Bonner, Associate Justice.
The only questions which are deemed necessary to be noticed in this case arise upon the first, sixth, eighth and eleventh errors assigned by the plaintiff in error, the Houston & Texas Central Railway Company, and upon the cross-assignment made by the defendants in error, Cowser and wife.
1. The first assigned error is that “ The court erred in overruling the defendant’s demurrer to the plaintiffs’ petition, because it appears from the face of the petition that the suit is ■ for damages to the plaintiffs for the death of their son, who is shown to be an adult, and the parents have no legal claim for his services, and no actual damages were sustained.”
It is said in R. Co. v. Nixon, 52 Tex., 25, that “ the common law principle upon which a parent can recover damages for an injury to his child is based upon the relation of master and servant, and as this ceases when the child arrives at the age of majority, damages, under the common law, should be limited to this period. It is, however, a grave question, under our statute, whether, with proper allegations, this damage, which is allowed as ‘ proportioned to the injury resulting from such death,’ should be thus limited.”
The right to damages for the death of another, beyond that allowed by the common law, first given by Lord Campbell’s act, is [301]*301in Texas provided for both in the constitution and the statutes. The statute not only gives the right to damages, but provides the measure by Avliiph it shall be ascertained,— that it shall be “ proportioned to the injury resulting from such death.”
This expression has been construed to mean in proportion to the respective losses sustained by those entitled to sue, and not to the pain and suffering caused to the deceased by the injury. Cotton Press Co. v. Bradley, 52 Tex., 601; March v. Walker, 48 Tex., 375.
We are of opinion that the damages need not necessarily, in every case, be confined to the time of the minority of the deceased, but, according to the testimony, might or might not extend beyond that period; and that the bare fact that the petition shoAAred that the deceased ivas over twenty-one years of age would not make it subject to demurrer.
2. The sixth assigned error is that “ The court erred in its general charge on the subject of contributory negligence, because it imposed the burden of proof on the defendant, and is a comment on the evidence, and the charge is not laAV applicable to the case, and the court erred in refusing the defendant’s seventh and eighth special instructions, intended to correct said errors.”
Beside other instructions given the jury on the subject of contributory negligence, the court charged them that “The party alleging negligence has the burden of proof. Negligence charged by plaintiffs as against the defendants must be supported by evidence to entitle them to recover, and you must believe, under all the circumstances of the case, such negligence Avas gross negligence—a high degree of negligence — to entitle them to a recovery, and Avhen defendants have charged contributory negligence on the part of deceased as the proximate cause of his death, the burden of proof is on defendants to establish the same.”
The refused charges, seventh and eighth, asked by defendant, are as folloAvs:
“ 7. If the jury believe from the evidence that both the deceased and the agents of the defendant company were guilty of negligence contributing to the injury of which the plaintiffs’ son died, you are instructed to find for defendant.
“ 8. If the jury believe from the evidence that both the deceased and the agents of said company were guilty of gross negligence, contributing to the injury of Avhich the son of plaintiffs died, in that event you will find for defendants.”
As a general rule. in civil cases, the burden of proof of any particular issue, unless expressly assumed by the other party, devolves [302]*302upon him who asserts and relies upon it. Practically this question often becomes rather one of the weight or preponderance of evidence, than technically one of burden of proof.
There is a conflict of authority upon the question. By one line of decisions, the burden of proof devolves upon the plaintiff, as an essential prerequisite to the right of recovery, to show affirmatively that the deceased was in the exercise of reasonable care, and that his negligence did not contribute to the injury; by another, that it is matter of defense to be proven by the defendant. Pierce on Railroads, 298-300; 2 Thomp. on Reg., 1775.
The rule laid down in this state, in R. Co. v. Murphy, 46 Tex., 356, is that in a suit for damages against a railway company on account of the alleged negligence of its agents, it is not necessary that the petition should negative, either by facts stated or by direct averment, the existence of contributory negligence on the part of plaintiff; an exception to this rule exists when the petition, from its averments, would establish, if unexplained, a prima, facie case of negligence of the party injured.
Although there' was a general allegation in the petition that the • death of the deceased was “ without any fault or negligence on his part,” yet, taken as a whole, the material affirmative allegations were that he was killed by the negligence and carelessness of the servants of the defendant company, while he was in the discharge of his regular duties in unloading lumber on a flat-car of defendant, which had been switched off to the position it then occupied, for the purpose of being unloaded.
The defendant answered by general demurrer, general denial, and plea of contributory negligence.
The pleadings of the plaintiffs did not affirmatively make out a prima facie case of negligence on the part of the deceased, as by showing that he was, at the time, either passively or actively engaged in such unauthorized or careless act as would, if unexplained, be per se an act of negligence; and if they proved by satisfactory evidence that the deceased was lawfully upon the railroad track for the purpose of unloading a car of lumber, and that his death was occasioned by the negligence of the servants of the company in switching their cars, this made such prima facie case for the plaintiffs as would require the defendant to rebut it by other satisfactory evidence to the contrary, or by evidence of such contributory negligence on the part of the deceased as would defeat the right of recovery.
Under the real contested issues and the evidence in the case, we [303]*303do not think there was such error in the above charge as given which would demand a reversal of the judgment on this ground.
The questions sought to be raised in the seventh and eighth special charges asked and refused seem to have been sufficiently presented in other parts of the general charge given.
3. The eighth assigned error is that “ The court erred in sustaining the plaintiffs’ objection to the defendant’s questions propounded to the witnesses John Henry and J. L. Pannell, for the purpose of obtaining their opinions as experts as to whether the switching at the time young Oowser was killed was done in such manner and with such caution as is employed by railroad employees in similar service, as shown by bill of exceptions.”
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Bonner, Associate Justice.
The only questions which are deemed necessary to be noticed in this case arise upon the first, sixth, eighth and eleventh errors assigned by the plaintiff in error, the Houston & Texas Central Railway Company, and upon the cross-assignment made by the defendants in error, Cowser and wife.
1. The first assigned error is that “ The court erred in overruling the defendant’s demurrer to the plaintiffs’ petition, because it appears from the face of the petition that the suit is ■ for damages to the plaintiffs for the death of their son, who is shown to be an adult, and the parents have no legal claim for his services, and no actual damages were sustained.”
It is said in R. Co. v. Nixon, 52 Tex., 25, that “ the common law principle upon which a parent can recover damages for an injury to his child is based upon the relation of master and servant, and as this ceases when the child arrives at the age of majority, damages, under the common law, should be limited to this period. It is, however, a grave question, under our statute, whether, with proper allegations, this damage, which is allowed as ‘ proportioned to the injury resulting from such death,’ should be thus limited.”
The right to damages for the death of another, beyond that allowed by the common law, first given by Lord Campbell’s act, is [301]*301in Texas provided for both in the constitution and the statutes. The statute not only gives the right to damages, but provides the measure by Avliiph it shall be ascertained,— that it shall be “ proportioned to the injury resulting from such death.”
This expression has been construed to mean in proportion to the respective losses sustained by those entitled to sue, and not to the pain and suffering caused to the deceased by the injury. Cotton Press Co. v. Bradley, 52 Tex., 601; March v. Walker, 48 Tex., 375.
We are of opinion that the damages need not necessarily, in every case, be confined to the time of the minority of the deceased, but, according to the testimony, might or might not extend beyond that period; and that the bare fact that the petition shoAAred that the deceased ivas over twenty-one years of age would not make it subject to demurrer.
2. The sixth assigned error is that “ The court erred in its general charge on the subject of contributory negligence, because it imposed the burden of proof on the defendant, and is a comment on the evidence, and the charge is not laAV applicable to the case, and the court erred in refusing the defendant’s seventh and eighth special instructions, intended to correct said errors.”
Beside other instructions given the jury on the subject of contributory negligence, the court charged them that “The party alleging negligence has the burden of proof. Negligence charged by plaintiffs as against the defendants must be supported by evidence to entitle them to recover, and you must believe, under all the circumstances of the case, such negligence Avas gross negligence—a high degree of negligence — to entitle them to a recovery, and Avhen defendants have charged contributory negligence on the part of deceased as the proximate cause of his death, the burden of proof is on defendants to establish the same.”
The refused charges, seventh and eighth, asked by defendant, are as folloAvs:
“ 7. If the jury believe from the evidence that both the deceased and the agents of the defendant company were guilty of negligence contributing to the injury of which the plaintiffs’ son died, you are instructed to find for defendant.
“ 8. If the jury believe from the evidence that both the deceased and the agents of said company were guilty of gross negligence, contributing to the injury of Avhich the son of plaintiffs died, in that event you will find for defendants.”
As a general rule. in civil cases, the burden of proof of any particular issue, unless expressly assumed by the other party, devolves [302]*302upon him who asserts and relies upon it. Practically this question often becomes rather one of the weight or preponderance of evidence, than technically one of burden of proof.
There is a conflict of authority upon the question. By one line of decisions, the burden of proof devolves upon the plaintiff, as an essential prerequisite to the right of recovery, to show affirmatively that the deceased was in the exercise of reasonable care, and that his negligence did not contribute to the injury; by another, that it is matter of defense to be proven by the defendant. Pierce on Railroads, 298-300; 2 Thomp. on Reg., 1775.
The rule laid down in this state, in R. Co. v. Murphy, 46 Tex., 356, is that in a suit for damages against a railway company on account of the alleged negligence of its agents, it is not necessary that the petition should negative, either by facts stated or by direct averment, the existence of contributory negligence on the part of plaintiff; an exception to this rule exists when the petition, from its averments, would establish, if unexplained, a prima, facie case of negligence of the party injured.
Although there' was a general allegation in the petition that the • death of the deceased was “ without any fault or negligence on his part,” yet, taken as a whole, the material affirmative allegations were that he was killed by the negligence and carelessness of the servants of the defendant company, while he was in the discharge of his regular duties in unloading lumber on a flat-car of defendant, which had been switched off to the position it then occupied, for the purpose of being unloaded.
The defendant answered by general demurrer, general denial, and plea of contributory negligence.
The pleadings of the plaintiffs did not affirmatively make out a prima facie case of negligence on the part of the deceased, as by showing that he was, at the time, either passively or actively engaged in such unauthorized or careless act as would, if unexplained, be per se an act of negligence; and if they proved by satisfactory evidence that the deceased was lawfully upon the railroad track for the purpose of unloading a car of lumber, and that his death was occasioned by the negligence of the servants of the company in switching their cars, this made such prima facie case for the plaintiffs as would require the defendant to rebut it by other satisfactory evidence to the contrary, or by evidence of such contributory negligence on the part of the deceased as would defeat the right of recovery.
Under the real contested issues and the evidence in the case, we [303]*303do not think there was such error in the above charge as given which would demand a reversal of the judgment on this ground.
The questions sought to be raised in the seventh and eighth special charges asked and refused seem to have been sufficiently presented in other parts of the general charge given.
3. The eighth assigned error is that “ The court erred in sustaining the plaintiffs’ objection to the defendant’s questions propounded to the witnesses John Henry and J. L. Pannell, for the purpose of obtaining their opinions as experts as to whether the switching at the time young Oowser was killed was done in such manner and with such caution as is employed by railroad employees in similar service, as shown by bill of exceptions.”
Upon the issue of negligence, it was competent for the defendant to introduce evidence of the usual mode adopted generally by prudent railroad men in switching their cars under similar circumstances as those- which resulted in the death of the deceased.
The two witnesses, Henry and Pannell, were present at the time, and, as shown by other parts of the record, testified both as to the usual and customary mode of such switching, and also the manner in which this particular act was performed. This, ip connection with the testimony that they were experts in such matters, virtually resulted in the evidence sought to be elicited by the questions asked and refused, as shown by the bill of exceptions.
4. The eleventh assigned error is that “ The verdict of the jury is contrary to the evidence and wholly unsupported in respect to the pecuniary loss sustained by the plaintiffs in the death of their son, and said verdict is excessive and extortionate in the amount of damages assessed.”
Under the ruling of the court in this case the plaintiffs were'confined to the actMal damages sustained.
The measure of actual damages in such cases, as said in March v. Walker, 48 Tex., 375, is the pecuniary injury sustained, and is not the.same as when the party who is himself injured sues and recovers compensation for physical and mental suffering. It has been almost universally held that the principle under which such damages are to be assessed, under similar statutes, is that of pecuniary injury and not as a sdlatvwm. 2 Thomp. on Neg., 1289, § 30; Pierce on Railroads, 393.
The difficulty in fixing a definite rule to measure this actual pecuniary compensation has often been felt and expressed.
The question whether the jury, in estimating the pecuniary loss of parents for the death of a child of tender years, could determine for themselves, in their own uncontrolled discretion, unaided by ex[304]*304trinsic testimony, the amount of compensation, was raised but not decided in R. Co. v. Nixon, 52 Tex., 24.
If this should be allowed in any case, it would be on the principle of necessity only, and should be restricted to that class in which, from the nature of the case, satisfactory evidence was not attainable ; and not permitted in one like the present, in which the plaintiffs could have shown such facts and circumstances as would have enabled the court and jury to have reached a conclusion approximating reasonable certainty.
Perhaps the nearest measure of damages, approximating this reasonable certainty, would be such sum as would purchase an annuity, if such security was in the market, equal to the value of the pecuniary aid which the plaintiff would have derived from the deceased, calculated upon the basis of all the facts and circumstances of the particular case reasonably accessible in evidence, and including the probable duration of life, as shown by approved tables.
Although from the necessary uncertainty in the testimony in such cases the jury must be allowed more than ordinary discretion, yet this discretion, as far as possible, should be aided by evidence. Otherwise the verdict is not returned, as required by their oaths, upon the testimony, but upon their individual and perhaps variant and erroneous views, and in regard to which the parties may not have been heard in evidence or argument.
The damages being for the pecuniary loss only, the party claiming them should then, as a general rule, at least be required to prove such facts and circumstances as will enable the jury to return a verdict, based upon this evidence, which would approximate reasonable certainty ; and the court to pass advisedly, in reviewing this evidence, upon motion for a new trial.
This testimonv would include the circumstances of the deceased: - v i 7 liis occupation, age, health, habits of industry, sobriety and economy, his skill and capacity for business, the amount of his property, his annual earnings, and. the probable duration of life. Pierce on Railroads, 396; 2 Thomp. on Neg., 1290, both citing numerous authorities in notes.
In the case now before the court, though there was testimony showing that the deceased had at one time contributed some property to the plaintiffs, and had at some time previously to his death thus contributed two-thirds of his wages, yet the plaintiffs did not show his pecuniary circumstances, and what his wages had been or then were, though it was evident that this testimony was easily accessible.
Without such evidence the verdict of the jury could have been but [305]*305little more than a merely speculative one, and the court had no standard by which to determine its correctness.
As presented by the record, considering the other facts and circumstances of the case, there was nothing which would relieve the verdict of the character, which the first blush would stamp upon it, that it was greatly excessive and not warranted by the testimony. It should have been set aside by the court and a new trial granted, and the failure to do this was error, for which the judgment is reversed.
5. The cross assignment of error, filed by the plaintiffs, is that “ The court erred in sustaining the general demurrer of defendant as to the second count in plaintiffs’ petition, because the allegations in said count, if true, would entitle plaintiffs to recover exemplary damages of defendant, under the provisions of the statute and state constitution by virtue of which this suit vfas brought.”
Section 26, article 16, Const. 1816, before cited, reads as follows: “Every person, corporation or company that may commit a homicide through willful act or omission, or gross neglect, shall be responsible in exemplary damages to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide.”
It will be thus seen that, under the constitution, exemplary damages are allowed only to a certain class or designation of persons — the surviving husband, widow or heirs of the body, and not to the parents, in which right the present suit is brought. 0 ■
If the plaintiffs then can recover exemplary damages at all, it must be by virtue of the statute.
The provisions of the Eevised Statutes, bearing upon this subject, are as follows:
“ Article 2899. An action for actual damages on account of injuries causing the death of any person may be brought in the following cases: 1. When .the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer or hirer of any railroad, . ■. . or by the unfitness, gross negligence or carelessness of their servants or agents. 2. When the death of any person is caused by the wrongful act, negligence, unskillfulness or default of another.
“ Art. 2900. The wrongful act, negligence, carelessness, unskillfulness or default mentioned in the preceding article must be of such a character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury.
[306]*306“ Art. 2901. When death is caused by the willful act or omission, or gross negligence of the defendant, exemplary as well as actual damages inay be recovered.
“ Art. 2903. The action shall be for the sole and exclusive benefit of the surviving husband, wife, children and parents of the person whose death shall have been so caused, and the amount recovered therein shall not be liable for the debts of the deceased.”
The statute clearly draws the distinction between an act done by the proprietor, owner, charterer or hirer of a railroad, and one by their servants'or.agents, and also between actual and exemplary damages. In our opinion, under its proper construction, although actual damages may be given for death caused by the unfitness, gross negligence or carelessness of such servant or agent, as "well as for the negligence or carelessness of the proprietor, owner, charterer or hirer himself, yet that exemplary damages are allowed only for the willful act, omission "or gross negligence of the “ defendant ” to the suit, if a corporation, for the "willful act, omission or gross negligence of one representing it in its corporate capacity, ás a corporate officer, but not of a mere ordinary servant or agent.
Exemplary damages being penal in their- character, for a quasi-criminal act, involves on the part of him who commits the act the question of an express willful intent, or that degree of gross negligence which implies it. This criminal intent should- not by implication be imputed to the principal when the act has neither been authorized nor ratified by him, so as to make it in law virtually his own act.
The above distinction between the liability of the principal for actual and for exemplary damages for the act or omission of the servant or agent, is founded upon natural justice, was recognized in Hays v. R. Co., 46 Tex., 212, and numerous other cases.
■ In our opinion, there was no error in the judgment of the court below sustaining the demurrer of the defendant to the second count in plaintiffs’ petition, for exemplary damages; but for the error previously shown, the judgment is reversed and cause remanded.
" Reversed and remanded.
[Opinion delivered July 23, 1881.]