Florida Central & Peninsular Railroad v. Foxworth , 41 Fla. 1 ( 1899 )

Carter, J.:

I. While we do not commend the practice, we think it is permissible in common law pleading to refer to, and thereby make a part of one count, the whole or a part of the allegations of another count in the same declaration. To be effective, however, the reference should be definite and certain- 1 Chitty’s Pleadings (16th ed.), p. 429; Dent’s Admr. v. Scott, 3 H. & J. (Md.) 28; Freeland v. McCullough, 1 Den. (N. Y.) 414, S. C. 43 Am. Dec. 685; Crookshank v. Gray, 20 Johns. (N. Y.) 344. This rule being fully complied with in this case, the first assignment of error fails-

II. The question propounded to the witness Dean was objected to in the trial court upon one ground only; that it was in form argumentative. In this court it is argued that the question was objectionable because it sought to obtain a mere opinion from the witness. We can not consider this objection because we are confined to those insisted upon in the trial court. Tuten v. Gazan 18 Fla. 751; Jacksonville, Tampa & Key West Ry. Co. v. Peninsular Land. T. & M. Co., 27 Fla. 1, 9 South. Rep. 661. It is not suggested by appellant in what respect the question is argumentative, nor do we perceive that it is, consequently the second assignment of error is not well taken.

III. In considering other assignments of error it will be necessary for us to determine whether, in this case, contributory negligence on the part of the deceased will operate as a bar to plaintiff’s recovery, or merely in diminution or reduction of damages. In Louisville & Nashville R. R. Co. v. Yniestra, 21 Fla. 700, it was held that, by the common law, a plaintiff could not recover damages for personal injuries caused by the joint negligence of himself and the defendant; that in such cases plaintiff could not recover upon proof that the injuries were essentially caused by the negligence of a defendant ; but only by showing that his own'negligence did not contribute in any degree to produce the injury, received by him. The same principle was stated and applied in Florida Southern Ry. Co. v. Hurst, 30 Fla. 1, 11 South. Rep. 506. In the former case the Chief Justice suggested that this rule was inequitable and unjust, and that legislation was needed apportioning the damages where the negligence of the plaintiff and the defendant both contributed to the injury. At the next session of the legislature this suggestion was acted upon, and Chap. 3744, approved June 7, 1887, entitled “An Act to apportion the damages in actions against railway companies by persons and employes, and to provide for such recovery of damages against said railway company by its employes,” was enacted, whereby in section x it was provided: “That no person shall recover damages from a railroad company for injury to himself or his property when the same is done by his consent, or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover but the damages shall be diminished by the jury trying the case in proportion to the amount of default attributable to him.” Chap. 4071, entitled “An Act defining the liabilities of railroad companies in certain cases,” approved May 4, 1891, provides by section 2, that “no person shall recover damages from a railroad company for injury to himself or his property where the same is done by his consent, or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished or increased by the jury in proportion to the amount of default attributable to him,” and, by section 4, “that Chap. 3744, Laws of Florida, approved June 7, 1887, be and the same is hereby repealed.” This suit was instituted April 23, 1891, by a widow to recover damages for the alleged negligent homicide of her hus band in December, 1890, and the trial was had in November, 1891. Chap. 3439, approved February 28, 1883, authorizing suits of this character to be brought, is entitled “An Act fixing the liability of persons and corporations for damages resulting from the death of any one, caused by the wrongful act, negligence, carelessness or default of such persons or corporations, or the agent? thereof,” and provides, in section 1, that “whenever the death of any person in this State shall be caused by the wrongful act, negligence, carelessness or default of any individual or individuals, or by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, negligence, carelessness or default of any agent of any corporation when acting in his capacity of agent of such corporation, and the act, negligence, carelessness or default is such as would, if death had not ensued, have entitled the party injured thereby to maintain an action for damages in respect thereof, then, and in every such case, the person or persons who, or corporation which, would have been liable in damages, if death had not ensued, shall be liable to an action for damages, notwithstanding the death shall have been caused, under such circumstances as make it in law, amount to a felony;” and, in section 2, “every such action shall be brought by and in the name of the widow or husband, as the case may be, and where there is neither a widow or husband surviving the deceased, then the minor child or children may maintain an action; and where there is neither a widow or husband, or minor child or children, then the action may be maintained by any person or persons dependent on such person killed for a support, and where there is neither of the above class of persons to sue, then the action may be maintained by the executor or administrator, as the case may be, of the person so killed; and in every such action the jury shall give such damages as the party or parties entitled to sue may have sustained by reason of the death of the party killed; provided, that any action instituted under this act by or in behalf of a person or persons-under twenty-one years of age, shall be brought by and in the name of a next friend.”

It is here contended, 1st, that neither the provisions of section 1, Chap. 3744, nor of section 2, Chap. 4071, apply to.this case, because they by express terms are applicable only to cases where the injured party is himself the plaintiff, and have no reference to cases where death has ensued and other parties are maintaining the action. It is admitted, however, that if death had not ensued, and the action was being maintained by plaintiff’s husband, his contributory negligence, unless it was the sole proximate cause of his injury, would not bar his right of action since the enactment of these statutes, but would require the reduction or diminution of the damages to be recovered by him. As these statutes declare and limit the right of the deceased, had he lived, to recover damages for the injuries received by him, it is clear that they apply to actions brought by the widow under the provisions of Chap. 3439, because she is thereby authorized to maintain an action only where the wrongful “act, negligence, carelessness or default is such, as would, if death had not ensued, have entitled the party-injured thereby to maintain an action for damages in respect thereof.” Duval v. Hunt, 34 Fla. 85, 15 South. Rep. 876. 2nd. That Chap. 3744 was expressy repealed by Chap. 4071, which became effective after the injury to plaintiff’s husband, but before the trial in the Circuit Court- It is admitted by counsel for appellant that the language of section 1, Chap. 3744, is identical with that of section 2, Chap. 4071. This is not literally true, as will be observed by a comparison of the two- sections, but we think that Chap. 4071, which expressly repeals Chap. 3744, re-enacts substantially the provisions of section 1 of the latter act, and under a well-settled rule of construction, the provisions of that section are not thereby destroyed or interrupted in their operation, but continue in full force. Forbes v. Board of Health of Escambia Co., 27 Fla. 189, 9 South. Rep. 446.

IV. It is urged that the first instruction given at plaintiff’s request was erroneous, because, 1st, the use of the term “gross negligence” meant that the conduct of defendant in doing the acts constituting the “gross negligence” defined were wanton and reckless, and that the injury was occasioned by the sole negligence or fault of the defendant, and was, therefore, inapplicable to any evidence in the case. In other charges given by the court to the jury they were instructed not to give plaintiff exemplary damages, and that they must apportion the damages, in case they found contributory negligence on the part of plaintiff’s intestate; from which it - was clearly made to appear to the jury that the term was not used in the sense claimed by appellant. In Florida Southern Ry. Co. v. Hurst, 30 Fla. 1, 11 South. Rep. 506, we held that the use of the expression “gross negligence,” in a charge to a jury, does not of itself define, nor does it include, only that extreme degree of negligence which is wanton or reckless of its injurious consequences, and to which the defense of contributory negligence does not obtain and can not be held as having been intended to submit the case to a jury for consideration as one of that character, and particularly so where other charges have recognized contributory negligence as a defense to the action. 2nd. It is also insisted that the charge assumes certain facts as proven, which were disputed in evidence, vis: that there was no brakeman on the rear of the train; no flagman at the crossing, and that the train was backing across the main thoroughfare of a village. We do not think the charge is subject to that construction. It merely asserts an abstract legal proposition, without attempting to apply it to the facts of the particular case on trial, leaving it to the jury to make the application to the facts as found by them. There was evidence tending- to show that there was no brakeman on the rear of the train, nor flagman at the crossing, and that the train was backing across the main thoroughfare of a village, but no intimation from the court that this evidence was true, or that these facts were proven. 3rd. It is admitted that the proposition of law asserted in the charge is correct, but criticised as being inapplicable to the evidence in the case on trial. Giving to the word “gross” the meaning before stated, we think the charge was substantially correct as a legal proposition. The principle, in almost identical language, was held in Cooper v. Lake Shore & M. S. Ry. Co., 66 Mich. 261, 33 N. W. Rep. 306, to be correct; it finds some support in Florida Central & Peninsular R. R Co. v. Williams, 37 Fla. 406, text 425, 20 South. Rep. 558, and the principle is sustained by many authorities. 2 Wood on Railroads, §323; 3 Lawson’s Rights, Remedies & Practice, §1187; 2 Shearman & Redfield on Negligence, §471; Patterson’s Railway Accident Law, §171; Kentucky Central Railway Co. v. Smith, 93 Ky. 449, 20 S. W. Rep. 392, 18 L. R. A. 63 and note; Beach or Contributory Negligence, §194. And we think the charge was applicable to the evidence in the case. There was testimony that the deceased was struck by a backing train while attempting to cross defendant’s track laid in and along the only prominent street in the village of Callahan, within a few feet of, and practically at, a public crossing; that the train was running at a speed of at least five miles an'hour; that the engine bell was not rung, no flagman stationed at the crossing, nor lookoul upon the rear of the train, and that the backing cars were cut loose from the engine before the collision.

V. The third instruction for plaintiff also contained a' correct abstract proposition, and the court did not err in giving it. It has been approved in Norfolk & Western R. R. Co. v. Burge, 84 Va. 63, 4 S. E. Rep. 21, and the same principle is substantially stated in Florida Central & Peninsular R. R. Co. v. Williams, 37 Fla. 406, 20 South. Rep. 558, in the following language: “Where steam railroads are laid and operated along or across the streets of populous towns or communities where numerous people of all conditions and descriptions are aggregated or likely to be, it is their duty to operate the dangerous implements used by them with the utmost degree of care, strictly commensurate with the circumstances by which they are there surrounded, in order to avoid injury to others.” We do not appreciate the force of appellant’s contention that it is exempt from the principles of law embraced in these instructions, because its road was in operation before the village came into existence. Its duty in respect to operating its trains is necessarily dictated and measured by the exigencies of the occasion, or in the light of the condition- of things at the place where, and time when, the accident happened. Bucki v. Cone, 25 Fla. 1, 6 South. Rep. 160; Florida Central & Peninsular R. R. Co. v. Williams, 37 Fla. 406, 20 South. Rep. 558. The building up of a town along and on its line, causing the operation of its road to be attended with greater danger to others, imposed a duty upon appellant to exercise such additional care as the circumstances reasonably demanded.

VI. The court erred in giving the fourth instruction, for plaintiff. The court has no right to invade the prov ince of the jury, by assuming as proven facts, matters which are in dispute upon the trial. This instruction informed them that “if pushing a train increased the risk of plaintiff’s husband, it was negligence on the part of the defendant not to give timely notice of what he zvas doing,’' thereby assuming that defendant did not give timely notice, and confining the jury to an investigation of one question only; whether pushing the train increased the risk of the deceased. The defendant contended that it did give timely notice by ringing the engine bell, and many witnesses testified that the bell did ring. Plaintiff’s testimony was to the effect that the bell did not ring, and the court should not have assumed by this charge that timely notice was not given. Louisville & Nashville R. R. Co. v. Yniestra, 21 Fla. 700; Ashmead v. Wilson, 22 Fla. 255; Doyle v. State, 39 Fla. 155, 22 South. Rep. 272.

VII. Several objections presented, and most earnestly insisted upon by appellant to the fifth instruction given at plaintiff’s request, are fully and completely answered by the statement that the provisions of section 1, Chap. 3744, act of 1887, apply to this case; and that under these provisions contributory negligence is not a complete defense in bar, but operates only in reduction or diminution of damages. The plaintiff, under these provisions, is entitled to recover if defendant’s negligence was one of the proximate contributing causes to the injury of the deceased, notwithstanding the deceased’s negligence was greater than that of the defendant. This statute does not introduce into this State the Illinois doctrine of comparative negligence, nor that prevailing in Tennessee, nor does it introduce in its entirety that prevailing in the State of Georgia; consequently, the decisions cited from those States are inapplicable to this case, upon a proper construction of our statutes. It is true that our statute is taken almost literally from similar provisions in the Georgia Code (Duval v. Hunt, 34 Fla. 85, 15 So. Rep. 876; Florida Central & Peninsular R. R. Co. v. Williams, 37 Fla. 406, 20 South. Rep. 558); but these provisions of the Georgia Code are construed in connection with, and are limited by, another provision of the same Code which was omitted from our statute, viz: “If the plaintiff by ordinary care could have avoided the injury to himself caused by the defendant’s negligence, he can not recover at all.” Macon & Western R. R. Co. v. Johnson, 38 Ga. 409; Savannah, Florida & Western Ry. Co. v. Stewart, 71 Ga. 427. The plain construction of bur statute, in the absence of a provision similar to the one quoted, is that plaintiff is not debarred from recovering unless the injury was caused entirely by his own negligence, or by his consent; but that in all cases where the negligence of the plaintiff and defendant produces the injury, the plaintiff’s damages are to be diminished by the jury in proportion to the default attributable to him. This being the proper construction of the statute it follows that the court committed no error in giving the first paragraph of its own charge, or in refusing the thirteenth and seventeenth instructions requested by defendant.

2. The eighth instruction given on behalf of plaintiff was erroneous in using the word “remotely.” The failure to exercise ordinary care and prudence might in some instances contribute remotely to an injury, while in others it might not only contribute directly, but very greatly, to the injury. The degree of negligence attributable to the plaintiff is a question to be considered by the jury in assessing damages, and where the facts are disputed, as in this case, the court should not assume in its instructions that the negligence of the deceased, if any, contributed only remotely to the injury. In other respects the instruction is correct, and the word “remotely” should be eliminated upon another trial.

3. The appellant contends that the fifth instruction given at plaintiff’s request is erroneous, because it held defendant liable for failure to use proper means to avoid the accident after it saw, or, in the exercise of due care, should have seen, the peril surrounding the deceased or defendant’s railroad track. It is admitted that the charge correctly stated the law applicable in this respect, to public crossings over défendant’s track, but it is insisted that the injury occurred below the crossing, that .deceased was a trespasser, that defendant was under no obligation to keep a lookout for trespassers, and can only be held liable for a failure to exercise care in avoiding injuries to trespassers when and after it actually sees the trespasser on its track. According to the testimony, the collision occurred within fifty feet of the public crossing; by some of the witnesses it occurred within ten feet thereof, and all the evidence tended to show that the deceased was injured while endeavoring to cross the track where it was laid in the most prominent street in the village. A person is not a trespasser who crosses a street at a place other than a public crossing, or the intersection of other streets. Brunswick & W. R. Co. v. Gibson, 97 Ga. 489, 25 S. E. Rep. 484, 5 Am. & Eng. R. R. Cas. (n. s.) 441. And if the injury occurred so near a public crossing that the means required to be adopted by those operating the train to enable a traveler to cross in safety at the public crossing, if carried out, would have enabled the person injured to cross in safety at the place of the accident, we think the liability of the defendant will be measured by the legal principles applicable to public crossings. Baltimore & Ohio R. Co. v. Owings, 65 Md. 502, 5 Atl. Rep. 329, 28 Am. & Eng. R. R. Cas. 639. Whatever may be the rule as to the duty of a railroad company to keep a lookout for trespassers upon its track in general, we hold that in the streets of towns and villages, and in the immediate vicinity of public crossings, the company is bound to keep a lookout when making flying switches, or backing cars by the “kicking back” process, and that when it is apparent, or when in the exercise of reasonable diligence commensurate with the surroundings it should be apparent, to the company that a person on its track or about to get on its track under such circumstances, is unaware of his danger or can not get out of the way, it becomes the duty of the company to use such precautions by warnings, applying brakes or otherwise, as may be reasonably necessary to avoid the injury; for, as said by this court in Florida Central & Peninsular R. R. Co. v. Williams, 37 Fla. 406, 20 South. Rep. 558, “though the plaintiff may have been guilty of contributory negligence in stepping upon the track immediately in front of a moving engine, yet the defendant,” under the act of 1887, “is still liable for the injury if it could have prevented it by the exercise pf reasonable and proper care after the discovery of the plaintiff’s negligent act, or if it could have discovered it by the exercise of such care, in time to avoid the injury.” Norfolk & W. R. Co. v. Burge, 84 Va. 63, 4 S. E. Rep. 21; Patton v. East Tennessee, Va. & Ga. R. Co., 89 Tenn. 370, 15 S. W. Rep. 919, 12 L. R. A. 184.

4. From what has been said it is apparent that the court did not err in refusing the fifth instruction requested by the defendant. True, it was the duty of the deceased to look and listen before crossing defendant’s track, and if he failed to do so it was negligence on his part contributing to his injury, yet if the defendant, by failure to ring a bell, blow a signal or station a lookout, directly contributed to the injury, it would be liable to damages, diminished in proportion to deceased’s contributory negligence. If, however, the failure of defendant to ring the bell, blow the signal or- station a lookout, though negligent omissions on its part, did not directly or proximately contribute to deceased’s injury, the defendant would not be liable.

VII. There was no 'error in giving the eleventh instruction requested by plaintiff. In the preceding paragraph we have considered all objections suggested by appellant, except the one which claims that defendant’s duty under the circumstances of this case would have been completely performed by ringing the bell in the manner indicated by this instruction. The courts have frequently condemned the dangerous practice of “kicking cars,” or making flying switches, in populous localities and near crossings, and have almost uniformly held that the increased hazard of these practices over the ordinary manner of railway operation imposes upon the company a duty to station a lookout upon the rear of the cars, the equivalent of which is not accomplished by ringing the engine bell. 2 Wood on Railroads, §323, p. 1517; 3 Lawson’s Rights, Remedies & Practice, §1187; 2 Shearman & Redfield on Negligence, §471; Beach on Contributory Negligence, §194. This precaution is much more effective than the simple ringing of a bell, and if -persons are injured on or near crossings, or other places much frequented, where by the exercise of this precaution the injury could have been avoided, the company will be liable. If it be true, as contended by plaintiff, that the deceased when injured was crossing defendant’s track, oblivious of the approach of a train, holding an open umbrella in such a manner as to obstruct his view of an approaching train, and a lookout stationed upon the rear of the car, in the exercise of reasonable diligence could and would have discovered the plaintiff’s perilous situation in time to avert the collision by warnings, application of brakes or otherwise, then the failure to put a lookout on the rear of such train was negligence on defendant’s part, contributing directly to the injury, and the plaintiff would be entitled to recover; the jury diminishing the damages in proportion to the default attributable to the deceased. Florida Central & Peninsular R. R. Co. v. Williams, 37 Fla. 406, 20 South. Rep. 558.

IX. The tenth instruction requested by defendant was properly refused. It is argued that the statutes then in force, section 33, p. 287 McClellan’s Digest, only required defendant to ring its engine bell before crossing the streets of an incorporated town. This statute does not purport to define defendant’s duty in this respect outside of incorporated towns, but leaves that to be determined upon common law principles. Independently of statute it is the duty of those in charge of a train to give notice of their approach at all points of known or reasonably apprehended danger. This follows from the general rule requiring them to measure their precautions by, and to make them reasonably commensurate with, the conditions and circumstances by which they are surrounded. Chicago & Alton R. R. Co. v. Dillon, 123 Ill. 570, 15 N. E. Rep. 181, 32 Am. & Eng. R. R. Cas. 1; Winstanley v. Chicago, Milwaukee & St. Paul Ry. Co., 72 Wis. 375, 39 N. W. Rep. 856, 35 Am. & Eng. R. R. Cas. 370; Loucks v. Chicago, Milwaukee & St. Paul Ry. Co., 31 Minn. 526, 18 N. W. Rep. 651, 19 Am. & Eng. R. R. Cas. 305; Hinkle v. Richmond & Danville R. R. Co., 109 N. C. 472, 13 S. E. Rep. 884; Durkee v. Delaware & Hudson Canal Co., 88 Hun. 471; Delaware, Lackawana & Western R. R. Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. Rep. 569; Louisville & Nashville R. R. Co. v. Commonwealth, 13 Bush, 388; Gates v. B. C. R. & M. R. Co., 39 Iowa, 45.

X. By the common law no damages were recoverable for the death of a human being. We are, therefore, without precedents as to the measure of damages in cases of this character, other than those based upon the construction of statutes varying in their language. A great majority of the courts of this country have held that in actions of this character the loss of the society of the deceased can not be considered in estimating damages. The basis for this array of precedents is the opinion of the English Court, construing Lord Campbell’s Act, in Blake v. Midland Counties Railway Company, 16 Jur. 562. We have examined a multitude of these cases, and in none of them have we found any reason given for disallowing this element, except in Pennsylvania R. R. Co. v. Zebe, 33 Pa. St. 318, and the decision in this case is confessedly based upon, and the reasons given are practically those of, the English case. In the Pennsylvania case the main question considered was whether damages for mental suffering or wounded feelings could be allowed, and incidentally the court held that loss of society falls within the same category with mental suffering and should be disallowed. The English case, though confined entirely to the question of mental suffering, has been generally cited as authority for excluding damages for loss of society and protection of a husband. The reasoning of that decision is based upon compensating the families of persons killed by accident,” four propositions: first, the title of the act, “An Act for not “for solacing their wounded feelings;” second, the provision requiring the jury to divide between the persons, for whose benefit the action was brought, the amount recovered in such shares as they thought proper, and the impracticability of estimating and dividing the damages for mental anguish of and between the numerous persons for whose benefit the action is brought; third, because the language of the act seemed more appropriate to a loss of which some estimate might be made by calculation, than an indefinite sum, independent of all pecuniary estimate, to soothe the feelings; and, fourth, “if a jury were to proceed to estimate the relative degrees óf mental anguish of a widow and twelve children from the death of the father of the family, a serious danger might arise of damages being given to the ruin of the defendants.” In the Pennsylvania case it is said that such damages are speculative and fanciful, and it is there asserted that the great merit of the English rule is that “it is one of equality, compensating the rich and the poor, the refined and the cultivated, and those less so, by the simple standard of pecuniary loss.” While our statute has several features in common with Lord Campbell’s Act, it is essentially different in many important particulars. Unlike the English statute, it is not one for “compensating families,” but one “fixing the liability of persons and corporations for damages resulting from death,” &c. Our statute, unlike the English one, by giving a right of action to the administrator of the deceased, imposes the liability whether there be a family to compnsate or not. Its effect was to abrogate the common law rule, for wliich, if any reason ever existed, the world has long since outgrown it, denying damages for human life, and to affix a penalty by an award of pecuniary damages for a careless or wrongful act resulting in another’s death. In authorizing suits to enforce this liability, our act gives the right to those who are supposed to suffer most b.y the death of the deceased, but on no account does the action fail for want of a person to sue, as with'Lord Campbell’s Act. Other points of dissimilarity between them are: under the English statute the suit is brought by the administrator for the benefit of the beneficiaries, while the beneficiaries sue directly under our statute. Under the English statute the jury are required to apportion or divide the recovery among all the beneficiaries, while under ours no division is made, by the jury; and, indeed, if there be a husband or wife surviving, the exclusive right of action inures to him or her without reference to other members of the family. And so with minor children and dependents, the existence of a higher class of persons authorized to sue in the order named in the statute debars all other classes from any right of action themselves, or from participation in the recovery by the higher class. Duval v. Hunt, 34 Fla. 85, 15 South. Rep. 876. In the Duval-Hunt case we held that where the suit was brought by dependents, their recovery was limited to an amount equal to the present worth of a future support for plaintiff, estimated upon the basis therein mentioned. This view is entirely consistent with, and plainly conformable to, the nature and extent of the damages proximately suffered by one, dependent upon the' deceased for a support only, because he has lost nothing by the death of the deceased except the support which he would have received had deceased lived; but it was not thereby determined, as insisted upon by the appellant, that the same rule for assessing damages for a dependent would apply to a suit by the wife or any other person authorized by the statute to sue. Our statute requires the jury to give such damages “as the party entitled to sue may have sustained by reason of the death of the party killed,” not such damages as the deceased might have recovered had he lived, as contended by appellee. It is clear, therefore, that a widow is not entitled to recover for the pain and suffering of the deceased, because that is not a damage sustained by her, but by the deceased, and dies with his person, unless an administrator can recover therefor in a suit by him under the statute, as to which we express no .opinion. The statute failing to declare what particular elements enter into the damages sustained by a widow by reason of the death of her husband, and the common law furnishing no guide for estimating damages sustained by one from the death of another, we must necessarily have recourse to the general rules governing the assessment of damages in other actions, and among the first we find that “the object of awarding damages is to give compensation for pecuniary loss; that is to put the plaintiff in the same position so far as money can do it, as he would have been if * * * the tort had not been committed.” Sedgwick on Damages, §30. Another is that the damage to be recovered must always be the 'natural and proximate consequence of the act complained of. Sedgwick on Damages, §122. Applying these principles to. this case, it is proper to inquire, who is the plaintiff? Of what wrongful act does she complain? What has been the natural and proximate consequence to her; or, stated differently, what has she directly lost by reason of this wrongful act? The answers are not difficult to give. She is a widow complaining of the death of her husband by the wrongful act of another, and she has lost all the rights and benefits which she would have had a legal claim to receive during the probable joint lives of herself and husband, and those accruing after his death had she survived him. Chief among those accruing to her during their joint lives are the comfort, society, protection and support of the husband. They are all eloquently expressed in that portion of the marriage ceremony constituting the contract between them, whereby the man is required “to love her, comfort her, honor and keep her in sickness and in health.” There can be no question that the wife’s right to the society of the husband, is a recognized legal right, as much so as the right to his support. When one of the parties dies by the wrongful act of another, the consequences are not merely the annulment of a contract, or the ending óf a partnership organized for pecuniary gain; but th'e dissolution of the only status known to the law in which the companionship and society of the parties to each other is so essential that the relation will be annulled if that society be wilfully withdrawn. The word husband or wife disassociated from all idea of companionship has but an empty sound. The Pennsylvania court in a later casé (Pennsylvania R. R. Co. v. Goodman, 62 Pa. St. 329) recognizes the injustice of denying- compensation for companionship of husband and wife in cases of this character, by holding that the husband’s damages are to be “measured by the value of her services as a wife or companion; * * * that the pecuniary loss was to be measured by the nature of the service, characterized as it was by the relation in which the parties stood to each other. Certainly the service of a wife is pecuniarily more valuable than that of a mere hireling. The frugality, industry, usefulness, attention and tender solicitude of a wife and the mother of children surely make her services greater than those of an ordinary servant, and, therefore, worth more. These elements are not to be excluded from the consideration of a jury in making a mere money- estimate of value.” The comfort, society and protection of a husband are no more fanciful or speculative than the frugality, industry, usefulness, attention and tender solicitude of a wife, and the one can be compensated by that simple standard of pecuniary loss, by which the damages of the rich and the poor, the refined and cultivated, and those less so, are measured as the other. The right of a husband to recover damages for being deprived of the society of his wife by reason of injuries inflicted by the negligence of another has been often recognized at common law, though not in cases involving- death; and it has never been considered that the damages on this account were either speculative, fanciful, or liable to bankrupt a defendant. Jones v. Utica & Black River R. R. Co., 40 Hun, 349; Ainley v. Manhattan Ry. Co., 47 Hun, 206; Blair v. Chicago & Alton R. R. Co., 89 Mo. 334, 1 S. W. Rep. 367; Furnish v. Missouri Pacific Ry. Co., 102 Mo. 669, 15 S. W. Rep. 315. In the following cases loss of society has been held a proper element for consideration in estimating damage under various statutes in this class of cases, some of them confining such element to actions by a husband or widow: Richmond & Danville R. R. Co. v. Freeman, 97 Ala. 289, 11 South. Rep. 800; Munro v. Pacific Coast Dredging & Reclamation Co., 84 Cal. 515, 24 Pac. Rep. 303; Pepper v. Southern Pacific Company, 105 Cal. 389, 38 Pac. Rep. 974; Petrie v. Columbia & G. R. R. Co., 29 S. C. 303, 7 S. E. Rep. 515; Baltimore & Ohio R. R. Co. v. State, for use of Kelley, 24 Md. 271; Webb v. Denver & R. G. W. Ry. Co., 7 Utah, 17, 24 Pac. Rep. 616; Baltimore & Ohio R. R. Co. v. Neell's Adm’r., 32 Gratt. 394; Simmons v. McConnell, 86 Va. 494, 10 S. E. Rep. 838; Wells v. Denver & R. G. W. Ry. Co., 7 Utah, 482, 27 Pac. Rep. 688; Hyde v. Union Pac. Ry. Co., 7 Utah, 356, 26 Pac. Rep. 979. The case of Webb v. Denver & R. G. W. Ry. Co., 7 Utah, 17, 24 Pac. Rep. 616, has been cited to sustain the proposition that loss of society is not an element of damage in-this class of cases. That case holds that a mother is entitled to recover only her pecuniary loss, and not for mental pain and suffering caused by the death of a child, in an action for damages under a statute somewhat similar to Lord Campbell’s Act, but it is there admitted that the word “pecuniary,” in this connection, “is not construed in any very strict sense, and the tendency is to still greater liability and to include every element of injury that may be deemed to have a pecuniary - value, although this value may not be susceptible of positive proof, and can only be vaguely estimated. It may include the loss of nurture, of the intellectual, moral, and physical training which a mother only can give to children ; * * * the loss of the society of a near relative. ” The same court has held that while nothing is to be allowed for mental suffering or as a solace for feelings, the jury may allow damages to a widow and daughter for being deprived of the support, care, nurture, companionship, assistance and protection of the deceased (Wells v. Denver & R. G. W. Ry. Co., 7 Utah, 482, 27 Pac. Rep. 688), and, in an action by parents, that the jury may take into consideration the loss to the parents of the society of their child. Hyde v. Union Pac. Ry. Co., 7 Utah, 356, 26 Pac. Rep. 979. Under our statute we hold that in estimating the pecuniary loss sustained by a widow in consequence of the death of her husband, the jury may properly take into consideration the loss of the comfort, protection and society of the husband in the light of all the evidence in the case relating to the character, habits and conduct of the husband as husband, and to the marital relations between the parties at the time of and prior to his death. The sixth instruction on behalf of the plaintiff was properly given, and the court correctly refused the fourteenth instruction requested by defendant because it excluded the elements of “comfort, protection and society” from the consideration of the jury.

(2) The second instruction by the court of its own motion, as well as the fourteenth instruction requested by defendant, in that they each authorized the jury to give plaintiff as damages the full sum of the probable future earnings of the deceased, taking into consideration his age, health, business capacity, habits, experience, and the value of his services in the care of his family, were erroneous. The widow is not entitled to the gross sum of her husband’s future earnings. The deceased would necessarily have consumed at least a portion of those earnings for his own individual benefit had he lived.

It is a difficult matter to lay down general rules by which to estimate damages in this class of cases. Those which occur to us as being applicable to this case, so far as we can judge from the evidence in the record, are as follows: In estimating the pécuniary loss sustained by the widow, the jury may properly take into consideration her loss of the comfort, protection and society of the husband in the light of all the evidence in the case relating to the character, habits and conduct of the husband as husband, and to the marital relations between the parties at the time of and prior to his death; and they may also consider his services in assisting her in the care of the family, if any, but the widow is not entitled to recover for her mental anxiety or distress over the death of her husband, nor for his mental or physical suffering from the result of the injury. She is also entitled to recover reasonable compensation for the loss of support which her husband was legally bound to give her, based upon his probable future earnings and other acquisitions, and the station or condition in society which he would probably have occupied according to his past history in that respect, and his reasonable expectations in the future; his earnings and acquisitions to be estimated upon the basis of the deceased’s age, health, business capacity, habits, experience, energy and his present and future prospects for business success at the time of his death. All these elements to be based upon the probable joint lives of herself and husband. She is also entitled to compensation- for loss of whatever she might reasonably have expected to receive in the way of dower or legacies from her husband’s estate, in case her life expectancy be greater than his. The sum total of all these elements to be reduced to a money value, and its present worth to be given as damages. Tiffany on Death by Wrongful Act, § §158, I59> 166; 3 Wood on Railroads, §414; 2 Sedgwick on Damages, §§573 et seq. Within these limits the jury exercise a reasonable discretion as to the amount to be awarded, based upon the facts in evidence and the knowledge and experience possessed by them in relation to matters of common knowledge and information. Tiffany on Death by Wrongful Act, §1771; Kansas Pacific Ry. Co. v. Miller, 2 Colo. 442; City of Chicago v. Scholten, 75 Ill. 468.

In view of other instructions to the jury, to the effect that they should not give damages for the pain and suffering of the deceased, nor for the grief and wounded feelings of the surviving relatives, we discover no error in the seventh and tenth instructions given on behalf of plaintiff, except that they do not clearly embrace the idea that the jury in estimating damages must be governed by, and not go outside of, the evidence and the knowledge and experience possessed by all persons in relation to matters of common knowledge and observation. Upon another trial they should be amended in this respect.

The ninth instruction for plaintiff was erroneous, because it authorized the jury to give as damages the value of the life of the deceased, and gave them toó much discretion in estimating the damages. Duval v. Hunt, 34 Fla. 85, 15 South. Rep. 876. Her recovery is not the value of the deceased’s life generally, but the value of that life to her, or the loss sustained by her from the premature death of the deceased, as shown by the proofs.

The judgment is reversed and a new trial granted.