dissenting.
Mr. Justice Hocker, and the writer are unable to agree to the reversal of this judgment.
The declaration alleges and there is sustaining evidence to support its allegations, that the boy took passage on a. rear coach of the train in Jacksonville as it was about to leave for Pablo; that he was ordered out of that coach by au employee of the company because the coach was to be taken off; that he went into another coach which. *6became the rear coach, as the last three were cut off; that he went through the train attempting to find a seat in the coaches, but found not only that there was no seat but that the aisles themselves were crowded and he found a seat on the step of the platform that was also filled with passengers. While so seated the conductor took up his ticket without any warning of the danger. By pressure from behind he was forced to stand holding on to a supporting iron rod; and that by a sudden and unusual jarring of the train just as it was reaching the station at Pablo he was thrown from the car, dragged under the train and his life crushed out. We are not now concerned with the conflicting evidence to the contrary; these conflicts having been settled by the jury’s verdict.
Upon these facts the liability of the company is shown. Even in those States where contributory negligence is a complete defense and not a partial one as in this State in this class of cases, the modern trend of authority upholds the right of action. Lynn v. Southern Pacific Co., 103 Cal. 7, 36 Pac. Rep. 1018, 24 L. R, A. 710; Graham v. McNeill, 20 Wash. 466, 55 Pac. Rep. 631, 43 L. R. A. 300; Chicago & A. R. Co. v. Dumser, 161 Ill. 190, 43 N. E. Rep. 698; Norvell v. Kanawha & M. R. Co., 67 W. Va. 467, 68 S. E. Rep. 288; Chesapeake & O. Ry. Co. v. Lang’s Adm’r., 100 Ky. 221, 38 S. W. Rep. 503; 40 S. W. Rep. 451; 41 S. W. Rep. 271; Trumbull v. Erickson, 97 Fed. Rep. 891; Olivier v. Louisville & N. R. Co., 43 La. Ann. 804, 9 South. Rep. 431; Yazoo & M. V. R. Co. v. Byrd, 89 Miss. 308, 42 South. Rep. 286. The cases of Worthington v. Central Vt. R. Co., 64 Vt. 107, 23 Atl. Rep. 590, and Camden & Atlantic R. R. Co. v. Hoosey, 99 Pa. St. 492, cited to us by plaintiff in error look the other way, but we cannot follow them to the extent of holding that *7mere physical ability' to find standing room within a coach imputes as matter of law such negligence as to bar recovery, when the passenger is a boy who might be crushed or smothered on the warm day by the overcowding of adult passengers, and who is knowingly accepted as a passenger with others while seated on the steps of the platform, pertinent facts not involved in those cases.
Is it due process of law to permit a father suing for the negligent killing of his son to recover for the mental pain and suffering of the mother, in addition to his own? The statute clearly permits such recovery, and for the first time in this court is the power of the legislature questioned.
In approaching a solution we must bear in mind that the mother, independent of the statute, has no right of recovery and that this unusual provision for recovery of damages is based upon the biblical injunction, “they twain shall be one flesh” and the headship of the husband in that relation. The first thought prevents the idea that the mother is deprived of any right or that the defendant might be in danger of an action by her for the injury done. The existence of the husband and father precludes any possible action by her.
No precise definition has been given to the term “due process of law,” but at least this plaintiff in error has had its day in court upon a sufficient declaration and with every opportunity to present its defense, followed by a judgment the payment of which is its ample protection. There is, it is true, an unusual element of damage presented, which is not however wholly disconnected with the injury inflicted by the negligent act. The mental *8pain and suffering of the wife and mother of necessity acts and reacts upon the husband and father; the recovery by the husband and father, as the legal representative of the deceased minor child, whatever that may mean, redounds measurably to the benefit of the wife and mother.
The damages allowed by the statute bear some relation to smart money, and also may be referred in a general way to the head of police power. Just such state of facts as is shown in evidence here, the negligent overcrowding of excursion trains, niay have produced in the legislative mind the necessity for more drastic measures than the law then afforded.
While the legislation might, in our judgment, be more wise, if it gave a definite measure for the damages to be allowed,' our power to pass upon the wisdom of that branch of our government, comes into play only when the unwisdom can be planted squarely upon some specific inhibition of the State or Federal Constitution, and this we cannot find.
The constitutionality of the statute generally has been but recently upheld by this court in a case cited in the opinion prepared by Mr. Justice Whitfield, and we do not care to add to the views therein expressed.
The damages awarded appear large, but can we interfere?
In the Geiger case recently decided where the form of the motion is identical with this, the parties were both before the court on the argument and the motion was treated by all as a motion for a new trial. In the instant case, the minute entry shows that Hayes was not repre*9sented at the hearing, and there is nothing in the order by recitation or inference that he waived any rights to notice or to a hearing. There are some ex parte affidavits copied into the transcripts to the effect that counsel was notified by telephone and waived any desire to be heard, but we have provided by rules which have the effect of a statute law, how notice of these hearings may be made, and also that agreements between counsel shall be binding only when in writing. As the movant is not aided by anything said by the court, it was incumbent upon it to show a service or waiver as required by the rule and this it has signally failed to do. The motion, as a motion for a new trial, was not properly before the Circuit Court for consideration, and its denial does not therefore, in our opinion, properly present to this court the question of the excessiveness of the verdict. See Dupuis v. Thompson, 16 Pla. 69. Should we be in error, however, as to this point of practice, we would still refuse to interfere with he -verdict which has met the approval of the trial court. We know of no safe guide whereby to justify an interference by us. The verdict is undoubtedly large, but the loss was also a severe one, and it can be estimated as exactly by a jury and trial court as it can be by us, who are circumscribed by the Constitution to strictly appellate supervisions. Thére is no possible connection or definite ratio between the money loss and the mental agony, and if we are to interfere we ask for some yard stick whereby to measure. The vast number 'of judgments in the reported cases for physical injuries form some guide to the courts now, and have established as it were a common law upon that subject, but for the mental anguish Of a parent for the blotting out of the life of a beloved child, the reported cases furnish no light.