The opinion of the court was delivered, by
Woodward, C. J.This was an action by a widowed mother *378for an injury inflicted upon her minor son. The tort complained of did not consist in personal violence wantonly inflicted, but resulted from negligent performance of a contract which the railway company had assumed, to carry the son safely as a passenger. He entered one of their cars as it was going up Arch street, and in the act of leaving it a premature start of the car precipitated him under another of their cars which at the moment was passing down the street, and he was badly hurt. The proof was, that he had paid his fare. The implied contract to cany safely included the duty of giving him a reasonable opportunity to alight in safety from the car, and if the company violated this part of their duty, it was culpable negligence for which an action would lie. But as the contract was made with the minor and for his benefit, can the mother maintain an action for the tort growing out of it ? This is the only question upon the record.
The son, a young man eighteen years of age, lived with his mother, and occasionally earned money for her by small jobs of labor, and she nursed him after he was hurt, and furnished medical attendance. The evidence was sufficient, had the action been by a father, to establish the relation of master and servant, and it ' is in right of such a relation, rather than in her character of parent, that the mother claims damages in this action. There was no evidence of an express contract between the mother and son by which she was entitled to his services, and at law she has no implied right to them.
A father is bound by law to support and educate his children, and is entitled to the correlative right of service, but a mother not being bound to the duty of maintenance, is not entitled to the correlative right of service, and the relation of mistress and servant can be constituted between them only as it may be constituted between strangers in blood, save that less evidence would perhaps be sufficient to establish it: South v. Denniston, 2 Wright 477 ; Leech v. Agnew, 7 Barr 21.
By the Act of 16th June 1836, the mother of every poor person not able to work, if she be of sufficient ability, may be charged to relieve such poor person at a rate to be prescribed by the Court of Quarter Sessions, under pain of forfeiting a sum not exceeding twenty dollars a month; but her right to such an action as the present cannot be rested upon this contingent liability. It is true that the injury her son received increases the probability of his becoming chargeable upon her under the statute, but no liability has yet attached, and no statutory proceeding has been instituted. If the action was grounded upon such a statutory liability, it would be set forth in the declaration, and the damages wrould be limited to the statutory measure. In actions for seduction, where the loss-of service is the gist of the action, the cases have gone very far in implymgXnghtoT^emceñí very slight evidence *379of service, and that in favor of either parent, or of any one else standing in laamparentis. Yet in Logan v. Murray, 6 S. & R. 170, where the daughter had come pregnant into the mother’s service after the death of her father, in whose service she had been debauched, this court refused to recognise the constructive relation of mistress and servant between the mother and daughter, though the latter was actually assisting about household duties, and the mother defrayed the lying-in expenses. And again, in South v. Denniston, where the seduction took place after the death of the father and while the daughter was out at service, the _ mother was denied her action. But here a distinction is to be 1 taken between torts. Actions for seduction, like actions by parents or masters for batteries, per quod servitium amisit, are founded in pure wrong, are wilful trespasses upon the rights of the master in the person of the servant, for which, according to the English cases, either trespass or case will lie : Destcham v. Burd, d 3 Mau. & Selw. 436; Woodward v. Walton, 2 N. Y. R. 476; Chamberlain v. Hazlewood, 5 M. & W. 515. With us the action is commonly ease, per quod, for seduction of a daughter or injury of a son ; though in Ream v. Rank, 3 S. & R. 215, and West v. Vickers, 8 Wright 227, it was intimated that if the minor child be living in the father’s house at the time the injury is done trespass is the more proper remedy, but if out of it, case.
Í Torts that spring from contract, that consist in mere omission of a contract duty, are strongly distinguished from the above. class of wrongs, and for these no legal remedy exists except by an , action on the case, and in this class of cases the action must be ' by the party injured, and cannot be brought by the master orw mistress. The late case of Alton v. The Midland Railway Co., reported in the Jurist of August 1865, p. 672, is full to the point. It was an action on the case against a railway company for carelessly carrying the servant of the plaintiff, one Charles F. Baxter, whereby he was injured and the plaintiff lost his services. Plea that the defendants contracted with the said Baxter and that they did not contract with the plaintiff. Demurrer to the plea. The case was very fully argued upon the authorities, and Erie, C. J. of Common Pleas, in the course of his opinion, said: “ I take the/ law to be clear that where a master loses his servant’s services 1 by an act ex delicto the master has a right of action for the lossi he has sustained. But in all cases where the master has recovered l the injury has arisen from a wrong; and there is no instance \ where damages have been given in breach of a contract. Look- I ing at all the authorities there is not one in which the master re- \ covered for a consequential damage in a contract between the servant and the defendant.” Equally emphatic and precisely to the same effect were the seriatim opinions of Willes, Byles and Smith, Justices.
*380It occurred to me that the only ground upon which our case could he distinguished from the above was the infancy of the servant, it not appearing that the servant in that case was an infant, and I examined several of the authorities referred to by the counsel in that case and of which the judges spoke so confidently, without finding one where the party injured was a minor servant. It would seem, so far as I have been able to look into the English cases, that they make no account of the circumstance of infancy. And, perhaps, upon principle none ought to be made, for a minor is competent to contract for his own benefit, and as his contracting power is limited to his necessities and advantages his contracts cannot possibly enure to the benefit of another. This young man might lawfully hire his passage by a public conveyance, and may assert all the rights accruing to him out of the contract; but it was not a contract with his mother nor one that énured to her benefit.
The duty to carry him safely was a duty which the company owed to him., and, said Byles, J., in the case cited from the Jurist, “ the law is clear and it would lead to alarming consequences if it were otherwise, that no man can bring an action for breach of duty but for a breach of duty to himself.”
/ Thus, then, this case stands — an action by a mother who has no I common-law right to the services of her son and no special con-1 tract which constitutes her his mistress. But if she really stood 4n that relation to him, her action is founded upon breach of a contract to which she was a stranger and which was not made in her service, as that in Alton’s case was made in the course of the master’s business. It' belongs not to the category of actions for I seduction, and no precedent has been shown to justify it, whilst 1 the English judges declare that in that country, so fertile in precedents, not one exists for such an action. When to these considerations we superadd the legislation which, both in England and in this country, has been necessary to give mothers a right of action for negligence that causes the death of a child, it seems very obviously our duty to declare that the action ought not to have been sustained and that the judgment must-be reversed.