont R. Co. 63 Vt. 98.

Boaz v. Central R. Co. 87 Ga. 463.

4Stockton v. Bishop, 45 U. S. 4 How. 155, 11 L. ed. 918.