The opinion of the.court was delivered, January 3d 1871, by
Thompson, C. J.— Only two or three of the numerous assign*399ments of error in this case, we think, call for any special notice at the hands of this court. We regard the others as self-vindicated.
It was contended in argument, on part of the plaintiff in error, that the plaintiffs below had the onus of showing affirmatively that the deceased was guilty of no negligence or want of care at the moment of the disaster to him. This is in one sense the rule, but not as broadly as it has been stated. It is true that negligence on his part would defeat the plaintiff’s right of recovery; but to call witnesses to declare the absence of negligence of the kind insisted on, or to prove acts negativing negligence before the defendant is bound to answer, is not required in the first place. It is not a necessary averment in the narr., and is, therefore, not required to be proved until the opposite is set up in defence. It is true, if negligence appear by the plaintiff’s own testimony, the defendant might rest on it as securely as if proved by himself. As the love of life and the instinct of preservation are the highest motive for care in any reasoning being, they will stand for proof of care until the contrary appears: Railroad v. Hagan, 11 Wright 244; Railroad Co. v. Hall, 11 P. F. Smith 361; Allen v. Williard, 7 Id. 374. But there was proof of acts on part of the deceased clearly evincive of care on part of the deceased before he took the fatal step, to wit: looking and apparently listening in the direction of the approaching train. His advance, and that of his companion, a young lady, who was also struck and injured at the same time, corroborated what the witness testified .to, viz : that they took the ordinary precaution to avoid danger by looking and listening before they stepped on the track. This was referred to the jury on the question of care on part of the deceased, and they have found, in accordance therewith, that there was no negligence. There was no error in this, and this assignment is not sustained.
2. But we think there was error in affirming the plaintiff’s 6th point, in regard to exemplary damages. There may be some dicta previous to the Act of 4th April 1868, seeming to favor this idea, but the reasoning of all the cases, when carefully considered, is the other way; but the last-named act settles the law very definitely, if the least doubt existed as to the rule, and this act was in force when this cause was tried. The portion of the act I refer to is as follows: “ In all actions now or hereafter instituted against common carriers, or corporations, * * * to recover for loss of life * * * and for which by law, such carrier or corporation could be held responsible, only such compensation for loss * * * shall be recovered as the evidence shall clearly prove to have been pecuniarly suffered or sustained.” I understand this to have been the rule prior to the passage of the act, notwithstanding a dictum or two to the contrary. It is now-the rule-of this statute, and as such to be obeyed where the action is for the loss of life. __ I say *400nothing about the cases of “personal injuries” not followed by death. The rights of action in the class of cases mentioned in the act are of different origin. The one is, and ever has been, a common-law right — the other is exclusively statutory, and capable of restriction and limitation by the legislature. Even where exemplary damages may be given, and it cannot be denied there are instances in which they are allowable, they are not given as compensation, but as a punishment for the wantonness or bad conduct of the wrongdoer, — not because the recipient of them has sustained a loss measured by them. In this act there is a stringent prohibition against the recovery of any damage for loss of life not pecuniarily suffered; exemplary damages would therefore directly conflict with this provision of the act, if allowed. This view sustains, beyond controversy, the error assigned, and for this reason the judgment below must be reversed.
There was no error in instructing the jury, that in assessing damages, they might include nursing after the injury and before death, medical expenses if any, and funeral expenses. This we said in the Railroad Co. v. Bantom, 4 P. F. Smith 495, and in other eases which I cannot lay my hands on at this moment. The Act of 1868 does not change this rule.
We discover no error in what was said in relation to the company. The question of negligence on their part, as well as on part of the deceased, was properly left to the jury, with adequate instructions. We have no fault to find with them. But for the reason given, this judgment must be reversed.
Judgment reversed, and venire de novo awarded.