The opinion of the court was delivered,
by Thompson, C. J.The first thing we shall notice is the complaint of error in allowing the record to be amended at a term antecedent to the trial below, by changing the names of the plaintiffs. This the Act of the 4th of May 1852 fully authorized, if made apparent to the court that there was an error in the original institution of the suit. But we will not dwell on a matter so well settled, as the right of the court to allow such an amendment as was permitted in this case, on considerations which-showed that in justice it ought to be made. The authorities cited by the counsel of the defendants in error fully prove this. But we discover no exception taken when the amendment was ordered, and this is at once an answer to this matter of complaint.
Afterwards, and on the trial, the amendment was attempted to be overthrown and the plaintiffs put out of .court by an appeal to the jury, occurring in this wise. Evidence was offered to show that Louisa Keller, the meritorious plaintiff, had at one time applied for a pension, as the widow of one Anker, being at the time married to Keller, and obtained the same in fraud, as is alleged, of the pension laws, and that this suit was brought in the same name to cover that fraud, and therefore-she was not entitled to the amendment in the case referred to, and consequently not entitled to maintain this suit. There was a point to this effect put to the court to charge upon, but of what evidence it was predicated we know not. The learned judge refused so to charge, and told the jury that the case was to be tried as the parties appeared on the record, precisely as if it had been so brought in the first place. This was right beyond a peradventure, and the error is *306not sustained. Nor is there any error in the 2d and 4th assignments.
The 5th error assigned raises a question of the right of plaintiff, Louisa Keller, to recover for the loss occasioned by the death of her son by negligence of the company, he being over age at the time. But our learned brother charged, in answer to the point on that subject propounded, that if the family relation still existed between mother and son, at the time of the death, and there were reasonable grounds on her part to expect future pecuniary advantage from the continuance of this relation, as in the past since arriving at age, the destruction of such expectations by the negligence of the defendants in causing his death, it would sustain the action, and referred the facts in evidence to the jury. This was right, or the .case of The Penna. Railroad Co. v. Adams, 5 P. F. Smith 499, was wrong, a conclusion which we are by no means prepared to make. This error is therefore not sustained.
The material question in the case is raised by the defendants’ 4th point, and the answer thereto. The point was, “that any recovery had in this case must be strictly limited to a pecuniary compensation for a loss actually shown to have resulted from the negligence of the defendant.” The learned judge agreed, and charged that any. recovery in the case must be strictly limited to a pecuniary compensation for the pecuniary loss resulting to the plaintiff, but added, “ it is not necessary, to enable the plaintiff to recover damages for the death of her son, that the evidence should show the precise amount in dollars and cents. From the nature of the case, the precise and definite amount of the damage cannot be actually shown. But the evidence must clearly show that the plaintiff did actually sustain damages — pecuniary damages or loss.” This was the view taken by the learned judge of the 2d section of the Act of 4th April 1868, which he conceived to be required, as a reasonable interpretation of it. In this we all agree.
The construction contended for by the company, would, beyond a question, deny compensation for death by negligence in almost every conceivable case. Is it possible to become reconciled to the belief that the legislature intended, that by the terms used in the section, there lurked a repeal, by implication, of existing remedies for the greatest of' all civil wrongs, the deprivation of life of husband or wife, or parent and child, by negligence? We cannot impute such an intention, unless the words will bear no other meaning. I certainly believe they do. A plain'reading of them shows a purpose to declare what the courts had said by construction to be the rule, in giving compensation under the Act of 1855, for the loss of life, viz., that it was to be measured by the pecuniary value and loss thereof to the parties entitled to compensation, and thus make that rule plain and uniform. I con*307fess that until the views of the counsel for the plaintiff in error were presented, I never suspected such a construction possible. It was natural to entertain the belief, as I did, that if the legislature meant to take away the remedial provisions of the Acts of 1851 and 1855, it would have said so, and hence I supposed the section in question was a declaratory enactment merely, and I believe so yet, notwithstanding the able and earnest argument of the counsel, that it meant more than this. The words are: “In all actions now or hereafter instituted against common carriers or corporations, owning, operating or using a railroad as a public highway, whereon steam or other motive power is used to recover for loss or damage sustained, and arising either from personal injuries or loss of life, and for which by law such carrier or corporation could be held responsible, only such compensation for loss or damage shall be recovered, as the evidence shall clearly prove to have been pecuniarily suffered or sustained, not exceeding, in case of personal injury, the sum of three thousand dollars, nor in case of loss of life, the sum of five thousand dollars:” Annual Digest by Brightly, 1521.
Now, it seems to me, the'very limitation of the amount which may be recovered, implies that that amount may be given in a proper case; hut how such a sum could be "given, in the restricted view taken of the act, I cannot see. The act says, only such damages shall be allowed as the evidence shall clearly prove to have been pecuniarily suffered or sustained. These words are exclusively in the past tense, and if so construed-no damages whatever could be allowed. No damage, under the act, could be said, to have accrued to- any one until the death resulted, and none can be allowed by the terms of the act but such as have been sustained by the destruction by negligence of the life, and as these words do not apply to the future, no damages at all could be given. This' view is, however, utterly unreasonable, we think, and not to be entertained for a moment. In this way, it strikes us, it denies all damages under this act, as well as under the Acts of 1851 and 1855.
But there is another aspect of it which will result from the principle insisted upon, viz., that the test of the right to recover being the “ pecuniary damages clearly proved to have been suffered,” it will follow that all those who from youth, old age or other circumstances, are non-producers, may become the victims of negligence without any compensation to survivors. Nay, more, the corollary of the postulate would prevent compensation where the survivors are absolutely benefited by the death, either as gainers by a distribution of the property of the deceased, or by the riddance of a troublesome charge. The controversies which would arise, if this were the rule, would be repugnant and offensive to the sensibilities of every person. The law expresses no such *308idea, and we are not to give to it that operation by construction. Compensation for the loss of life was given to certain survivors by the Act of 1855. The law chose to regard it as property in a certain sense. It was to be estimated by the same standard as property, viz., its pecuniary value, not to be enhanced by any considerations of pain to the deceased, or anguish to the survivors. Life, by law, had a value for the loss of which the survivors had a right to be compensated, in view of its circumstances. In estimating it, considerations that personal exertions may ever be required of its possessor, or the possible want of capacity in such possessor, are not to be taken into account. • All stand on a platform common to their positions, and the value of the loss to be .compensated is to be estimated with a view thereto. None are without value in the eye of the law, and because there are difficulties in the way of determining the question of value, it' is not a good reason for denying it altogether. The sound sense of the jury must ascertain the pecuniary value by which” it is to be estimated from the evidence in the case, as best they may: Railroad Company v. Barren, 5 Wal. U. S. Sup. Ct. Rep. 90. This last case arose in Illinois on a statute somewhat similar to the one in question. There the provision is, that in every such action “ for death, occasioned by negligence, the jury may give damages as they shall deem a fair and just' compensation with reference to the pecuniary injuries resulting from such death, not exceeding,” &c. In that case (and it supports our view) it was held by the Supreme Court of the United States, that it 'is not necessary to the recovery that the widow and next of kin shall have had a legal claim on the deceased for support. This could only be asserted by regarding the life as property, to be compensated without' regard to past earnings or capacity to earn at the time of death.
We ought to regard the Acts of 1855 and 1868 as in pari materid; they concern the same statutory rights, and neither contains what the other does, but both make a system. Together, they give a right of action, and fix a standard of compensation for the injury to be compensated. In this aspect we 'see utility in the section of the Act of 1868 referred to, and we escape a construction destructive of the rightof action in case of death, given by the Act of 1855. We think our brother laid down the law with entire accuracy, when he held the loss must be estimated by its pecuniary value, but the evidence need not show the precise amount in dollars and cents. That was for the jury to find under the evidence.
As we see nothing in the record to correct,
The judgment is affirmed.