TYSON, J.
The complaint contained eight counts ; hut upon three of them the court gave the affirmative charge for the defendant. The gravamen of the complaint in each of the remaining counts, was the alleged death of the plaintiff’s intestate, who was a passenger upon one of the defendant’s passenger trains, caused hy the negligence of the defendant. This negligence as alleged in the third count, is based on the failure of the defendant to have its track at or near the place of the derailment of the train, in a proper condition; as alleged in the fourth count, in having rotten or unsound cross-ties at the place where train was wrecked; in the fifth, the failure of defendant’s employes to securely spike or properly fasten one of the rails of 'the track, near the place of disaster; in the seventh, in having a worn or defective rail at the place where the wreck took place, and in the eighth, in the manner of the operation and management of the road.
Under the assignments of error which are insisted upon in argument, it is unnecessary to do more than state that the evidence offered in behalf of the plaintiff tended to support the allegations of negligence as alleged in each count of the complaint above set out, while that of the defendant tended to disprove them. There can not be, nor is there 'any controversy, that the evidence without conflict established a wreck or derailment of defendant’s train upon which the plaintiff’s intestate was a passenger, and that he received injuries from which he died the next day.
The first, second, third, fourth, fifth and sixth assignments of error are of a kindred nature and practically raise the same question. They involve the rulings of the court in refusing to allow the defendant to make proof of the age, physical and mental condition, earning capacity, occupation of the plaintiff’s testator and the amount of money contributed by him from Ms earnings to the support and maintenance of his wife and those dependent [599] upon him. Manifestly the purpose of offering this testimony was to afford the jury an admeasurement of damages based, not upon the degree of culpability' of the act or omission committed ‘by the defendant in tilling him, but upon the compensation which it should pay for the Avrong committed by it to the executrix of the deceased for the benefit of those who may have been deprived of his support and maintenance. In other words, to mate this evidence competent, we must overrule a long line of decisions of this court, in which it was held in each of them, that the damages recoverable are punitive and exemplary — “punitive of the act done and intended by their imposition to stand as an example to deter others from the commission of mortal wrongs or to incite to diligence in the avoidance of fatal casualties — the purpose being the preserAmtion of human life regardless of the pecuniary value of a particular life to next of kin under statutes of distribution, the admeasurement of the recovery must be by reference alone to the quality of the Avrongful act or omission, the degree of culpability involved in the doing of the act or in the omission to act as required 'by the dictates of care and prudence, and Avithout any reference to, or consideration of, the loss or injury the act or omission may occasion to the living.” Richmond & Danville R. R. Co. v. Freeman, 97 Ala. 294 and cases cited therein. This, we are unAvilling to do.
It is insisted that no matter what the construction of the statute, that a defendant who is sought to be punished, has the right to introduce every fact which illustrates or tends to illustrate, the nature or degree of his offense. This proposition may 'be true. But what .has the age, physical and mental condition, earning capacity or occupation of the person killed by the negligence of the -defendant to do with the nature or degree of its offense? It cannot be that the negligence which resulted in the death of an aged person, is any the less negligent if the same act caused the death of a young person. So too the degree of negligence cannot be said to have been accelerated or diminished if the same act caused the death of a man having an occupation, and a [600] man without an occupation. These conditions of .the person killed have nothing to do with the nature or degree of negligence, nor can they possibly mitigate or increase the punishment which the jury is authorized to impose for the commission of the offense, any more than the occupation or earning capacity of a deceased would authorize the jury in a murder case to impose a lighter or heavier punishment upon the defendant who murdered him. Manifestly if this testimony cannot be made the basis upon which, a jury would be authorized to act, it has.no place in the proceedings and the court committed no error in refusing to allow it to be introduced.
Under the authorities of Tanner v. L. & N. R. R. Co. 60 Ala. 621; Walker v. Walker, 34 Ala. 473, and Eureka Co. v. Bass, 81 Ala. 200, the questions propounded to witness Duffey, “That would have been a pretty bad track if it had been worn a half of an inch in some places wouldn’t it?” and “make it dangerous wouldn’t it?” which were allowed to be answered against the objection of defendant, were improper. See also Bemis v. Central Vermont Railway Co., 58 Vt. 636; Graham v. Penn R’y. Co., 139 Penn. St. 149; Penn Co. v. Mitchell, 124 Ind. 473; City of Chicago v. McGiven, 78 Ill. 349.
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TYSON, J.
The complaint contained eight counts ; hut upon three of them the court gave the affirmative charge for the defendant. The gravamen of the complaint in each of the remaining counts, was the alleged death of the plaintiff’s intestate, who was a passenger upon one of the defendant’s passenger trains, caused hy the negligence of the defendant. This negligence as alleged in the third count, is based on the failure of the defendant to have its track at or near the place of the derailment of the train, in a proper condition; as alleged in the fourth count, in having rotten or unsound cross-ties at the place where train was wrecked; in the fifth, the failure of defendant’s employes to securely spike or properly fasten one of the rails of 'the track, near the place of disaster; in the seventh, in having a worn or defective rail at the place where the wreck took place, and in the eighth, in the manner of the operation and management of the road.
Under the assignments of error which are insisted upon in argument, it is unnecessary to do more than state that the evidence offered in behalf of the plaintiff tended to support the allegations of negligence as alleged in each count of the complaint above set out, while that of the defendant tended to disprove them. There can not be, nor is there 'any controversy, that the evidence without conflict established a wreck or derailment of defendant’s train upon which the plaintiff’s intestate was a passenger, and that he received injuries from which he died the next day.
The first, second, third, fourth, fifth and sixth assignments of error are of a kindred nature and practically raise the same question. They involve the rulings of the court in refusing to allow the defendant to make proof of the age, physical and mental condition, earning capacity, occupation of the plaintiff’s testator and the amount of money contributed by him from Ms earnings to the support and maintenance of his wife and those dependent [599] upon him. Manifestly the purpose of offering this testimony was to afford the jury an admeasurement of damages based, not upon the degree of culpability' of the act or omission committed ‘by the defendant in tilling him, but upon the compensation which it should pay for the Avrong committed by it to the executrix of the deceased for the benefit of those who may have been deprived of his support and maintenance. In other words, to mate this evidence competent, we must overrule a long line of decisions of this court, in which it was held in each of them, that the damages recoverable are punitive and exemplary — “punitive of the act done and intended by their imposition to stand as an example to deter others from the commission of mortal wrongs or to incite to diligence in the avoidance of fatal casualties — the purpose being the preserAmtion of human life regardless of the pecuniary value of a particular life to next of kin under statutes of distribution, the admeasurement of the recovery must be by reference alone to the quality of the Avrongful act or omission, the degree of culpability involved in the doing of the act or in the omission to act as required 'by the dictates of care and prudence, and Avithout any reference to, or consideration of, the loss or injury the act or omission may occasion to the living.” Richmond & Danville R. R. Co. v. Freeman, 97 Ala. 294 and cases cited therein. This, we are unAvilling to do.
It is insisted that no matter what the construction of the statute, that a defendant who is sought to be punished, has the right to introduce every fact which illustrates or tends to illustrate, the nature or degree of his offense. This proposition may 'be true. But what .has the age, physical and mental condition, earning capacity or occupation of the person killed by the negligence of the -defendant to do with the nature or degree of its offense? It cannot be that the negligence which resulted in the death of an aged person, is any the less negligent if the same act caused the death of a young person. So too the degree of negligence cannot be said to have been accelerated or diminished if the same act caused the death of a man having an occupation, and a [600] man without an occupation. These conditions of .the person killed have nothing to do with the nature or degree of negligence, nor can they possibly mitigate or increase the punishment which the jury is authorized to impose for the commission of the offense, any more than the occupation or earning capacity of a deceased would authorize the jury in a murder case to impose a lighter or heavier punishment upon the defendant who murdered him. Manifestly if this testimony cannot be made the basis upon which, a jury would be authorized to act, it has.no place in the proceedings and the court committed no error in refusing to allow it to be introduced.
Under the authorities of Tanner v. L. & N. R. R. Co. 60 Ala. 621; Walker v. Walker, 34 Ala. 473, and Eureka Co. v. Bass, 81 Ala. 200, the questions propounded to witness Duffey, “That would have been a pretty bad track if it had been worn a half of an inch in some places wouldn’t it?” and “make it dangerous wouldn’t it?” which were allowed to be answered against the objection of defendant, were improper. See also Bemis v. Central Vermont Railway Co., 58 Vt. 636; Graham v. Penn R’y. Co., 139 Penn. St. 149; Penn Co. v. Mitchell, 124 Ind. 473; City of Chicago v. McGiven, 78 Ill. 349.
. Witness John introduced by the defendant, testified to being on the train at the time of its derailment when the plaintiff’s intestate was injured, and to the condition of the train, track, etc. after the wreck. On cross-examination he testified that he went over the track where the derailment took place two or three times a week, and that he rode on an annual pass; that he was superintendent and general manager of a company engaged in the mining of coal and had charge of its affairs at Belle Ellen; that the company were large miners .of coal. At this point in the cross-examination, the plaintiff’s attorney asked the witness: “And large shippers of coal over the Louisville & Nashville Railroad?” Defendant objected to the question because incompetent, illegal, irrelevant and immaterial. The court overruled the objection and the defendant excepted. Before the witness replied to the question, the plaintiff’s attorney then said to the witness, “I mean through you as superintendent?” The [601] defendant renewed its objection to the question, assigning the same grounds. The court overruled the qbjec.tion, and the defendant excepted. The witness answered,' “Yes, sir.” The defendant moved the court to exclude this answer, which motion the court overruled. In this, to my mind, the court committed an error. The rules of evidence allow a wide latitude, on cross-examination in order to show bias or interest in a witness, but the question here asked goes beyond the bounds. If the answer is allowed, a multitude of issues would arise, entirely foreign to the real issue, consuming time :and distracting the attention of the jury from the real issue in the case. It would be competent in that event to inquire into the details of the business transactions between the defendant and the witness’s employer, the.amount of business and the terms of shipment, and further to prove that the coal company and the defendant over which. the coal was shipped were not on friendly terms 'and reasons therefor. If the reasons for the fact, as distinguished from the 'status or fact of friendship are competent to discredit the witness, it is equally .competent to show the reasons for the relations between the two companies to sustain the witness. Besides the fact that one is a large shipper over a railroad, by no means tends to prove that the shipper is a friend of the railroad. company.
In Carpenter v. The State, 98 Ala. 31, the lower, court sustained an objection by the State to the following question, asked by the defendant on cross-examination to show hostility of the witness to the defendant: “Didn’t you at one time when you were required to reduce the force of hands working under you, discharge him in preference to a colored man, then in your employ?” This court said: “There was no error here. If the question had been answered it would not have shown without more, any hostile feeling on the part of the witness towards the defendant. * * * Many considerations, such as skill, age, physical conditions, differences in wages to be paid, industry and faithfulness to duty, would control in such a selection without implying, necessarily, any prejudice against those discharged. If [602] the question had been allowed its answer would probably have opened an inquiry into such considerations as we have named, which would have been apart from the issue-in the cause.”
The same principle was announced in the case of Polk v. The State, 62 Ala. 238. A majority of the court, however, are of the opinion that-there was no error in this respect.
Reversed and remanded.