Sedgwick, J.
The plaintiff, as administrator of the estate of Niels Rasmussen, deceased, brought this action against the railroad company to recover damages for the death of Niels Rasmussen, suffered by injuries received while a passenger from Grand Island to Omaha on one of the defendant’s trains. It was at Chapman that the accident occurred. [63] The train did not stop at this- station but maintained its speed of about forty or forty-five miles an hour. In passing this station, deceased raised a window and saluted an acquaintance on the station platform. He extended his head and right shoulder outside of the window and was waving his hand toward his acquaintance, until the train passed the station about two hundred feet, when he Avas struck just above the left ear by an iron ring, about fifteen inches in diameter, Avhich was suspended from a crane and holding a mail sack. His skull was broken by the blow, from which he died the following day.
The plaintiff recovered a judgment in the court below, which the company has brought to this court'for review.
1. The first contention is that the petition does not state a cause of action, because it does not contain the necessary allegation under our statute allowing pecuniary damages to the next of kip. The ground of this contention appears to be, that the petition alleges that prior to his death the deceased had entered into a contract with his parents- by which he was bound to support them, and since this contract would be enforceable against his estate, and there is nothing in the petition to shoAV that the estate is not ample for that purpose, the plaintiff can not. recover in this action. ' The petition contains an allegation that the deceased promised his parents to support them, and that this promise induced them to come to America to live, and that the parents were depending upon the deceased for the support so promised. It may be that some of the allegations of the petition in this connection Avere irrelevant and might have been striken out upon motion. It is proper in such a case to allege such facts in the petition as Avill show a pecuniary loss to the next of kin, and some of the allegations complained of were necessary and proper for that purpose. The petition shows that the father is the next of kin of. the deceased and contains the necessary allegation to enable the administrator to maintain this action in his behalf.'
2. It is complained that the court erred in admitting evi[64] deuce that the parents came to this country at the request of the deceased and relying upon his promise to assist them. It is urged that if the action is based upon our statute such evidence was immaterial and might have a prejudicial influence upon the jury in estimating the amount of damages, and that if the action is based upon the contract of the deceased with his parents then no recovery is allowable.
No recovery can be had under our statute except for pecuniary damage. The value in money of the life of one person to another person can not be determined by mathematical calculations from fixed rules. It is a matter to be estimated from all the conditions existing and surrounding circumstances, and is peculiarly within the province of the jury. The evidence in question tended to show that the parents were likely to have received substantial assistance from the deceased had he lived, and were proper for the jury to consider in arriving at a reasonable estimate of the pecuniary loss. The father was the next of kin under the law and the duty of supporting the mother devolved upon the father. Contributions to support the mother would be a pecuniary benefit to the father, which the jury might also consider in determining the father’s damage by the death of his son..
3. The principal question in the case is, whether the act of the deceased was, under the circumstances, such negligence on his part as will prevent recovery. It appears to be conceded that the company was guilty of negligence which directly contributed to the accident. The injury was caused by a heavy iron ring suspended from a crane which was used to enable trains when passing at full speed to receive or deposit sacks of mail. The post from which it was suspended was set a distance of about three feet from the side of a passing car and when not in use the iron ring was about eight feet from the car, but when placed in position so that the mail sack could be taken from the passing train this ring was about eight and one-half inches from the car. The train in which the deceased was riding was not a mail train, but the company’s agent [65] in charge of the apparatus, from some mistake not explained, turned the crane and prepared the mail sack so that it might he taken by this.train. But for this mistake of the company’s agent the accident could not have occurred, so that, the negligence of the company being established, the question, as above suggested, is, whether the act of the deceased was of such a nature as to prevent the recovery.
4. It is generally held to be negligence per se and to be so declared as a matter of law, for a passenger on a steam railway to voluntarily protrude his person through the window of a car while in motion and beyond the line outside of the car. The law requires railway carriers of passengers to exercise extraordinary diligence to accomplish the safe carriage of passengers so far as human skill and foresight can secure that result. But railways must construct and arrange their tracks, stations, grounds and equipment, and operate their trains to attain practical purposes in the transaction of their business. They have not been restrained from constructing tracks with switches in close proximity Avith each other when necessary. These and other conditions of a similar character justify the general conviction that the only place of reasonable safety for passengers is Avithin the cars.
In Georgia P. R. Co. v. Underwood, 90 Ala. 49, 8 So. 116, the supreme court of Alabama, by Judge McClellan, after citing a large number of cases which adhere to the above principle, say:
“Against this array of adjudged cases, and to the converse of the proposition stated, there is believed to be in reality but one authority. That is the case of Spencer v. Milwaukee & P. du C. R. Co., 17 Wis. *487, which takes the position, and supports it with vigor, that it is not negligence per se for a passenger to project his.arm out of the window of the car in which he is riding. Another case frequently cited and relied on to support this view is that of Chicago & A. R. Co. v. Pondrom, 51 Illl 333. The conclusion in that case, however, was rested on the doctrine of [66] comparative negligence — a doctrine which, if not peculiar to Illinois, certainly is not recognized in our jurisprudence; and Avhile the protrusion of the passenger’s arm from the Avindow of a moving car Avas admitted to he negligence, the judgment Avas allOAved to stand because plaintiff’s negligence was held to be less than that of the defendant.” He then revieAvs the authorities and says:
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Sedgwick, J.
The plaintiff, as administrator of the estate of Niels Rasmussen, deceased, brought this action against the railroad company to recover damages for the death of Niels Rasmussen, suffered by injuries received while a passenger from Grand Island to Omaha on one of the defendant’s trains. It was at Chapman that the accident occurred. [63] The train did not stop at this- station but maintained its speed of about forty or forty-five miles an hour. In passing this station, deceased raised a window and saluted an acquaintance on the station platform. He extended his head and right shoulder outside of the window and was waving his hand toward his acquaintance, until the train passed the station about two hundred feet, when he Avas struck just above the left ear by an iron ring, about fifteen inches in diameter, Avhich was suspended from a crane and holding a mail sack. His skull was broken by the blow, from which he died the following day.
The plaintiff recovered a judgment in the court below, which the company has brought to this court'for review.
1. The first contention is that the petition does not state a cause of action, because it does not contain the necessary allegation under our statute allowing pecuniary damages to the next of kip. The ground of this contention appears to be, that the petition alleges that prior to his death the deceased had entered into a contract with his parents- by which he was bound to support them, and since this contract would be enforceable against his estate, and there is nothing in the petition to shoAV that the estate is not ample for that purpose, the plaintiff can not. recover in this action. ' The petition contains an allegation that the deceased promised his parents to support them, and that this promise induced them to come to America to live, and that the parents were depending upon the deceased for the support so promised. It may be that some of the allegations of the petition in this connection Avere irrelevant and might have been striken out upon motion. It is proper in such a case to allege such facts in the petition as Avill show a pecuniary loss to the next of kin, and some of the allegations complained of were necessary and proper for that purpose. The petition shows that the father is the next of kin of. the deceased and contains the necessary allegation to enable the administrator to maintain this action in his behalf.'
2. It is complained that the court erred in admitting evi[64] deuce that the parents came to this country at the request of the deceased and relying upon his promise to assist them. It is urged that if the action is based upon our statute such evidence was immaterial and might have a prejudicial influence upon the jury in estimating the amount of damages, and that if the action is based upon the contract of the deceased with his parents then no recovery is allowable.
No recovery can be had under our statute except for pecuniary damage. The value in money of the life of one person to another person can not be determined by mathematical calculations from fixed rules. It is a matter to be estimated from all the conditions existing and surrounding circumstances, and is peculiarly within the province of the jury. The evidence in question tended to show that the parents were likely to have received substantial assistance from the deceased had he lived, and were proper for the jury to consider in arriving at a reasonable estimate of the pecuniary loss. The father was the next of kin under the law and the duty of supporting the mother devolved upon the father. Contributions to support the mother would be a pecuniary benefit to the father, which the jury might also consider in determining the father’s damage by the death of his son..
3. The principal question in the case is, whether the act of the deceased was, under the circumstances, such negligence on his part as will prevent recovery. It appears to be conceded that the company was guilty of negligence which directly contributed to the accident. The injury was caused by a heavy iron ring suspended from a crane which was used to enable trains when passing at full speed to receive or deposit sacks of mail. The post from which it was suspended was set a distance of about three feet from the side of a passing car and when not in use the iron ring was about eight feet from the car, but when placed in position so that the mail sack could be taken from the passing train this ring was about eight and one-half inches from the car. The train in which the deceased was riding was not a mail train, but the company’s agent [65] in charge of the apparatus, from some mistake not explained, turned the crane and prepared the mail sack so that it might he taken by this.train. But for this mistake of the company’s agent the accident could not have occurred, so that, the negligence of the company being established, the question, as above suggested, is, whether the act of the deceased was of such a nature as to prevent the recovery.
4. It is generally held to be negligence per se and to be so declared as a matter of law, for a passenger on a steam railway to voluntarily protrude his person through the window of a car while in motion and beyond the line outside of the car. The law requires railway carriers of passengers to exercise extraordinary diligence to accomplish the safe carriage of passengers so far as human skill and foresight can secure that result. But railways must construct and arrange their tracks, stations, grounds and equipment, and operate their trains to attain practical purposes in the transaction of their business. They have not been restrained from constructing tracks with switches in close proximity Avith each other when necessary. These and other conditions of a similar character justify the general conviction that the only place of reasonable safety for passengers is Avithin the cars.
In Georgia P. R. Co. v. Underwood, 90 Ala. 49, 8 So. 116, the supreme court of Alabama, by Judge McClellan, after citing a large number of cases which adhere to the above principle, say:
“Against this array of adjudged cases, and to the converse of the proposition stated, there is believed to be in reality but one authority. That is the case of Spencer v. Milwaukee & P. du C. R. Co., 17 Wis. *487, which takes the position, and supports it with vigor, that it is not negligence per se for a passenger to project his.arm out of the window of the car in which he is riding. Another case frequently cited and relied on to support this view is that of Chicago & A. R. Co. v. Pondrom, 51 Illl 333. The conclusion in that case, however, was rested on the doctrine of [66] comparative negligence — a doctrine which, if not peculiar to Illinois, certainly is not recognized in our jurisprudence; and Avhile the protrusion of the passenger’s arm from the Avindow of a moving car Avas admitted to he negligence, the judgment Avas allOAved to stand because plaintiff’s negligence was held to be less than that of the defendant.” He then revieAvs the authorities and says:
“We are, hoAvever, satisfied Avith the rule as formulated and supported by the great number of adjudged cases, and the texts to Avhich Ave have referred. The reasons upon Avhich they base the doctrine appear to be eminently sound. WindoAvs are not provided in cars that passengers may project themselves through or out of them, but for the admission of light and air. They are not intended for occupation, but for use and enjoyment Avithout occupation. No possible necessity of the passenger can be subserved by the protrusion of his person through them. Neither his convenience nor comfort requires that he should do so. It may be, doubtless is true, that men of ordinary prudence and care habitually lean upon, or rest their arms upon the sills of Avindows by which they ride. But this is a very different thing from protrusion beyond the outer edge of the sills, and beyond the .surface of the car. We can not concur in the assumption of the Wisconsin court that prudent men are habitually given to thus projecting themselves from the AvindoAvs of moving trains.”
The plaintiff does not contend that this is not a correct • statement of the laAV. In his brief he says:
“We have not to deal Avith the question, Avas Rasmussen guilty of a Avant of ordinary care? But rather does the petition disclose such conduct on his part as amounted to a reckless disregard of his own safety and the wilful indifference to the consequences liable to follow?”
This presents the real question with AAdiich we have to deal. Admitting that the act of the deceased was negligent and that his negligence contributed to the accident so that it could not have occurred Avithout this contributory negligence, w.as this negligence on his part of such character [67] as would prevent a recovery in this case? Our statute provides (Compiled Statutes, chapter 72, article 1, section 3; Annotated Statutes, 10039) :
“Every railroad company, as aforesaid, shall be liable for all damages inflicted upon the person of passengers while being transported over its road, except in cases where the injury done arises from the criminal negligence of the person injured, or when the injury complained of shall be the violation of some express rule or regulation of said road actually brought to his or her notice.”
The purpose and meaning of this statute has long been settled in this state. In Omaha, & R. V. R. Co. v. Chollette, 33 Neb. 143, the court, speaking by. Judge Maxwell, approved an instruction in the following language:
“The term criminal negligence, as it is used in the statute above quoted, is defined to be gross negligence. It is such negligence as would amount to a flagrant and reckless disregard of her own safety and amount to a wilful indifference to the injury liable to follow.”
This instruction was approved and followed in Missouri P. R. Co. v. Baier, 37 Neb. 235, where it was said:
“The purpose of the statute was not to fasten upon a common carrier of passengers a liability as insurer against any and all injuries while being transported upon the trains of such carriers, but it was rather intended to establish a presumption from the passenger receiving injury under the circumstances contemplated.”
And in Clark v. Zarniko, 106 Fed. 607; the United States circuit court of appeals adopted and applied this as the proper construction of the statute. The court said:
“The supreme court of Nebraska has defined the term ‘criminal negligence’ in this statute to be gross negligence;, such negligence as would amount to a flagrant and reckless disregard of one’s safety, or to a wilful indifference to the injury liable to follow. It has also declared that the purpose of the statute was not to fasten upon a common carrier of passengers a liability as insurer, but that it was rather intended to establish a presumption from an [68] injury to a passenger that the damages- inflicted by such injury were entirely attributable to the negligence of the railroad, company, and that to avoid liability it devolves upon the company to show that the-injury was imputable to the criminal negligence of the party injured, or to his violation of some express rule or regulation of the road actually brought to his notice.”
Other decisions of this court have recognized this as. the true meaning of the statute. It is difficult to see what other force can be,given to the word “criminal.” . It has no well defined legal meaning in such connection. It occurs, so far as the writer is aware, in no other similar statute in this state or elsewhere.
Such recklessness as is incompatible with a proper regard for human life is negligence which will render unintentional homicide criminal. 1 McClain, .Criminal Law, sec. 350. Gross negligence is criminal negligence as the word is used in the statute. A reckless, that is, without thought or care, disregarded of one’s own safety or a wilful indifference or intentional disregard of the consequences liable to follow is criminal negligence when accompanying the intentional doing of an act incompatible with a proper regard for one’s own life. The act of the deceased was in no way related to the duty of the carrier to its passengers; it was not necessary to his convenience or comfort as a passenger. lie was provided with a place to ride in safety within the car. It is known to every passenger of ordinary intelligence that, on account of passing trains on adjacent tracks, and other causes continually existing in the operation of the road, ,a slight extension of the human body beyond the side of a moving car is done with danger to life and limb.
“These conditions have always existed. They are customary and to a large extent indispensable. * * * The customary methods of constructing tracks, building bridges and running trains in railroad yards renders any exposure of a person beyond the car line imminently hazardous.” Benedict v. Minneapolis & St. L. R. Co., 86 Minn. 224, 57 L. R. A. 639.
[69] The deceased being an ordinarily intelligent young man knew this, and without any necessity whatever for so doing he elected to take the risk. The act, conceded to be negligent, it is clear was done knowingly and intentionally without heeding the consequences, and constitutes such gross negligence as will defeat a recovery.
The judgment of the district court is reversed and the cause remanded.
Reversed.