The opinion of the court was delivered by
Read, J.The only real error assigned in this ease is to the charge of the judge on the subject of damages, which was in these words: “ The question of damages is for you. Should you feel it necessary to examine that question, let fair and exact justice be your guide, and your own good sense will determine it.” This was clearly wrong; and is covered by the decision of this court in the Pennsylvania Railroad Company v. Zebe: 9 Casey 318.
Under Lord Campbell’s Act, it is now entirely settled in England, that actual pecuniary damage must be proved to have been sustained by the relatives of the deceased person, and that the person for whose benefit the action is brought had some pecuniary interest in the life of the person killed. It was intended by the act, to give compensation for damage actually sustained, and not to enable persons to sue in respect of some imaginary damage, and so punish those who are guilty of negligence, by making them pay costs.
The present Lord Chancellor (Campbell), in the late case of The Attorney-General v. Brunning, in the House of Lords, 3 Daw Times Ií. (H. S.) 36, decided on the 23d May last, says: “ It is then urged, that probate is only to be granted of that which is of definite value; that the executor could have put no definite value on his right to sue upon this contract, and that an executor might as well be called upon to include in his return of the estate and effects of the testator, the value of his hope of recovering damages under a recent act of parliament, if the testator had come to his *304death by the negligence of a railway company. But this is only a-renewal of the objection that the only course for the executor to take was to sue for damages in respect of the breach of contract, waiving his remedy by bill for specific performance or by petition, by which the exact amount of the purchase-money might have been recovered. The sum to be recovered in case of death, by negligence,-truly would not be subject to probate duty, for it is not made part of the estate of the deceased, and on the con-1 trary the act of parliament directs it to be appointed among the family of the deceased, according to the pecuniary loss which they are supposed respectively to have suffered from the bereavement.”
This is clearly the meaning also of our Act of 26th April 1855, which limits the persons entitled to recover damages to the husband, widow, children, and parents of the deceased, and which provides that the sum recovered shall go to them in the proportion they would take his or her personal estate, in case of intestacy, and that without liability to creditors. The sum to be recovered is, therefore, the pecuniary loss which the plaintiffs have suffered from the death of their relative ; and this is made more certain by the provision, that no other relative, and of course no other person, than those named, can recover anything; as to all the world except the designated relatives, the old law remains.
The Scotch law differs from the English law,' both as to the right to recover, and the measure of damages, the former including a solatium, for wounded feelings, as well as an indemnification for damages: Paterson v. Wallace, 1 Macq. Souse of Lords Cases 748; Paterson’s Compendium of English and Scotch Law 183, n. 4; and it would seem, that the same doctrine prevailed by the civil law, and by the law of France: Cary v. Berkshire Railroad Co., 1 Cush. 480.
Such, however, is not the measure of damages in Pennsylvania, nor we believe in most of our sister states, it being confined to the pecuniary loss, and not including any solatium whatever. In this view of the subject, it is clear, that the court below should ..have given definite instructions to the jury, as to the true measure of damages, for under the broad rule laid down, they might have thought it within their province to give a solatium for wounded feelings* or highly vindictive damages.
It is more necessary, in cases of death, to lay down the rule of damages clearly and distinctly, as it applies, as is correctly said by a learned judge, “ not only to great railway companies, but to little tradesmen, who send out a cart and horse in the care of an ' apprentice.” And so sensible have been some of our neighbouring sister states, such as New York, New Jersey, and Ohio, of the danger of excessive damages in such cases, that they have limited them to five thousand dollars, an example which we have not yet followed.. There is nothing in the other two specifications of error.
Judgment reversed, and a venire de novo awarded.