The opinion of the court was delivered by
Woodward, J.
This was an action by a father to recover damages for the maiming of his son, a boy of nine years of age, by what is charged as the negligence of the company’s agents. The main facts bear a striking analogy to those in the case of Rauch v. Lloyd & Hill, decided at the present term. A train of cars was stopped on a road or street that leads into the borough of Huntingdon, and whilst it stood there, the plaintiff’s son, returning from an errand along that road, attempted to pass under the cars. While he was in the act of doing so, they were set in motion, and injured one of.his feet so badly, that amputation became necessary to save his life.
Several questions are raised upon the record by the assignment of errors, which I proceed to notice.
1. It is said the court erred, in holding that the Act of Assembly of 20th March 1845, forbidding the obstructing of the crossings of public roads by locomotives and cars, applied to the Pennsylvania Railroad Company, who were incorporated by a subsequent Act of 13th April 1846.
If this were so, if the company were not subject to the Act of 1845, they would have to show legislative authority to justify their blocking up a street. So far from having any such authority, the 13th section of their charter required them to construct their road in such manner as not to impede the passage or transportation of persons or property along any established road. The obstruction which the jury have found in this case was then without authority of law, and therefore illegal. But it was also in plain violation of the Act of 1845, which was a general law, and applicable to the defendants, though subsequently incorporated.
On both grounds, or on either, the ruling of the court can be sustained. Obstructions were correctly defined to consist, not in the transit across the intersecting road, for that is expressly legalized, but in stopping upon it unnecessarily. And. though the Act of 1845 imposes a specific penalty, this in no wise affect? [377]*377the question that is presented in this case. This action is for damages arising out of a tort, and the obstruction proved to the satisfaction of the jury, the tort whereon the action rests is established.
2. But it is said, in the next place, that the obstruction was the remote, and not the proximate, cause of the injury complained of.
This position is answered by the observations that were made on a similar point in Bauch’s case, already referred to. Indeed, the reasoning there applies with more force here, for here the company were engaged in transporting their own cars on their own road. The conductor, and everybody else concerned in the management of the train were, confessedly, the company’s agents.
Now adjust the acts of stopping and starting ever so nicely to the maxim causa próxima, and not a step of advance is taken by the defence, for the company are equally liable for both causes. If you say it was the starting, and not the stopping of the cars, that did the mischief, the question of plaintiff’s negligence in suffering his son to be under them is still in the case, but you have made no progress in the defence, because if there was wrong in the start, the company are as responsible for it as for any wrong in the stop.
The nature of the case, however, does not admit of this nice distinction. The conduct of that train of cars was one thing— intrusted as a special duty to one man — and if his mismanagement injured the plaintiff, without fault on the plaintiff’s part, the company are liable for it. To split such a single, simple, individual cause into two causes, and to christen them próxima and remota, is to embarrass ourselves unnecessarily, and to obstruct the course of justice.
3. We come next to the question of the plaintiff’s negligence. There is no dispute about the principle that forbids him to recover damages for an injury which his own negligence or wrongdoing contributed to bring on; but what did he do amiss ?
He sent his son on a lawful errand along a lawful highway. Was it negligence to permit a boy nine years of age to be abroad on an errand ?
This is not pretended, but it is said the boy betrayed a want- of discretion in going under the cars; and the learned counsel seem to maintain that a boy nine years of age is bound to the same rule of care and diligence in avoiding the consequences of the neglect or unlawful acts of others, which is required of persons of full age and capacity.
The case relied on for this startling proposition is Hartfield v. Roper, 21 Wend. 617. That case was thus: — A child of about two years of age was permitted to wander from his father’s house, and to be sitting or standing in the beaten track of a public high[378]*378way, when the defendant, driving a span of horses and sleigh with two other persons in it, ran over him and injured him. It appeared that the horses were descending a hill at the foot of which was a bridge — that they were going at a reasonable speed, and that there were no houses along that part of the road to excite the expectation that people would be found in the road. Under these circumstances the court held, that failing to see the child in time to avert the danger was not culpable negligence, and they reversed the judgment which gave him damages. The case might have been rested on the propriety of the defendant’s conduct. He was pursuing his highway in a lawful and appropriate manner, and that distinguishes the case from ours, for here the wrongdoing of the defendants, in obstructing the highway, is established. But the case is cited for the sake of Judge Cowen’S observations on infantile responsibility, and these I dismiss in the language which Ch. J. Redeield employed in concluding his opinion in Robinson v. Coe, 22 Verm. 226: “ The case of Hartfield v. Roper,” said he, “ is, so far as it has any application to the present case, altogether at variance with that of Lynch v. Nurdin, and far less sound in its principles, and infinitely less satisfactory to the instinctive sense of reason and justice.” Lord Denman’s opinion in Lynch v. Nurdin, 41 Eng. C. L. R. 422, was subsequent to that of Mr. Justice Cowen, and much worthier, it seems to me, to be followed.
If the father is to be held responsible for the discretion of his son, it is only for such discretion as would usually and naturally be expected of a child of his age and intelligence. Was it a violation of that measure of prudence to go under cars standing where they were ?
We cannot say it was, as a legal conclusion, and the jury did not find it as a conclusion of fact. Nay, indeed, it may be well doubted whether most boys, grown familiar with trains of cars by daily observation, would not, in like circumstances, have acted as this boy acted. To many active and enterprising children, risks not absolutely appalling, are attractive; especially if others are at hand to witness the daring achievement. Two boys, in a neighbouring town, went under ears in similar circumstances, and the adjudged cases in the books show that children do frequently incur equal, or even greater, hazards. We cannot, therefore, account this boy’s conduct unnatural or extravagant.
These grounds of defence having all failed, the only question that remains on the record is, whether the court erred, in their instructions on the subject of damages.
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The opinion of the court was delivered by
Woodward, J.
This was an action by a father to recover damages for the maiming of his son, a boy of nine years of age, by what is charged as the negligence of the company’s agents. The main facts bear a striking analogy to those in the case of Rauch v. Lloyd & Hill, decided at the present term. A train of cars was stopped on a road or street that leads into the borough of Huntingdon, and whilst it stood there, the plaintiff’s son, returning from an errand along that road, attempted to pass under the cars. While he was in the act of doing so, they were set in motion, and injured one of.his feet so badly, that amputation became necessary to save his life.
Several questions are raised upon the record by the assignment of errors, which I proceed to notice.
1. It is said the court erred, in holding that the Act of Assembly of 20th March 1845, forbidding the obstructing of the crossings of public roads by locomotives and cars, applied to the Pennsylvania Railroad Company, who were incorporated by a subsequent Act of 13th April 1846.
If this were so, if the company were not subject to the Act of 1845, they would have to show legislative authority to justify their blocking up a street. So far from having any such authority, the 13th section of their charter required them to construct their road in such manner as not to impede the passage or transportation of persons or property along any established road. The obstruction which the jury have found in this case was then without authority of law, and therefore illegal. But it was also in plain violation of the Act of 1845, which was a general law, and applicable to the defendants, though subsequently incorporated.
On both grounds, or on either, the ruling of the court can be sustained. Obstructions were correctly defined to consist, not in the transit across the intersecting road, for that is expressly legalized, but in stopping upon it unnecessarily. And. though the Act of 1845 imposes a specific penalty, this in no wise affect? [377]*377the question that is presented in this case. This action is for damages arising out of a tort, and the obstruction proved to the satisfaction of the jury, the tort whereon the action rests is established.
2. But it is said, in the next place, that the obstruction was the remote, and not the proximate, cause of the injury complained of.
This position is answered by the observations that were made on a similar point in Bauch’s case, already referred to. Indeed, the reasoning there applies with more force here, for here the company were engaged in transporting their own cars on their own road. The conductor, and everybody else concerned in the management of the train were, confessedly, the company’s agents.
Now adjust the acts of stopping and starting ever so nicely to the maxim causa próxima, and not a step of advance is taken by the defence, for the company are equally liable for both causes. If you say it was the starting, and not the stopping of the cars, that did the mischief, the question of plaintiff’s negligence in suffering his son to be under them is still in the case, but you have made no progress in the defence, because if there was wrong in the start, the company are as responsible for it as for any wrong in the stop.
The nature of the case, however, does not admit of this nice distinction. The conduct of that train of cars was one thing— intrusted as a special duty to one man — and if his mismanagement injured the plaintiff, without fault on the plaintiff’s part, the company are liable for it. To split such a single, simple, individual cause into two causes, and to christen them próxima and remota, is to embarrass ourselves unnecessarily, and to obstruct the course of justice.
3. We come next to the question of the plaintiff’s negligence. There is no dispute about the principle that forbids him to recover damages for an injury which his own negligence or wrongdoing contributed to bring on; but what did he do amiss ?
He sent his son on a lawful errand along a lawful highway. Was it negligence to permit a boy nine years of age to be abroad on an errand ?
This is not pretended, but it is said the boy betrayed a want- of discretion in going under the cars; and the learned counsel seem to maintain that a boy nine years of age is bound to the same rule of care and diligence in avoiding the consequences of the neglect or unlawful acts of others, which is required of persons of full age and capacity.
The case relied on for this startling proposition is Hartfield v. Roper, 21 Wend. 617. That case was thus: — A child of about two years of age was permitted to wander from his father’s house, and to be sitting or standing in the beaten track of a public high[378]*378way, when the defendant, driving a span of horses and sleigh with two other persons in it, ran over him and injured him. It appeared that the horses were descending a hill at the foot of which was a bridge — that they were going at a reasonable speed, and that there were no houses along that part of the road to excite the expectation that people would be found in the road. Under these circumstances the court held, that failing to see the child in time to avert the danger was not culpable negligence, and they reversed the judgment which gave him damages. The case might have been rested on the propriety of the defendant’s conduct. He was pursuing his highway in a lawful and appropriate manner, and that distinguishes the case from ours, for here the wrongdoing of the defendants, in obstructing the highway, is established. But the case is cited for the sake of Judge Cowen’S observations on infantile responsibility, and these I dismiss in the language which Ch. J. Redeield employed in concluding his opinion in Robinson v. Coe, 22 Verm. 226: “ The case of Hartfield v. Roper,” said he, “ is, so far as it has any application to the present case, altogether at variance with that of Lynch v. Nurdin, and far less sound in its principles, and infinitely less satisfactory to the instinctive sense of reason and justice.” Lord Denman’s opinion in Lynch v. Nurdin, 41 Eng. C. L. R. 422, was subsequent to that of Mr. Justice Cowen, and much worthier, it seems to me, to be followed.
If the father is to be held responsible for the discretion of his son, it is only for such discretion as would usually and naturally be expected of a child of his age and intelligence. Was it a violation of that measure of prudence to go under cars standing where they were ?
We cannot say it was, as a legal conclusion, and the jury did not find it as a conclusion of fact. Nay, indeed, it may be well doubted whether most boys, grown familiar with trains of cars by daily observation, would not, in like circumstances, have acted as this boy acted. To many active and enterprising children, risks not absolutely appalling, are attractive; especially if others are at hand to witness the daring achievement. Two boys, in a neighbouring town, went under ears in similar circumstances, and the adjudged cases in the books show that children do frequently incur equal, or even greater, hazards. We cannot, therefore, account this boy’s conduct unnatural or extravagant.
These grounds of defence having all failed, the only question that remains on the record is, whether the court erred, in their instructions on the subject of damages.
The substance of the instructions was, that the damages must be compensatory merely, and that compensation must have regard to the plaintiff’s loss of his son’s services, and to the expenses of nursing and professional treatment.
[379]*379These were the grounds on which the father claimed damages in his declaration, and they were the appropriate grounds on which to assess them. The father was entitled to the services of his child during minority, and by just so much as this injury impaired the value of that right, was he entitled to compensatory damages. This was the only action he could ever maintain, and all his damages were to be assessed herein. For surgical attention and nursing, he was also entitled to compensation on the general principle of quantum meruit.
It was proper for the jury to understand that the sufferings endured by the boy, and the disfiguration of his form, and whatever was merely personal to him, should not enter into the estimate of the father’s damages, because for these the son would have a right of action. And an appropriate caution was given to the jury on this point, in the body of the charge.
But a majority of our number think the court erred in answering the 7th point of the plaintiff. That point called upon the judge to say, that in this action there was no absolute measure of damages, and that the jury might give such damages as they believed to be right to compensate the plaintiff for the loss and injury sustained. The court affirmed this point. They told the jury not to lose sight of the ground of claim as stated in the general charge; but it is clear, that an unqualified affirmance of the 7th point was giving the jury too large a license on the subject of damages, and the verdict proves that they did not heed the reference to the observations contained in the first part of the charge.
Generally speaking, the influence of the court in this class of cases should be exerted to restrain those excesses into which juries are apt to run. The sympathies of the fathers and brothers who compose the jury, are always powerfully excited by the distressing circumstances of the case and the eloquent appeals of counsel. Wild verdicts are frequently rendered. And the tendency in modern times, undoubtedly, is to excessive damages, especially where they are to be assessed against corporations.
It is curious, in looking back, to see how pecuniary mulcts have grown with advancing civilization. The Jewish law abounds with instances of specific damages, but they were generally inconsiderable as compared with modern assessments : Exodus xxi. 32 and 35; xxii. 9.
The same principle of arbitrary and fixed valuation was applied, to a considerable extent, by the civil law, though on the introduction of this code into modern Europe, the discretionary consideration of the tribunal was substituted for the specific valuation.
An arbitrary rule of a very singular character was established by the Lex Aquilia, which provided that in ease of the killing of any slave or cattle, unless by mere chance, the trespasser should [380]*380pay the master as much as the property had been worth any time in the year: Sedgwick on Dam. 23.
The laws of the Anglo-Saxons applied, with the most minute care, specific damages in each class of cases. Not only was a certain value put by law on every individual which determined the amount at which his testimony as a compurgator was to be rated, and the damage he could claim as plaintiff, or must pay as defendant, but every limb and part of the body had its distinct “ wehr,” or legal worth. Thus a leg was valued at 50 shillings (the shilling was then more than double the value of the present English shilling, and 50 shillings were equal to about $35 of our money), the little finger at 11 shillings, the great toe at 10 shillings, an ear was 12 shillings, each of the front teeth 6 shillings, every finger nail 1 shilling, and so on.
In the laws of Alfred, the rates are higher, and under the Conqueror, the wehrs became fewer, until at last specific penalties were reserved almost exclusively for public misdemeanors, and the compensation for private torts came to be measured, as at present, by the discretion of the tribunal applied to all the circumstances of the case. But even after the common law had adopted this discretionary admeasurement of damages, and after the increase of money had depreciated its value, down to a very late period in English- jurisprudence, damages for torts were comparatively low, as may be seen in Viner’s Abr. tit. Damages.
A verdict for $3000 for the loss of a son’s services is not to be found in the old law, and if there are any such instances in modern times, they are comparatively rare. The most recent assessments in England are very much below this rate of compensation.
The courts labour to define the measure of damages with all possible precision, but the application of it must be left to the jury, and unless they are restrained by a firm exercise of the power of new trials, damages will go on increasing, each instance of excess being used to justify the next, until the pecuniary loss of one party will be repaired at the ruin of the other.
Where there has been no oppression, fraud, wantonness, or other circumstance to call for exemplary damages, these large verdicts are a violation of the rule of compensation. And a violation that is just as unpardonable, when practised against a corporation, as against an individual. If any person should wantonly crush the foot of a little boy, I can scarcely conceive of a rate of damages that I would deem too high. But when such a disaster occurs from a merely negligent performance of customary duties, and involves no malicious motive whatever, the rule of law is, that the father is entitled to compensation merely for the pecuniary loss he has sustained. Not compensation for his lacerated, feelings or his disappointed hopes, for the law cannot compensate these in money, but pecuniary indemnity for pecuniary [381]*381losses. What he spent to cure his boy, and what profit might have accrued to him from his services, more than can be realized after the injury, are the proper elements of a verdict; and they are to be rated none the higher or lower because the defendant happens to be a corporation instead of a natural person.
Because the court’s answer to the 7th point was calculated rather to release the jury from this standard, than to hold them to it, the judgment is reversed, and a venire facias de novo is awarded.
Lowrie, C. J., and Strong, J., concur in the judgment, but dissent from that part of the opinion which holds that the plaintiff can recover at all.