Dent, Judse :
Nathaniel Turner, administrator of the personal estate of Pearly Turner, deceased, instituted suit in the Circuit Court of Wayne county on the 11th day of February, 1892, against the Norfolk & Western Railroad Company, for the sum of ten thousand dollars damages on account of the death of said Pearly Turner, and on the 8th day of October, 1892, recovered the judgment for the sum of four thousand five hundred dollars,beingtheamount of damages assessed by a jury.
The defendant, upon a writ of error to this Court insists upon the following errors: “First. The court erred in granting the plaintiffs instructions numbers 4 and 5. They were [679] eacli irrelvant and misleading, in tiiat neither was predicated upon the specific act of negligence charged in the plaintiff’s declaration. Second. Ii it were proper for the court to grant the plaintiff’s instructions numbers 4 and 5, tiren it was error to refuse to grant your petitioner’s instructions numbers 1 and 2, as by it prayed. Third. The court erred in not setting aside the verdict as contrary to the law and evidence. Fourth. The measure of damages in case of death is the value of a man’s life to his estate. The record contains no evidence whatever of the deceased’s earning capacity, and the verdict was in consequence, not only excessive, but absolutely without foundation, and should have been set aside.”
The material facts in this case are as follows: On the-day of February, 1892, Pearly Turner, a boy sixteen years of age, of average intelligence, industrious, obedient and healthy, while in the employ of the defendant, under the direction and control of a foreman named Alley, met his death in a collision between an extra engine and a hand car, at a curve about five miles from Wayne Courthouse. The deceased was on the hand car with a crew of employes, all of whom, at the time of accident, were acting under the orders and immediate supervision of said foreman. The foreman went ahead of the hand car to the curve, and without going himself or sending some one else to ascertain whether an extra was coming, as the rules of the company required him to do, got on the hand car and started around the curve, and met the engine near the middle thereof. All escaped except the deceased, who was killed outright.
The evidence is conflicting as to whether the whistle of the engine was sounded or the bell was rung; the engineer and crew with him testifying that the whistle was sounded and the bell rung at a road crossing eight hundred or nine hundred feet from the curve, and that such sounding of the whistle was for the curve, as he, the engineer, was on the lookout for a gang of carpenters. None of the crew on the hand car heard either signal, and some other parties testify that they did not hear either whistle or bell, although in position to do so. The deceased had been in the employ of the company for about five months, Lad passed over the road frequently, and [680] bad often flagged trains for tbe foreman. His father was dead, but his mother was living.
First. The instructions referred to in the first assignment of error are as follows; to wit: “No. 4. The jury are instructed that when a railroad company puts a foreman in charge of a gang of laborers, with power to discharge them, subject to the approval of the supervisor and makes it the duty of said foreman to see that these laborers perform their duty faithfully, such fofeman must, in the performance of all his duties to those laborers under him, be regarded as the representative of the railroad company; and if, through his neglect of duty; one of these laborers in the performance of his duty; is injured without negligence upon his part; such laborer may recover of the railroad company the damages he has sustained, caused by the negligence of such foreman without the knowledge of surh laborer. No. 5. The court instructs the jury that the plaintiff’s intestate, Pearly Turner, had the right to assume that his foreman, E. Alley, would give all proper attention to his safety, and that he would not be carelessly and needlessly exposed to risks and damages not necessarily resulting from his occupation, and which might have been prevented or much diminished by ordinary care and precaution on the part of his master or his representative, in this case Foreman Alley.” The objection to these instructions is an alleged variance between the declaration and the proof. The part of the declaration referred to is as follows: “While said plaintiff’s intestate was engaged in pro} telling and operating the said hand car on defendant’s track on said section, without any default or negligence on his part, and without any knowledge of the danger to which he was then and there exposed, the said defendant wrongfully, negligently and injuriously ran and caused to be run a certain steam locomotive engine around a sharp curve and through a deep cut, without ringing the bell or blowing a whistle, or giving any warning whatsoever, with great'force and violence over, upon and against the said hand car, upon which said plaintiff’s intestate was as aforesaid, whereby and by reason whereof the plaintiff’s intestate was bruised, wounded and mangled, from which said [681] wounds, bruises and injuries afterwards, to wit, on the day and year aforesaid, he died.” The defendant insists that the instructions were not jwoper, because the jury, under this declaration, could not find the defendant guilty of an act of negligence committed by Foreman Alley in not taking the required steps to ascertain and warn the deceased of the approaching train. ’ This was a duty the defendant owed to the deceased and which it imposed upon his foreman, and certainly comes within the general allegation of the declaration, “without any warning whatsoever.” Foreman Alley was the agent of the defendant as to giving this warning, and his failure to do so was the failure of the defendant. It was necessary for the jury under this declaration to have before them, and take into consideration any and all failures on the part of the defendant to 'warn deceased of the approaching train, and if the defendant had warned him through any of its agencies, it would have been sufficient, although all the others had been guilty of negligence in this respect; and the declaration is founded on the fact that the defendant failed in its duty, and if it had not been broad enough to cover the negligence of Foreman Alley, it would have been bad on demurrer or motion to exclude the evidence. The demurrer was overruled, and properly so, and no motion was made to exclude the evidence. The evidence which justifies the instructions was first introduced by the defendant on its theory' of the case, to show contributory negligence on the part of deceased, and being in for its purposes, it could not have it excluded because it sustained the plaintiff's case. The instructions were, therefore, proper* to meet the defendant’s claim of contributory negligence, if for no other purpose. The defendant can not relieve itself in a case of this character, resulting from the negligence of its •servants, by showing that others of the servants were equally or more negligent, and if they had not been so, the accident would not have happened, unless it shows that the deceased contributed to the latter’s negligence. An attempt of this kind was made in this case, and was properly met by these instructions. Under this view of the questions presented, the authorities referred to by the defendant’s counsel have [682] no application to this case, but only where there is a plain-variance between the allegations and the evidence, which has been taken advantage of in the trial court and not here-raised for the first time. On this subject, in addition to the-authorities cited by plaintiff’s counsel, see Long v. Campbell, 37 W. Va. 665 (17 S. E. Rep. 665).
Second. The instructions referred to in the second assignment of error are as follows, to wit: “No. 1. The court instructs the jury that if they believe from the evidence that E. Alley was a foreman of the defendant, in charge of a gang of laborers putting in cattle guards along defendant’s line; that the plaintiff’s intestate, Pearly Turner, was a member of such gang, and subject to the- authority of said Alley; that on the morning of January 28,1892, the said Turner, in company with his said foreman and the other laborers of the gang under him, got on a hand car on the defendant’s railroad track willingly and without objection, and rode along on said hand car in the direction of Wayne, through cuts and around curves, without the foreman of the crew, or any member thereof by his direction, being ahead with flag or other signal to give the hand car and its occupants warning of danger by reason of approaching trains or otherwise, and the absence of such flagging was known to said Turner, and he still without objection remained on- the hand car — then, under such circumstances, the said Pearly Turner accepted and assumed the risk of encountering or coming in contact with any extra train or wild engine that might be on the track, 'and which could be escaped by such flagging; and under such circumstances, if the jury find that the neglect of the foreman to flag was the proximate cause of the injury to Pearly Turner, they can not find for the plaintiff, but must return a verdict for the defendant . No. 2. If the jury find from the evidence in this case that the intestate, Pearly Turner, for two or three months prior to his death, had been in the service of the defendant, under Foreman Alley, working upon .the defendant’s railroad track putting in cattle guards, and to his knowledge the railroad company during that time had been daily running on said road divers extra trains, without previous notice, back and forth from one point to another [683] at irregular Fours of the day, and that said Turner, without compulsion, got upon the hand car on the morning of January 28,1892, knowing that his foreman, Alley, had no knowledge or opportunity of knowledge that extra No. 2 would be approaching that -morning, and also knew that his said foreman had not flagged around the curve where the accident occurred, then the jury are instructed that the said Turner assumed the risk of a collision between his hand car and any extra which might meet them on said curve.” And the plaintiff objected to the giving of said instructions, and each of them, and the court sustained said objection, and refused to give said instructions, or either of them, in the above form; to which'opinion of the court in refusing to give said instructions and each of them, the said defendant again excepted. Thereupon the court modified each of said instructions by adding to No. 1 the following language: “Provided the jury further believe from the evidence that Pearly Turner had knowledge of the duties of said foreman Alley to do such flagging, or cause it to be done, and if the jury believe further from the evidence that Pearly Turner had knowledge at the time of the accident that said Alley had not so done his duty.” And by adding to No. 2 the following language: “Provided the jury further believe from the evidence that Pearly Turner had knowledge that it was the duty of said foreman to do or have done such flagging.” And the court then gave each of said instructions as so modified.
The modifications made by the trial court to these instructions come clearly within the rule as decided by this Court in the case of Gregory's Adm’r v. Railroad Co., 37 W. Va. 606 (16 S. E. Rep. 819). The mere fact that a part of the modification is a repetition of what is already contained in the instruction would not vitiate it to the prejudice of the defendant. These instructions were based on the contributory negligence of the deceased, who could not be considered as waiving the discharge of a duty which the foreman owed him as the agent of the defendant, unless he had knowledge of the duty. The court did not err in so modifying the instruction, but it did err in giving the instruction as modified, but not to the prejudice of the defendant.
[684] The first instruction contains this language: “Through . cuts and around curves, without the foreman of the crew, or .-any member thereof by his direction, being ahead with flag or other signal to give the hand car and its occupants warning .•of danger.” There is no evidence in this case that justifies this part of the instruction, as it does not appear that any , other cuts and curves were passed that morning where the •foreman neglected his duty to flag but the one where the collision occurred, and the jury can not infer from one proven act of negligence that other similar ones occurred. Both instructions are vicious for another reason. They fail to take into consideration the age, capacity, and experience of the deceased. 3 Wood R. R. (2d Ed.) § 380, p. 1754, lays down the law as to the employment of minors as follows: “The •mere fact that a servant is a minor does not of itself render the master under any greater obligation to him than to older employes. When he enters the service he assumes ¡all the risks incident to it, and no exception to the general rule in this regard is made in his favor.” And in Wood, Mast. & Serv. p. 714, § 349: “Where the servant has equal 'knowledge with the master of the danger incident to the work, he takes the risk on himself if he goes on with it, but this only applies where the servant is of sufficient discretion to appreciate the dangers incident to the work. Where there are latent defects or hazards incident to an occupation, of which the master knows or ought to know, it is his duty to warn the servant of them fully, and, failing to do so, he is liable to him for any injury that he may sustain in consequence of such neglect; and this rule applies even where the danger or hazard is patent, if, through youth, inexperience or other cause, the servant is incompetent to fully understand and appreciate the nature and extent of the hazard.” . In the case of Railroad Co. v. Fort, 17 Wall. 558, a •suit for damages sustained by a boy sixteen years of age, Justice Davis, rendering the decision of the court, says: “If the order had been given to a person of mature years, who had not engaged to do such work, although enjoined to obey the directions of his superior, it might with some plausibility be argued that he should have disobeyed it, as he [685] must bare known that its execution was attended with danger; or, at any rate, if he chose to obey, that he took upon-himself the risks incident to .the service. But this boy occu- • pied a very different position. How could he be expected' to know the peril of the undertaking. He was a mere youth, • without experience, and not familiar with machinery. Not being able to judge for himself, he had a right to rely on the judgment of Collett, and doubtless entered upon the execution of the order without apprehension of danger.” In this case the, decedent, a minor sixteen years of age, of average intelligence for one of his age, when he entered the service of the company defendant as a track hand assumed all the ordinary risks incident to that service, and the defendant was bound to accord to him the same protection as to-' unexpected or extraordinary hazards as it did to adult employes. When it seeks to be excused from culpable negligence on its part in that it failed to discharge its duty towards him in warning him of an unusual latent and dangerous hazard, on the theory that he acquiesced in its negligence and assumed the risk of hazard, his age, experience, and capacity, if not legally conclusive, are potent factors to be considered by the jury in arriving at a verdict. The defendant’s instructions entirely ignore these factors, and pro-' pound the law as though he were an experienced adult, with all his powers of mind and body fully developed. If he had signed a written contract or deed waiving the discharge of the defendant’s duties towards him in the most solemn and formal manner, the law would have held it void, and if he had entered into a parol agreement to the same effect, the1 law would have disregarded it; and yet the jury is instructed that they may find from his acts, knowledge and conduct that he released the defendant’s legal duty towards - him, and assumed the risk occasioned by the defendant’s negligence, although at the time he was acting in obedience to the defendant’s orders. Such a construction of the law is ■ contrary to reason and experience. Boys of sixteen seldom stop to consider any danger to which they may be exposed, but rely implicitly on the superior judgment of those in authority over them. And is it not right that they should do • [686] so, especially ■when any insubordination on their part subjects them to condign punishments? Is not such the teaching of both the Scriptures and the law? Shall we say in the language of the defendant’s counsel, “Common sense would teach him, his own safety would require, and ordinary prudence dictate,” that he should not place confidence in the superior intelligence, experience and knowledge of the trusted agent of the defendant, his superior officer, but that he should depend on his own youth, inexperience and lack of knowledge? The defendant would never1 countenance such a rule as this in its business. It would fake a very strong case to make an infant employe contribute to his master’s negligence by obeying his directions, which result in the former’s death. Certainly the case now presented is not such a case, and therefore the defendant’s instruction, though modified, should not have been given.
Third. The- conclusions thus reached virtually dispose of the third assignment of error, which is to the refusal of the court to set aside the verdict as contrary to the law and evidence. The defendant’s argument under this head is mainly as to the question whether the engineer sounded the whistle and caused the bell to ring, as required by the rule of the defendant, which is in these words: “Extra and delayed trains must sound the whistle frequently on approaching curves, and before passing obscure places.” The engineer and other trainmen testify that the whistle sounded and the bell was rung just before and at the road crossing, about eight hundred feet from where the accident took place. The employes, not less than twelve in number, heard neither the whistle nor bell. This is established by their conduct, independent of their testimony, because if any of them had heard it it is safe to presume the accident would not have happened. Several other witnesses testified on the same subject. The jury had to weigh this evidence; for it is certainly conflicting and contradictory, depending entirely on the memories of the witnesses, their interest in the result of the trial, and other circumstances surrounding the case. But admitting that the whistle was sounded and the bell' rung, as testified by the trainmen, can wo say that it was a full compliance [687] with the rule of the defendant? It certainly did not accomplish the result intended. It could warn no one whose ears it did not reach, and it appears to have been heard only by those in the immediate neighborhood of the engine. Why the whistle was not sounded in the immediate neighborhood of the curve — the point of danger — no explanation is given. The engineer says the whistling at the road crossing, eight hundredfeetavray,was intended for the curve, because he expected some carpenters along on a truck or hand car, and yet he did not sound the whistle frequently, as the rule requires, but actually ran into the very carpenters he was expecting, without giving them any warning of his approach. The jury were certainly justified in finding that the engineer, as well as the foreman, was guilty of negligence in not obeying the rules of the defendant. The defendant insists that' if the engineer and foreman wrere guilty of negligence, the boy was guilty of contributory negligence; that “his conduct under the circumstances was such as no' man -with a grain of sense nr a particle of prudence would have been guilty of.” Such language as this might be properly used toward the offending foreman or the other adult hands, seven in number, who were along with him, but is certainly hardly appropriate when applied to this poor, unfortunate boy, wrho in his earnest desire to serve his master in an acceptable manner, lost his life whilst strictly obeying the orders of his master, as repi’esented by its foreman. He not only had the right, but was in duty bound ¡to rely upon the care and superior knowledge of the trusted agent of his employer, under whose protection and charge he v/as placed. Wood Mast. and Serv. § 366; 4 Am. & Eng. Enc. Law, 42-61, note 1. This is a much stronger case in this respect than the Fort Case, referred to above. This boy was not sent into a dangerous place, but by the conduct of his superior “was lulled into a sense of perfect security,” and then led into unexpected danger, and wdren the death trap is reached, the superior, by reason of his experience, activity, and good fortune, saves himself, and permits the innocent victim of his negligence to perish. For his confidence and obedience, the boy paid his .life; for its negligence, the master should respond in damages.
[688] Fourth. The last error assigned is that the damages allowed are excessive. Section 6, Chapter 103, of the Code, provides that: “In every such action the jury may give such damages as they shall, deem fair and just, not exceeding ten thousand dollars.” By the enactment of this law the legislature, as it had the power to do, 'gave the jury absolute control over the question of damages, within the limit fixed. The courts are clothed with no authority to disturb their findings, but are inhibited from so .doing as positively as though plainly expressed in the language of the statute. They can neither enact, repeal, vacate,'or amend legislative enactments within the limitations of the constitution, within which the legislature is supreme and the judiciary powerless. It has been held by the Court of Appeals of Virginia, in construing a similar statute, from which our statute was taken, that the measure of damages in the case of a man’s death is not limited to the pecuniary-value of his life to his estate; but may be exemplary, punitive, and given as a solatmm. Matthews v. Warner, 29 Gratt. 576; Railroad Co. v. Noell’s Adm’r, 32 Gratt. 394. This boy, according to the evidence, was strong, healthy, sixteen years of age, fatherless, and with a widowed mother. To hold that such a boy’s pecuniary value to his estate by any table of probabilities was worth less than four thousand five hundred dollars -would require very close calculation, exclusive of the cost and expense of litigation. But it is certainly evident that it was not the intention of the legislature for the jury to be limited in their finding to the probable pecuniary loss. The law was to operate as exemplary and punitive, as well as compensatory, but not penal, in any proper- case. Ricketts v. Railway Co., 33 W. Va. 433 (10 S. E. Rep. 801.) Any damages imposed in such cases are a forfeiture for the wrong done, occasioned by tlie neglect of a legal duty, and, so far as the aggressor is concerned, are intended to be corrective, in tender consideration of human life. A verdict of four thousand five hundred dollars will illy remunerate a widowed mother for the loss of a strong, healthy, industrious son of average intelligence, sixteen years of age, yet it is to be hoped that it may have the effect to either deter the defendant and other [689] similar corporations from employing minors in dangerous occupations, or to cause tlieir agents to be more vigilant in protecting sucli youthful employes from the culpable negligence of those having them in immediate charge, and to whom they owe the duty of obedience.
In any view of this case, the damages found are not excessive, and no error has been committed to the prejudice of-the defendant, and the judgment is therefore affirmed.