The opinion of the Court was delivered by
Fenner, J.
The plaintiff sues in behalf of his minor child, Marie Lapeine, to recover damages for injury inflicted upon her through the fault of the defendant company.
He alleges that in Api'il, 1885, Marie, with other children, was at play in the rear part of her father’s yard, on the inside of a plank fence separating said yard from the railroad track of- said defendant, when a train of cars belonging to the latter and loaded with split lumber passed along said track, and the stakes confining said lum[663]*663ber becoming loosed-or disarranged, the lumber broke away from its fastenings and tumbled off the car, part of it being precipitated over the fence and falling into plaintiff’s yard, striking the child, Marie, and inflicting on her the injuries complained of.
The evidence is, to our minds, conclusive on the following points, viz:
1. That the lumber was precipitated from defendant’s car over plaintiff’s fence and into his yard substantially in the manner charged.
2. That this was caused by the improper loading or insufficient fastening of the lumber and by the imprudent handling of the train, and is imputable exclusively to the negligence and fault of defendant.
3. That the child, Marie, was struck and injured by the falling lumber.
4. That the child was entirely free from any fault or contributory negligence of any kind whatever.
As to all the above points, except the third,' there is no room for the slightest dispute.
As to the third point, the evidence is conflicting, but after a thorough scrutiny, we are perfectly satisfied that Marie was struck and injured by the lumber.
The child was undoubtedly in the yard and near where the lumber fell. The lumber was pitched over into that yard. Immediately afterward the child was found with a wound upon her head and bruises on her body, and she stated she had been hurt by the falling lumber, although, by reason of her age and condition, she was not admitted as a witness.
The colored nurse, Mary Coleman, was the only immediate witness of the injury to the child. She is a curious example of utter depravity and insensibility to the obligation of truthfulness. She pretends to have been bribed by both parties, and her only complaint was that neither had paid the promised bribe. She was put on the stand by plaintiff and testified on every point in her favor. The counsel for defendant then produced a written statement made by her before a notary, and under oath, some time before, in which she contradicted nearly everything she had just been saying. Of' course, such' á witness is unworthy of belief : but it is a significant fact, that in' the statement above referred to, which had been obtained from her by the agents of defendant and was produced by it on the trial, she stated positively That Marie was struck and hurt by the lumber. On this point we believe she told the truth. She is confirmed by Mrs. Lapleine, the mother of Marie, who saw the child when she was withdrawn [664]*664from the lumber that had fallen upon her. Her testimony was objected to on the ground that she was incompetent under the provisions of Art. 2281, Rev. C. C., which declares that “ a husband cannot be a witness for or against his wife, nor a wife for or against her husband.”
It is clear that this is not the husband’s suit, but that of the child. The petitioner himself expressly declares that he sues “ in his capacity as father to his minor child, Marie, and for her separate use, benefit and advantage.” The circumstance that, under Art. 221, C. C., “ Fathers and mothers shall have, during marriage, the enjoyment of the estate of their children until their majority or emancipation,” subject to the obligation of supporting and educating them, is not sufficient to disqualify either of them as witnesses in cases in which their children are parties. If it would disqualify either, it would disqualify both, since the law gives the enjoyment to “fathers and mothers.”
There is much other corroborating and confirmatory testimony, and the whole, taken together, completely overwhelms the efforts of one or two employees of the railroad to establish that Marie was not struck by the lumber, but was some distance from where it fell, and was hurt by tripping and falling as she ran away in alarm. Not only is this theory inconsistent with all the facts and other testimony, but it is utterly insufficient to account for even the apparent physical injuries which Marie undoubtedly received.
The foregoing points being thus settled, it conclusively follows that the defendant is responsible for the damage legally occasioned by its negligent fault.
As to the nature and extent of the injury, it is shown, without any semblance of contradiction, that up to the moment of this accident Marie, then eight years old, had been a bright, intelligent, active and thoroughly healthy child. From that moment she became, and has remained, a constant invalid, seriously affected in mind and body, her nervous system shattered, subject to headaches, to attacks of nausea and vomiting, to frequent and sudden fainting or falling fits, emaciated, indisposed to physical or mental exertion, dragging her limbs in walking, and otherwise afflicted. At the .time of this trial about two years.had elapsed since the accident, and, though slightly improved, the child continues, to a great extent, affected, as above, indicated.
The medical testimony indicates that it is doubtful when or whether ever she will entirely recover. If the foregoing injury and suffering have been occasioned by the accident as the legal, proximate cause, [665]*665it would be difficult to say that the verdict of the jury for $7500 was excessive. But defendant maintains that the physical injuries directly inflicted upon the child were slight and unimportant and utterly inadequate of themselves to produce the disastrous results which have been manifested ; that these results have been occasioned by the peculiar constitution of the child, who inherited from its mother a hysterical tendency or diathesis, the development of which has intervened as the operative and efficient cause of her affliction and sufferings, and that the accident is not, therefore, the true ccmsa, causans, the proximate and efficient cause casting responsibility on defendants.
We are by no means • satisfied that the external manifestations indicate conclusively the extent and nature of the injuries received, or that the shock and derangement of the nervous centres and spinal cord may not have been sufficient to produce like results in an ordinarily constituted child.
It is, however, proved that the mother of the child is subject to hysteria; that hysteria is, in many cases, heritable, and that the symptoms of the child’s affliction are, in many respects, of a hysterical character.
But it is very certain that the child had never exhibited the slightest symptoms of hysteria or other constitutional disease prior to this accident; the medical testimony does not establish that hysteria is necessarily or universally inherited, and it does not appear that, but for this accident, Marie might not have passed her entire life without the slightest development of hysteria.
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The opinion of the Court was delivered by
Fenner, J.
The plaintiff sues in behalf of his minor child, Marie Lapeine, to recover damages for injury inflicted upon her through the fault of the defendant company.
He alleges that in Api'il, 1885, Marie, with other children, was at play in the rear part of her father’s yard, on the inside of a plank fence separating said yard from the railroad track of- said defendant, when a train of cars belonging to the latter and loaded with split lumber passed along said track, and the stakes confining said lum[663]*663ber becoming loosed-or disarranged, the lumber broke away from its fastenings and tumbled off the car, part of it being precipitated over the fence and falling into plaintiff’s yard, striking the child, Marie, and inflicting on her the injuries complained of.
The evidence is, to our minds, conclusive on the following points, viz:
1. That the lumber was precipitated from defendant’s car over plaintiff’s fence and into his yard substantially in the manner charged.
2. That this was caused by the improper loading or insufficient fastening of the lumber and by the imprudent handling of the train, and is imputable exclusively to the negligence and fault of defendant.
3. That the child, Marie, was struck and injured by the falling lumber.
4. That the child was entirely free from any fault or contributory negligence of any kind whatever.
As to all the above points, except the third,' there is no room for the slightest dispute.
As to the third point, the evidence is conflicting, but after a thorough scrutiny, we are perfectly satisfied that Marie was struck and injured by the lumber.
The child was undoubtedly in the yard and near where the lumber fell. The lumber was pitched over into that yard. Immediately afterward the child was found with a wound upon her head and bruises on her body, and she stated she had been hurt by the falling lumber, although, by reason of her age and condition, she was not admitted as a witness.
The colored nurse, Mary Coleman, was the only immediate witness of the injury to the child. She is a curious example of utter depravity and insensibility to the obligation of truthfulness. She pretends to have been bribed by both parties, and her only complaint was that neither had paid the promised bribe. She was put on the stand by plaintiff and testified on every point in her favor. The counsel for defendant then produced a written statement made by her before a notary, and under oath, some time before, in which she contradicted nearly everything she had just been saying. Of' course, such' á witness is unworthy of belief : but it is a significant fact, that in' the statement above referred to, which had been obtained from her by the agents of defendant and was produced by it on the trial, she stated positively That Marie was struck and hurt by the lumber. On this point we believe she told the truth. She is confirmed by Mrs. Lapleine, the mother of Marie, who saw the child when she was withdrawn [664]*664from the lumber that had fallen upon her. Her testimony was objected to on the ground that she was incompetent under the provisions of Art. 2281, Rev. C. C., which declares that “ a husband cannot be a witness for or against his wife, nor a wife for or against her husband.”
It is clear that this is not the husband’s suit, but that of the child. The petitioner himself expressly declares that he sues “ in his capacity as father to his minor child, Marie, and for her separate use, benefit and advantage.” The circumstance that, under Art. 221, C. C., “ Fathers and mothers shall have, during marriage, the enjoyment of the estate of their children until their majority or emancipation,” subject to the obligation of supporting and educating them, is not sufficient to disqualify either of them as witnesses in cases in which their children are parties. If it would disqualify either, it would disqualify both, since the law gives the enjoyment to “fathers and mothers.”
There is much other corroborating and confirmatory testimony, and the whole, taken together, completely overwhelms the efforts of one or two employees of the railroad to establish that Marie was not struck by the lumber, but was some distance from where it fell, and was hurt by tripping and falling as she ran away in alarm. Not only is this theory inconsistent with all the facts and other testimony, but it is utterly insufficient to account for even the apparent physical injuries which Marie undoubtedly received.
The foregoing points being thus settled, it conclusively follows that the defendant is responsible for the damage legally occasioned by its negligent fault.
As to the nature and extent of the injury, it is shown, without any semblance of contradiction, that up to the moment of this accident Marie, then eight years old, had been a bright, intelligent, active and thoroughly healthy child. From that moment she became, and has remained, a constant invalid, seriously affected in mind and body, her nervous system shattered, subject to headaches, to attacks of nausea and vomiting, to frequent and sudden fainting or falling fits, emaciated, indisposed to physical or mental exertion, dragging her limbs in walking, and otherwise afflicted. At the .time of this trial about two years.had elapsed since the accident, and, though slightly improved, the child continues, to a great extent, affected, as above, indicated.
The medical testimony indicates that it is doubtful when or whether ever she will entirely recover. If the foregoing injury and suffering have been occasioned by the accident as the legal, proximate cause, [665]*665it would be difficult to say that the verdict of the jury for $7500 was excessive. But defendant maintains that the physical injuries directly inflicted upon the child were slight and unimportant and utterly inadequate of themselves to produce the disastrous results which have been manifested ; that these results have been occasioned by the peculiar constitution of the child, who inherited from its mother a hysterical tendency or diathesis, the development of which has intervened as the operative and efficient cause of her affliction and sufferings, and that the accident is not, therefore, the true ccmsa, causans, the proximate and efficient cause casting responsibility on defendants.
We are by no means • satisfied that the external manifestations indicate conclusively the extent and nature of the injuries received, or that the shock and derangement of the nervous centres and spinal cord may not have been sufficient to produce like results in an ordinarily constituted child.
It is, however, proved that the mother of the child is subject to hysteria; that hysteria is, in many cases, heritable, and that the symptoms of the child’s affliction are, in many respects, of a hysterical character.
But it is very certain that the child had never exhibited the slightest symptoms of hysteria or other constitutional disease prior to this accident; the medical testimony does not establish that hysteria is necessarily or universally inherited, and it does not appear that, but for this accident, Marie might not have passed her entire life without the slightest development of hysteria.
Admitting, therefore, that the child had a latent hysterical diathesis, in order to escape liability it would devolve on defendant to show that such diathesis was by itself a sufficient independent cause which would have operated in producing or aggravating the damage independently of the accident.
In this defendant has entirely failed.
If the hysterical diathesis concurred with the accident in producing the damage, in determining which of the two is the proximate cause, we must inquire which was the cause that set the other cause in motion.
In. the language of the Supreme Court of the United States, ‘‘ the proximate cause is the efficient cause, the one that necessarily sets the other causes in motion.” Ins. Co. vs. Boon, 95 U. S. 117.
We are cited to a Colorado case which holds that where the physical condition of the person injured is, at the time of the injury, such that the [666]*666injuries caused by tbe negligence are thereby aggravated, the railway is not liable for that aggravation. P. P. C. Co. vs. Barker, 4 Col. 344.
We think, however, the doctrine is not sound and is not in accord witli the weight of authority. The duty of care and of abstaining from injuring another is due to the weak, the sick, the infirm, equally with the healthy and strong, and when that duty is violated the measure of damage is the injury inflicted, even though that injury might have been aggravated, or might not have happened at all, but for the peculiar physical condition of the person injured.
Thus, in one case, a person afflicted with scrofulous disease was injured by the negligence of a municipal corporation in failing to keep its streets in repair, and suffered damage greatly in excess of what he would have suffered but for his disease; yet the court held that the corporation was bound to keep its streets in repair for the sick and in" firm as well as for the well, and held the city liable for the whole damage. Stewart vs. Ripon, 38 Wis. 584.
In another case a pregnant woman was injured, resulting in malformation of the child carried and its subsequent delivery, dead ; and the author of the negligence was held liable for the whole damage. Shartle vs. Minneapolis, 17 Min. 301, lo.
A railway was held liable for cancer following at an interval of three weeks after a blow on the breast of a female. B. C. P. Railway vs. Kemp, 61 Md. 74; (see also) Ry. vs. Buck, 96 Ind. 346; Jucker vs. R. R., 52 Wis. 150; Delic vs. R. R., 51 id. 400; Sauter vs. R. R., 66 N. Y. 50; Beauchamp vs. Mining Co., 50 Mich. 163; Barbee vs. Reese, 60 Miss. 906; Patterson’s Ry. Acc. Law, §§ 29, 278; 2 Thomp. Neg. 1099.
The inheritance of a hysterical diathesis (if it existed) was a misfortune, but certainly not a fault, in this child ; it in no manner diminished her right to protection from injury by the fault of defendant; prior to this accident she had never suffered from this latent constitutional taint; but for the accident, she might never have suffered from it; the accident was the direct, immediate and efficient cause which set in motion all other causes which created or aggravated the damage ; and the defendant is justly bound to answer for these deplorable consequences of his fault. There is evidence, however, showing that the child’s affliction and injuiyhave been aggravated by the injudicious conduct and treatment of her mother. For such aggravation of the damage suffered, it goes without saying that defendant cannot be held liable. We need not particularize as to the nature of this conduct, except to say that it does not reflect upon her sincerity, but only [667]*667on her injudicious sympathy and encouragement and excitement of the child’s disordered nervous system.
This and some other considerations lead us to reduce the damages allowed by the jury.
It is, therefore, ordered and decreed that the verdict and judgment appealed from be amended by reducing the principal thereof to $5000 and tnat, as thus amended, it be affirmed, appellee to pay cost of appeal.
Judgment amended.