street in the village. A person is not a trespasser who crosses a street at a place other than a public crossing, or the intersection of other streets: Brunswick etc. R. R. Co. v. Gibson, 97 Ga. 489, 25 S. E. 484, 5 Am. & Eng. R. R. Cas., N. S., 441. And if the injury occurred so near a public crossing that the means required to be adopted by those operating the train to enable a traveler to cross in safety at the public crossing, if carried out, would have enabled the person injured to cross in safety at the place of the accident, we think the liability of the defendant will be measured by the legal principles applicable to public crossings: Baltimore etc. Ry. Co. v. Owings, 65 Md. 502, 5 Atl. 329, 28 Am. & Eng. R. R. Cas. 639. Whatever may be the rule as to the duty of a railroad company to keep a lookout for trespassers upon its track in general, we hold that in the streets of towns and villages, and in the immediate vicinity of public crossings, the company is bound to keep a lookout when making flying switches, or backing cars by the "kicking back" process, and that when it is apparent, or when in the exercise of reasonable diligence commensurate with the surroundings it should be apparent, to the company that a person on its track or about to get on its track under such circumstances is unaware of his danger or cannot get out of the way, it becomes the duty of the company to use such precautions by warnings, applying brakes or otherwise, as may be reasonably necessary to avoid the injury; for, as said by this court in Florida Cent. etc. R. R. Co. v. Williams, 37 Fla. 406, 20 South. 558, "though the plaintiff may have been guilty of contributory negligence in stepping upon the track immediately in front 66 of a moving engine, yet the defendant [under the act of 1887] is still liable for the injury if it could have prevented it by the exercise of reasonable and proper care after the discovery of the plaintiff's negligent act, or if it could have discovered it by the exercise of such care, in time to avoid the injury": Norfolk etc. Ry. Co. v. Burge, 84 Va. 63, 4 S. E. 21; Patton v. East Tennessee etc. Ry. Co., 89 Tenn. 370, 15 S. W.

919.

(4.) From what has been said it is apparent that the court did not err in refusing the fifth instruction requested by the defendant. True, it was the duty of the deceased to look and listen before crossing defendant's track, and if he failed to do so it was negligence on his part contributing to his injury, yet if the defendant, by failure to ring a bell, blow a signal or station a lookout, directly contributed to the injury, it would

Am. St. Rep., Vol. LXXIX-11

be liable to damages, diminished in proportion to deceased's contributory negligence. If, however, the failure of defendant to ring the bell, blow the signal or station a lookout, though negligent omissions on its part, did not directly or proximately contribute to deceased's injury, the defendant would not be liable.

manner

7. There was no error in giving the eleventh instruction requested by plaintiff. In the preceding paragraph we have considered all objections suggested by appellant, except the one which claims that defendant's duty under the circumstances of this case would have been completely performed by ringing the bell in the manner indicated by this instruction. The courtshave frequently condemned the dangerous practice of "kicking cars," or making flying switches, in populous localities and near crossings, and have almost uniformly held that the increased hazard of these practices over the ordinary 67 of railway operation imposes upon the company a duty to station a lookout upon the rear of the cars, the equivalent of which is not accomplished by ringing the engine bell: 2 Wood on Railroads, sec. 323, p. 1517; 3 Lawson's Rights, Remedies, and Practice, sec. 1187; 2 Shearman and Redfield on Negligence, sec. 471; Beach on Contributory Negligence, sec. 194. This precaution is much more effective than the simple ringing of a bell, and if persons are injured on or near crossings, or other places much frequented, where by the exercise of this precaution the injury could have been avoided, the company will be liable. If it be true, as contended by plaintiff, that the deceased when injured was crossing defendant's track, oblivious of the approach of a train, holding an open umbrella in such a manner as to obstruct his view of an approaching train, and a lookout stationed upon the rear of the car, in the exercise of reasonable diligence, could and would have discovered the plaintiff's perilous situation in time to avert the collision by warnings, application of brakes or otherwise, then the failure to put a lookout on the rear of such train was negligence on defendant's part, contributing directly to the injury, and the plaintiff would be entitled to recover; the jury diminishing the damages in proportion to the default attributable to the deceased: Florida Cent. etc. R. R. Co. v. Williams, 37 Fla. 406, 20 South. 558.

9. The tenth instruction requested by defendant was properly refused. It is argued that the statutes then in force (McClellan's Digest, sec. 33, p. 287), only required defendant to ring its engine bell before crossing the streets of an incorporated town.

This statute does not purport to define defendant's duty in this respect outside of incorporated towns, but leaves that to be determined 68 upon common-law principles. Independently of statute, it is the duty of those in charge of a train to give notice of their approach at all points of known or reasonably apprehended danger. This follows from the general rule requiring them to measure their precautions by, and to make them reasonably commensurate with, the conditions and circumstances by which they are surrounded: Chicago etc. R. R. Co. v. Dillon, 123 Ill. 570, 5 Am. St. Rep. 559, 15 N. E. 181, 32 Am. & Eng. R. R. Cas. 1; Winstanley v. Chicago etc. Ry. Co., 72 Wis. 375, 39 N. W. 856, 35 Am. & Eng. R. R. Cas. 370; Loucks v. Chicago etc. Ry. Co., 31 Minn. 526, 18 N. W. 651, 19 Am. & Eng. R. R. Cas. 305; Hinkle v. Richmond etc. R. R. Co., 109 N. C. 472, 26 Am. St. Rep. 581, 13 S. E. 884; Durkee v. Delaware etc. Canal Co., 88 Hun, 471, 34 N. Y. Supp. 978; Delaware etc. R. R. Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. Rep. 569; Louisville etc. R. R. Co. v. Commonwealth, 13 Bush, 388, 26 Am. Rep. 205; Gates v. B. C. R. & M. R. Co., 39 Iowa,

45.

10. By the common law no damages were recoverable for the death of a human being. We are, therefore, without precedents as to the measure of damages in cases of this character, other than those based upon the construction of statutes varying in their language. A great majority of the courts of this country have held that in actions of this character the loss of the society of the deceased cannot be considered in estimating damages. The basis for this array of precedents is the opinion of the English court, construing Lord Campbell's act, in Blake v. Midland Counties Ry. Co., 16 Jur. 562. We have examined a multitude of these cases, and in none of them have we found any reason given for disallowing this element, except in Pennsylvania 69 R. R. Co. v. Zebe, 33 Pa. St. 318, and the decision in this case is confessedly based upon, and the reasons given are practically those of, the English case. In the Pennsylvania case the main question considered was whether damages for mental suffering or wounded feelings could be allowed, and incidentally the court held that loss of society falls within the same category with mental suffering and should be disallowed. The English case, though confined entirely to the question of mental suffering, has been generally cited as authority for excluding damages for loss of society and protection of a husband. The reasoning of that decision is based upon four propositions: 1. The title

70

of the act, "An act for compensating the families of persons killed by accident," not "for solacing their wounded feelings"; 2. The provision requiring the jury to divide between the persons for whose benefit the action was brought the amount recovered in such shares as they thought proper, and the impracticability of estimating and dividing the damages for mental anguish of and between the numerous persons for whose benefit the action is brought; 3. Because the language of the act seemed more appropriate to a loss of which some estimate might be made by calculation than an indefinite sum, independent of all pecuniary estimate, to soothe the feelings; and 4. "If a jury were to proceed to estimate the relative degrees of mental anguish of a widow and twelve children from the death of the father of the family, a serious danger might arise of damages being given to the ruin of the defendants." In the Pennsylvania case it is said that such damages are speculative and fanciful, and it is there asserted that the great merit of the English rule is that "it is one of equality, compensating the rich and the poor, the refined and the cultivated, and those less To so, by the simple standard of pecuniary loss." While our statute has several features in common with Lord Campbell's act, it is essentially different in many important particulars. Unlike the English statute, it is not one for "compensating families," but one "fixing the liability of persons and corporations for damages resulting from death," etc. Our statute, unlike the English one, by giving a right of action to the administrator of the deceased, imposes the liability whether there be a family to compensate or not. Its effect was to abrogate the common-law rule, for which, if any reason ever existed, the world has long since outgrown it, denying damages for human life, and to affix a penalty by an award of pecuniary damages for a careless or wrongful act resulting in another's death. In authorizing suits to enforce this liability, our act gives the right to those who are supposed to suffer most by the death of the deceased, but on no account does the action fail for want of a person to sue, as with Lord Campbell's act. Other points of dissimilarity between them are: Under the English statute the suit is brought by the administrator for the benefit of the beneficiaries, while the beneficiaries sue directly under our statute. Under the English statute the jury are required to apportion or divide the recovery among all the beneficiaries, while under ours no division is made, by the jury; and, indeed, if there be a husband or wife surviving, the exclusive right of

action inures to him or her without reference to other members of the family. And so with minor children and dependents, the existence of a higher class of persons authorized to sue in the order named in the statute debars all other classes from any right of action themselves, or from participation in the recovery by the higher class: Duval v. Hunt, 34 Fla. 85, 15 South. 71 876. In the Duval-Hunt case we held that where the suit was brought by dependents, their recovery was limited to an amount equal to the present worth of a future support for plaintiff, estimated upon the basis therein mentioned. This view is entirely consistent with, and plainly conformable to, the nature and extent of the damages proximately suffered by one dependent upon the deceased for a support only, because he has lost nothing by the death of the deceased except the support which he would have received had deceased lived; but it was not thereby determined, as insisted upon by the appellant, that the same rule for assessing damages for a dependent would apply to a suit by the wife or any other person authorized by the statute to sue. Our statute requires the jury to give such damages "as the party entitled to sue may have sustained by reason of the death of the party killed," not such damages as the deceased might have recovered had he lived, as contended by appellee. It is clear, therefore, that a widow is not entitled to recover for the pain and suffering of the deceased, because that is not a damage sustained by her, but by the deceased, and dies with his person, unless an administrator can recover therefor in a suit by him under the statute, as to which we express no opinion. The statute failing to declare what particular elements enter into the damages sustained by a widow by reason of the death of her husband, and the common law furnishing no guide for estimating damages sustained by one from the death of another, we must necessarily have recourse to the general rules governing the assessment of damages in other actions, and among the first we find that "the object of awarding damages is to give compensation for pecuniary loss; that is, to put the plaintiff in the same position so far as money can do it, as he would have been 72 if . . . . the tort had not been committed": Sedgwick on Damages, sec. 30. Another is that the damage to be recovered must always be the natural and proximate consequence of the act complained of: Sedgwick on Damages, sec. 122. Applying these principles to this case, it is proper to inquire, Who is the plaintiff? Of what wrongful act does she complain? What has been the natural and proximate