best-considered cases in this country, that mental anguish, which is the natural result of the injury, may be taken into the estimate of the damages to the party injured.

The connection in which this assumption is made, might lead to the inference that it applied to actions brought by survivors for injuries done to their deceased ancestor, relative or next of kin; but upon reference to the authorities cited, it will be that the plaintiffs in those cases were the persons sustaining the bodily harm, and in estimating their damages their mental suffering constituted an element of compensation. 1 Cush. 451; 10 Barb. 623.

To have instructed the jury to allow "what they considered a reasonable compensation,” would, in the language of the Supreme Court of Pennsylvania, "be giving the jury discretionary power, without stint or limit, highly dangerous to the rights of the defendant, and leaving them without any rule whatever." Rose v. Story, 1 Barr. 190, 197. In the case of the Pennsylvania Railroad Co. v. Kelly, 7 Casey, 372, the same learned court say:

Generally speaking, the influence of the court, in this class of cases, should be expected to restrain those excesses into which juries are apt to run. Wild verdicts are frequently rendered. And the tendency, in modern times, undoubtedly is to excessive damages, especially where they are to be assessed against corporations." Ibid. 379; The Pennsylvania Railroad Co. v. Rebe et ux, 33 Penn. St. 318, 330.

The last objection to the second instruction granted, is that it limits the mother to compensation for loss of her son during his minority only.

To submit to a jury the value of a life, without limit as to years, would have been to leave them to speculate upon its duration without any basis of calculation.

The law entitles the mother to the services of her child during his minority only (the father being dead); beyond this, the chances of survivorship, his ability or willingness to support her, are matters of conjecture too vague to enter into an estimate of damages merely compensatory. According to the appellant's theory, the mother and the son are supposed to live on together to an indefinite age; the one craving for sympathy and support, the other rendering reverence, obedience and protection. Such pictures of filial piety are inestimable moral examples, beautiful to contemplate, but the law has no standard by which to measure their loss.

This court, being of opinion that the several instructions granted by the court below were as favorable to the plaintiff (appellant) as she was entitled to, and that she was not prejudiced by the rejection of the prayers submitted on her part, finds no error in the rulings of the court below, in the first appeal, and will affirm the judgment. Judgment affirmed.

The first proposition maintained in this case is very obvious upon principle as well as the decided cases. Where such an amount of passenger traffic as is now done by railways is confided to agents operating by means of so powerful and dangerous an element as steam, no state or country could fairly justify any rule or responsibility except that of the utmost practicable watchfulness, skill, and ability. And no doubt these considerations, connected with the nature and ex

NOTES.

tent of the business of railways, will justify a demand that their business shall be so conducted as to give fair and just opportunity for the conduct of other legitimate business, more or less interfering with that of the company, with reasonable security. The rule, as stated in some of the earlier cases, in regard to railways, is that they should be so conducted, with reference to other business interests, that all may have proper scope and reasonable opportunity to escape detriment; the same as if the company owned both interests, and desired the success of both. Quimby v. Vermont Central Railw. Co., 23 Vt. R. 387. This rule, as we have often attempted to show, will apply with great stringency to any business which is more than commonly liable to destroy life or property. Prudent men always measure their care and diligence by the exigencies of the business and the occasion. Hence it was held, in an early case in California (Wilson v. Cunningham, 3 Cal. R. 241), that where the track of a railway intersects the thoroughfares of a city the companies are bound to exercise extraordinary care not to injure persons in the streets.

Accordingly, in the present case, it is probably true, as suggested by the court, that where a company push a train of cars backwards through the streets of a city, they would be bound to have a servant so stationed that he could look out for persons or property exposed to injury, and who could either himself stop the train or give signal to some one for that purpose in time to prevent collision and damage. But this is not a question of law altogether, and would ordinarily have to be passed upon by the jury. We have discussed this general question of diligence and negligence, both as to the principles involved and the cases bearing upon it, in Taylor v. Briggs, 28 Vt. R. 180, more in detail than would be proper here.

In regard to the effect of general negligence in the party to whom the injury occurs, remotely exposing him to the injury, but forming no part of the proximate cause of the same, the cases are numerous, and at the present day reasonably concurrent in the result, that unless the want of due care on the part of the party injured, or of those responsible for the conduct of such part, contributed directly to the production of the injury, the other party will be responsible, provided his negligence was the efficient cause of the injury, and, with the exercise of proper care, he might have avoided inflicting it, notwithstanding the general want of proper watchfulness by the party injured. The cases are too numerous upon this to be quoted in detail. Davies v. Mann, 10. M. & W. 546; The AmeriIllidge v. Goodwin, 5 C. & P. 190, are the leading English cases.

can cases will be found, in almost all the states, to have maintained the same view. Trow v. Vermont Central Railw. Co., 24 Vt. R. 487; Isbell v. N. Y. & N. H. R. R. Co., 27 Conn. R. 393; Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. 172; C. C. & C. R. R. Co. v. Elliott, 4 Id. 474. The rule is very broadly stated in New Haven Steamboat & Transportation Co. v. Vanderbilt, 16 Conn. R. 421.

And it seems that the fact that the person or property, as cattle, are trespassing at the time the injury occurs, will not subject them to damage without redress, provided there is no such wrong on the part of the person, or of the owner of the property, as to contribute directly to the injury, so that the other party

might not, with ordinary care, have avoided it. Isbell v. N. Y. & N. H. R. R. Co., supra; Daley v. Norwich & Worcester R. R. Co., 26 Conn. R. 591; Brown v. Lynn, 31 Penn. St. 510; C. C. & C. R. R. Co. v. Terry, 8 Ohio St., 570. But where the negligence of the party injured, in any manner or to any extent, contributed directly to the production of the injury, however slightly, there can be no recovery. Witherly v. Regent's Canal Co., 12 C. B. N. S. 2; s. c. 3 F. & F. 61. So in a very late English case, where the party finding the gates at a crossing negligently closed in the night time, after every exertion to find some servant of the company to open them, necessarily opened the gates himself in order to pursue his journey, and where, without any fault on his part, the gate swung back by its own weight and struck the horse, which became unmanageable, whereby the plaintiff was thrown out of the carriage and injured, it was held he could not recover, inasmuch as he had no right to open the gates himself, and the injury was produced by his own wrongful act in doing. so. Wyatt v. Great Western Railw. Co., 11 Jur. N. S. 825.

The question of damages is one in regard to which, for a time, the cases seemed to vacillate somewhat upon the point whether the manner of the infliction of the injury and the shock to the feelings of those near relatives for whose benefit the action was brought, could be taken into the account. It seems very clear that where the suit is for the benefit of the very person sustaining the injury, there could be no question that any shock or injury to his feelings, any mental suffering, which was the direct consequence of the injury, should be considered in estimating damages. Such suffering is a part of the necessary labor to be borne by the party injured, in consequence of the injury. Canning v. Williamstown, 1 Cush. 451; Morse v. Auburn & Syr. Railw. Co., 10 Barb. 621. But in estimating damages to other parties, affected incidentally by the death of the party injured, it seems now pretty generally conceded, that no account of wounded feelings can be taken. And this, upon the whole, seems but just and reasonable. For there would be no uniformity in cases of this kind if the jury were allowed to go into considerations so remote and uncertain. Penn. Railw. Co. v. McCloskey, 23 Penn. St. 526. So in North Penn. Railw. Co. v. Robinson, 44 Penn. St. 175, it is said the value of the life lost, estimated by a pecuniary standard, is what is to be recovered.

There is one qualification in regard to the extent to which damages were allowed to be given by the jury in the principal case which has not generally been adverted to, and which seems to us somewhat liable to misconstruction. We refer to the restriction limiting prospective damages to the minority of the child. It has been decided that a father may recover pecuniary damages for the death of a son twenty-seven years of age, unmarried, and who has been accustomed to make occasional presents to his parents. Dalton v. South Eastern Railw. Co., 4 C. B. N. S. 296. And it was here held, as it has often been in other cases, that the jury could not give damages by way of compensating the father for the expenses of his son's funeral or for procuring family mourning. So also Franklin v. South Eastern Railw. Co., 3 H. & N. 211; Blake v. Midland Railw. Co., 18 Q. B. 93. It was lately held in the Exchequer Chamber (Pym v. Great Northern Railw. Co., 10 Jur. N. S. 199), that where, in consequence of

the death of the father, his income was, by direction of his will, unequally distributed among his widow and children, the eldest son taking most of it, that damages might be recovered for the benefit of the whole class on that ground, some of the children being thereby deprived of an expected support, had the life of the father continued. In the very late English case of Boulter v. Webster, 13 W. R. 289, the Court of Queen's Bench adhered to the rule that no damages could be awarded to the parent by reason of the death of his child, on account of the expenses of the funeral.

NOTE II. TO § 129, ante, p. 506.

LIABILITY FOR ACT OF THE AGENT OR SERVANT OF THE CONTRACTOR.

WHERE one gratuitously permits another to use a shed to do a piece of carpenter work, it is a revocable license, and has no analogy to a bailment of personal property, and the only duty imposed upon such person is that he should not be guilty of negligence in the use of the shed. Therefore, where a servant of such person, in the course of the work, dropped a match with which he had lighted his pipe, and thereby set fire to the shed, it was held the defendant was not liable for the damage, notwithstanding the jury found it occurred from the negligent act of the defendant's workman. But if the negligence of the workman had been in a matter within the range of his employment, the defendant would have been responsible. Williams v. Jones, 3 H. & C. 602; s. c. 11 Jur. N. S. 843; Woodman v. Joiner, 10 Jur. N. S. 852; Bartlett v. Baker, 34 L. J. Exch. 8; s. c. 3 H. & C. 153; Blake v. Thirst, 2 H. & C. 20.

Where a railway company was empowered by act of parliament to build a bridge across a navigable river, but were to do it so as not to detain vessels longer than while persons and teams ready to cross the bridge were passing over, during the construction of the work by a contractor, by some defect of construction the bridge could not be raised, and the plaintiff's vessel was detained, it was held the company were responsible. Hole v. Sittingbourne & Sheerness Railw., H. & N. 488.

6

A person employing another to do a lawful act, is presumed, in the absence of evidence to the contrary, to employ him to do it in a lawful and reasonable manner; and therefore, unless the parties stand in the position of master and servant, the employer is not responsible for damages occasioned by the negligent mode in which the work is done. Butler v. Hunter, 7 H. & N. 826, S. P.

NOTE III. TO § 76, ante, p. 298.

1. Question of jurisdiction of the subject- | 3. The mode of estimating compensation, matter of controversy. where one street railway company use the track of another company.

2. The right of way, where different companies

run upon the same track.

As passenger railways now exist in most of the cities and large towns in the country, and the question will often arise in regard to compensation to be paid by one company for the use of the track of another company, we have inserted our report in an important case in Massachusetts, which was acquiesced in by the parties, and made the basis of adjustment between them without an appeal to the court on exceptions. Some other questions are also discussed briefly.

The Broadway Railroad Company v. The Metropolitan Railroad Company. I. The petitioners claimed from the first, and throughout the hearing, that neither the court nor the commissioners had any legitimate jurisdiction of the matters at issue between the parties, and demanded of the commissioners a formal report of our determination upon that question. This exception to the jurisdiction is based mainly upon the terms upon which the Metropolitan Railroad Company were, by the City of Boston, allowed to lay their track, so as to complete the circuit (as it is familiarly called), the compensation for the use of which is now in question. This order was obtained in pursuance of the petition of the Metropolitan Railroad Company, with the consent and concurrence of the Broadway Railroad Company, and in consummation of an arrangement between those who represented the respective companies before the legislature, and for the purpose of compromising the controversy then going forward between them, before the legislature, in regard to the right to build and use this circuit.

It was arranged that the Metropolitan Company should take such addition to their charter as was requisite for the purpose, and go forward and obtain the location of their track upon this circuit, and construct the same, with the expectation and understanding between those who thus represented the interests of the two companies, that the Broadway Company would be allowed to run their cars upon the circuit upon such terms as might be agreed upon between the parties, or settled by the proper tribunals, in case of disagreement. Nothing was said at this time by either party, in regard to the subject of toll or compensation to the Metropolitan Company for such use of their track.

Upon the granting of the order by the city government for the location of the track upon this circuit the following condition was annexed to such order: "This location is granted under the further express proviso and condition, that the Board of Aldermen reserve the right to permit the Middlesex Railroad Company and any other horse railroad company to run cars over the track, so located by authority of this order, for such compensation to be paid to the Metropolitan Railroad Company, and upon such terms and conditions as the Board of Aldermen for the time being shall prescribe."