Bonner, Associate Justice.
In the disposition of this case we will consider only such of the alleged errors assigned as in our opinion present the material points raised by the record.
I. The first and seventh errors assigned present the validity of the verdict and judgment in favor of Mrs. Cecile Le Gierse alone, when it is apparent upon the record that there were two minor children of the deceased, Louis Le Gierse, whose rights were not adjudicated.
The case of Baker v. Bolton, 1 Camp., (Eng.,) 493, (1808,) is generally cited in support, of the common-law doctrine, “that in a civil court the death of a human being cannot be complained of as an injury.” This was probably founded [199]*199upon the generally received opinion that the civil remedy was merged into the felony which, at common law, worked a forfeiture of property, and that a personal action dies with the person. Judge Dillon, in Sullivan v. Union Pacific Railroad Co., 1 Cent. Law Jour., 595, holds, however, that such doctrine cannot be vindicated on considerations of “reason, justice, or policy.” To obviate the old rule, the statute of 9 and 10 Victoria, ch. 93, commonly known as “Lord Campbell’s act,” was passed. Similar statutes have been enacted in most of the States of the Union, including Texas. (Act of Feb. 2, 1860, Paschal’s Dig., arts. 15-18.) In addition to the statute, section 30 of article 12 of the Constitution of 1869 gave to specified classes of persons, “separately and consecutively,” the right to exemplary damages. This was substantially reenacted by section 26 of article 16 of the Constitution of 1876, except that the words “separately and consecutively ” are omitted.
The right to such an action in our courts being, then, given by express enactments, parties who seek to avail themselves of their benefits must be governed by their provisions.
From the language of the act and the change in the phraseology of the Constitution, it was evidently the intention of the Legislature that but one suit should be allowed, and that this should be prosecuted for the joint benefit of all parties interested; and it is expressly provided that the amount which may be recovered shall be divided among them “ in such shares as the jury shall find and direct.” (Paschal’s Dig., art. 16; Railway Co. v. Moore, 49 Tex., 31.)
In the above case of Railway Co. v. Moore, 49 Tex., 46, it is said, that “ when it appears from an inspection of the petition that it does not contain the proper averments to enable the court to distribute the damages as contemplated by the statute, it is subject to exception; and when the facts are sufficiently exhibited by the pleading, but the judgment fails to divide the damages assessed by the jury among the parties as directed by the statute, it is error.”
[200]*200The necessity of such proper distribution is shown by the reasoning in March v. Walker, 48 Tex., 376, where it is said: “The statute directs that the jury shall make such division. Evidently the actual and prospective damage to children of different age or sex may vary greatly. The loss of a father would affect more injuriously an infant daughter than it would a son approaching manhood and able to care for himself. The jury might very properly direct that the greater part of the amount recovered be given to the one most needy and most injured.”
It would seem that no other tribunal, more appropriately than the jury who tried the case and who know the grounds upon which the damage was given, could apportion this damage.
If all the parties in interest are not before the court as actual plaintiffs, the suit should proceed in the name of one or more for the use and benefit of the others. If the pleadings of the plaintiff do not disclose the names of all, the defect can be reached by plea in abatement. If the non-joinder is apparent of record, then it could be made available by demurrer.
Iu the case before the court, the petition disclosed that the two minor children were necessary beneficiaries in the judgment which might be rendered. It cannot be claimed that the plaintiff, who first sued as surviving wife of the deceased, represented, in that capacity, the interest of the minors, as she subsequently abandoned those allegations in the petition.
The suit was prosecuted in the individual name of the plaintiff; it w7as expressly alleged that the damage accrued to her; and the judgment was rendered in her name only, and does not purport also to have been for the use and benefit of the minors.
If it be admitted that the non-joinder could not be taken advantage of by general demurrer, which it is not necessary to decide, the existence and interests of the minors were [201]*201apparent upon the record, and it was error to proceed to trial and judgment without regard to their rights. If, as held by this court, the mother, as natural guardian, cannot legally compromise the interest of her minor children in such eases, where the damages were received hy her for their joint benefit, much less could she bind them by a suit in which, as in this case, they are not represented, or their interest regarded and protected in the judgment. (Railroad Co. v. Bradley, 45 Tex., 171.)
II. The third and so much of the fifth error assigned as pertains to the refusal of the court to give the ninth special charge asked by the defendant, present the constitutionality of the act requiring conductors of passenger trains to stop not less than five minutes at each station, (Paschal’s Dig., art. 6532,) and of the applicability of the statute to the facts of this case.
It does not become necessary for us to decide upon the constitutionality of the act. Under the rule of construction applicable to such questions,.and in view of the recent decision of the Court of Appeals sustaining the constitutionality of the statute, (Davidson v. The State, 4 Court of Appeals, 545,) we would not declare the law unconstitutional, unless it should plainly appear that the vested charter or other important rights of the railroad company were unduly prejudiced thereby; and particularly as under pending legislation the question may cease to be a practical one.
We think, however, that, under the evidence, the question is not so much whether the train did or did not stop the required five minutes at Borden station, as it is one of contributory negligence upon the part of the deceased, Louis Le Gierse.
If it be admitted that the defendant company may have been guilty of negligence in not waiting the five minutes, and that in a proper case it might be liable for damages other than that proximately occasioned by the delay consequent thereon, still this would not have justified the deceased [202]*202in attempting to get aboard the train when in motion, if, under the circumstances, this also may have been an act of negligence on his part which may have materially contributed to his injury. These, then, became, under the circumstances, material questions of fact, which, under appropriate instructions, should have been properly submitted to the jury. (Railroad Co. v. Murphy, 46 Tex., 356; Brandon v. Manufacturing Co., ante, 121.)
The third subdivision of the charge reads as follows: “ 3.
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Bonner, Associate Justice.
In the disposition of this case we will consider only such of the alleged errors assigned as in our opinion present the material points raised by the record.
I. The first and seventh errors assigned present the validity of the verdict and judgment in favor of Mrs. Cecile Le Gierse alone, when it is apparent upon the record that there were two minor children of the deceased, Louis Le Gierse, whose rights were not adjudicated.
The case of Baker v. Bolton, 1 Camp., (Eng.,) 493, (1808,) is generally cited in support, of the common-law doctrine, “that in a civil court the death of a human being cannot be complained of as an injury.” This was probably founded [199]*199upon the generally received opinion that the civil remedy was merged into the felony which, at common law, worked a forfeiture of property, and that a personal action dies with the person. Judge Dillon, in Sullivan v. Union Pacific Railroad Co., 1 Cent. Law Jour., 595, holds, however, that such doctrine cannot be vindicated on considerations of “reason, justice, or policy.” To obviate the old rule, the statute of 9 and 10 Victoria, ch. 93, commonly known as “Lord Campbell’s act,” was passed. Similar statutes have been enacted in most of the States of the Union, including Texas. (Act of Feb. 2, 1860, Paschal’s Dig., arts. 15-18.) In addition to the statute, section 30 of article 12 of the Constitution of 1869 gave to specified classes of persons, “separately and consecutively,” the right to exemplary damages. This was substantially reenacted by section 26 of article 16 of the Constitution of 1876, except that the words “separately and consecutively ” are omitted.
The right to such an action in our courts being, then, given by express enactments, parties who seek to avail themselves of their benefits must be governed by their provisions.
From the language of the act and the change in the phraseology of the Constitution, it was evidently the intention of the Legislature that but one suit should be allowed, and that this should be prosecuted for the joint benefit of all parties interested; and it is expressly provided that the amount which may be recovered shall be divided among them “ in such shares as the jury shall find and direct.” (Paschal’s Dig., art. 16; Railway Co. v. Moore, 49 Tex., 31.)
In the above case of Railway Co. v. Moore, 49 Tex., 46, it is said, that “ when it appears from an inspection of the petition that it does not contain the proper averments to enable the court to distribute the damages as contemplated by the statute, it is subject to exception; and when the facts are sufficiently exhibited by the pleading, but the judgment fails to divide the damages assessed by the jury among the parties as directed by the statute, it is error.”
[200]*200The necessity of such proper distribution is shown by the reasoning in March v. Walker, 48 Tex., 376, where it is said: “The statute directs that the jury shall make such division. Evidently the actual and prospective damage to children of different age or sex may vary greatly. The loss of a father would affect more injuriously an infant daughter than it would a son approaching manhood and able to care for himself. The jury might very properly direct that the greater part of the amount recovered be given to the one most needy and most injured.”
It would seem that no other tribunal, more appropriately than the jury who tried the case and who know the grounds upon which the damage was given, could apportion this damage.
If all the parties in interest are not before the court as actual plaintiffs, the suit should proceed in the name of one or more for the use and benefit of the others. If the pleadings of the plaintiff do not disclose the names of all, the defect can be reached by plea in abatement. If the non-joinder is apparent of record, then it could be made available by demurrer.
Iu the case before the court, the petition disclosed that the two minor children were necessary beneficiaries in the judgment which might be rendered. It cannot be claimed that the plaintiff, who first sued as surviving wife of the deceased, represented, in that capacity, the interest of the minors, as she subsequently abandoned those allegations in the petition.
The suit was prosecuted in the individual name of the plaintiff; it w7as expressly alleged that the damage accrued to her; and the judgment was rendered in her name only, and does not purport also to have been for the use and benefit of the minors.
If it be admitted that the non-joinder could not be taken advantage of by general demurrer, which it is not necessary to decide, the existence and interests of the minors were [201]*201apparent upon the record, and it was error to proceed to trial and judgment without regard to their rights. If, as held by this court, the mother, as natural guardian, cannot legally compromise the interest of her minor children in such eases, where the damages were received hy her for their joint benefit, much less could she bind them by a suit in which, as in this case, they are not represented, or their interest regarded and protected in the judgment. (Railroad Co. v. Bradley, 45 Tex., 171.)
II. The third and so much of the fifth error assigned as pertains to the refusal of the court to give the ninth special charge asked by the defendant, present the constitutionality of the act requiring conductors of passenger trains to stop not less than five minutes at each station, (Paschal’s Dig., art. 6532,) and of the applicability of the statute to the facts of this case.
It does not become necessary for us to decide upon the constitutionality of the act. Under the rule of construction applicable to such questions,.and in view of the recent decision of the Court of Appeals sustaining the constitutionality of the statute, (Davidson v. The State, 4 Court of Appeals, 545,) we would not declare the law unconstitutional, unless it should plainly appear that the vested charter or other important rights of the railroad company were unduly prejudiced thereby; and particularly as under pending legislation the question may cease to be a practical one.
We think, however, that, under the evidence, the question is not so much whether the train did or did not stop the required five minutes at Borden station, as it is one of contributory negligence upon the part of the deceased, Louis Le Gierse.
If it be admitted that the defendant company may have been guilty of negligence in not waiting the five minutes, and that in a proper case it might be liable for damages other than that proximately occasioned by the delay consequent thereon, still this would not have justified the deceased [202]*202in attempting to get aboard the train when in motion, if, under the circumstances, this also may have been an act of negligence on his part which may have materially contributed to his injury. These, then, became, under the circumstances, material questions of fact, which, under appropriate instructions, should have been properly submitted to the jury. (Railroad Co. v. Murphy, 46 Tex., 356; Brandon v. Manufacturing Co., ante, 121.)
The third subdivision of the charge reads as follows: “ 3. If the jury believe from the evidence that the said conductor of said train had, on the night Lo Gierse attempted to board said train, caused said train to stop at Borden station five minutes before he set the same in a forward motion, and that after the usual signals had been given said train was set in a forward motion, and Lo Gierse then attempted and failed to board the said train, then and in that case you should find for the defendant.” It is but reasonable to presume that the jury, from this, may have inferred that if the train did not stop the five minutes, the defendant company, under the law, was liable, irrespective of the question of contributory negligence on the part of the deceased.
A careful, analytical consideration of the charge as a whole, and particularly in connection with the seventh and eighth special charges asked by the defendant and given by the court, would perhaps show that the proposition contained in this third subdivision of the general charge was so qualified as to present the question of contributory negligence. In suits, however, of this character, where if exemplary damages are given they are in the nature of penalties, the charge of the court should not be entitled to the same liberality of construction as in ordinary civil cases; and particularly where the general charge—by which the jury is the more readily influenced—contains, without qualification, in a distinct and independent division, a proposition on a material point calculated to mislead them. We think, under the circum[203]*203stances, it is but reasonable to infer that the jury may have been thus misled in the present case.
III. So much of the charge of the court which is complained of in the second ground of the motion for new trial and in the refusal of the last special charge—not numbered—asked by the defendant, raises the question of the duty of the court to have instructed the jury as to the proper measure of damages in the event that they found for the plaintiff.
The constitutional provision (thaf now in force being section 26 of article 16 of the Constitution of 1876) giving exemplary damages in such cases, did not repeal the previous act, of the Legislature, (Paschal’s Dig., arts. 15-18,) but was simply cumulative. The act was intended, according to the well-settled construction of similar statutes, to give compensatory damages only; but the Constitution went a step beyond and gave also exemplary damages. (Price v. Navigation Co., 46 Tex., 535; March v. Walker, 48 Tex., 372.)
A party, then, according to the allegations and evidence, if he should be entitled to judgment, may recover actual damages only, or both actual and exemplary. '
We think the true practice which should govern in all this class of cases, and which should be enforced by the presiding judges below, is that indicated by this court in Wallace v. Pinberg, 46 Tex., 35, that when both actual and exemplary damages are sought, they should be claimed by proper allegations, in the nature of two distinct counts on different causes of action, or cross-action, with averments respectively appropriate to each remedy, these being essentially different in the facts necessary to be alleged and proven.
And we further think it the proper practice that the court should, in the charge, give to the jury the rules of law, as applied to the facts in evidence, which should govern them in the measure of this damage; and that where the testimony warrants a charge upon both actual and exemplary damages, the jury should be required to respond in separate verdicts, showing, if any, the amount of actual and that of exemplary [204]*204damages they may find. ' If this is not done, the courts cannot, upon a motion for a new trial, advisedly review the action of the jury and determine whether the verdict is supported by the law and the evidence.
In the present case, the charge of the court did not instruct the jury as to the distinction between actual and exemplary damages, of furnish them any rules of law by which they should measure this- damage; but the whole question was, in general terms, submitted io their uninstructed and unlimited discretion, and a verdict rendered for the gross sum of $19,000.
The rules by which damages should be measured are questions of law, to be given in the charge by the court to the jury; the amount of damage to which a party may be entitled, is a question of fact to be determined by the jury, by the application of these rules of law to the evidence in the particular case.
Our statute requires that the court should decide on the questions of law and instruct the jury in regard thereto,— “ distinctly separating questions of law from questions of fact.” (Paschal’s Big., art. 1464.)
In the failure of the court to thus instruct the jury in this case, there was error.
IV. We do not think that, under the circumstances, there was error in excluding the declaration of the witness Morris, as shown in the second alleged error assigned.
The declaration excluded was not competent to impeach the witness, as the proper basis had not been laid. (Weir v. McGee, 25 Tex. Supp., 20.) It was not, under the circumstances surrounding the deceased, proper as an implied admission, and was not shown by the evidence before us to have been so intimately connected with the transaction as to have been a part of the res gestee, if otherwise admissible for this purpose.
For the errors, however, before shown, the judgment below must be reversed and the cause remanded.
Eeversed and remanded.