Opinion,
Mr. Justice Mitchell :The bill of exceptions contains the entire charge of the learned judge who presided at the trial, and a general exception on the part of the defendant. This was undoubtedly contrary to the rule of the court below, which requires that the several matters in the charge to which exception is taken, shall be distinctly stated before the jury shall have withdrawn, and that no general exception to the whole of the charge shall be *212allowed. This is a good rule. It tends to correct accidental errors in the statement of either the facts or the law, before they have had opportunity to do injury, and to encourage trials upon the merits of the real issues, and not upon trivial points or small inaccuracies, subsequently worked up, under the spur of an adverse verdict, into undue importance.
But the rule is meant to facilitate, not to impede the fair and accurate conduct of litigation, and there may therefore be cases where it is properly relaxed by the judge, for whose protection it was mainly enacted. Such was apparently the case here. It appears that two exceptions were formally taken, reduced to writing, and signed by the judge, but the paper having been mislaid, the judge allowed a general exception to the whole charge, and signed the bill in that form. This was entirely within his discretion to do, and the whole charge is therefore regularly before us for consideration.
Further objection is also made by the defendant in error to the assignments of error, but they are in substantial conformity to our rules. The charge is first given as a whole, and then the parts excepted to are separately and specifically assigned for error. This is the correct practice.
Passing, therefore, to the consideration of the assignments of error, we have at once an illustration of the wisdom and value of the rule of court referred to. The first assignment is that the learned judge erred in charging that the older boy had testified that the screen fell upon the plaintiff. By the testimony of Joseph Sternberger, this appears to have been an error, but it was, no doubt, a mere inadvertence, in attributing this testimony to “ the older boy,” which was Sternberger, instead of the “older brother,” Lawrence Leafey, who did so testify, an error which would no doubt have been immediately corrected and rendered harmless, had the judge’s attention been called to it as required by the rule of court. As it is, however, the error may have had an important bearing on the jury’s view of the case, because Sternberger was a much older boy, and his memory, therefore, entitled to much greater \yeight than Lawrence Leafey’s. This assignment is sustained.
The next five assignments are somewhat similiar in character, and need not be noticed in detail. They cover recitals of evidence to the jury, which though not perhaps strictly accu*213rate, are not as a whole substantially erroneous, and not likely to have misled the jury.
The seventh assignment involves a point of some importance in practice, namely, how far a judge may comment on the absence of evidence. The reasons why certain evidence which might naturally be looked for, may not be produced, are so many and so various, and sometimes so difficult of explanation, that obviously this is a kind of argument that requires careful handling, especially when used from the bench. But it is a legitimate instrument in the investigation of truth, and a libera] discretion in its use must be allowed to the trial judge, who is in a far better position to determine the occasion for it than this court possibly can be. The learned judge in his charge, alluding apparently to an argument that the child had not been injured as claimed, that in fact there had been no accident at that time and place, reminded the jury of the presence of several employees of the defendant at the scene of the alleged accident, and that none of them had been produced to disprove the fact. We cannot say that this was exceeding the proper privilege of a judge in commenting on the unexplained absence of evidence which ought naturally to be in the case.
The next assignment is more serious. The charge that “ 1 need scarcely say to you that it is their (the defendants’) duty, and it is the duty of every one who occupies the highway to do so with such care that no injury can happen to any one,” imposes a liability far greater than the law sanctions. No degree of care has ever succeeded in altogether avoiding accidents, and the law does not make any one an insurer against them.
The effect of this statement of the law to the jury is unfortunately nowhere cured by an explicit announcement of the true rule; for, though the necessity of proof of negligence of the defendants is stated correctly, the legal standard of negligence is not clearly defined either in connection with the phrase complained of, or elsewhere, in such form as to guide and control the minds of the jury. From the whole tenor of this part of the charge the jury might very probably assume that it was negligence in law not to prevent an accident. This assignment is sustained.
The remaining assignments relate to the charge as to the *214measure of the damages, and here too the language used was unfortunate and misleading. -The jury were told, “Now in estimating damages, you are to consider, in a case of this kind only, the pain and suffering of the child in consequence of the injury. There is no rule of law to assist you in arriving at a conclusion. That is a matter entirely for yourselves. He is also entitled to compensation for, first of all, the deformity which, the doctor has said, resulted from this accident. That is a matter, gentlemen, left entirely to your own discretion and judgment. If there is a permanent injury and deformity arising from the accident, then the principal question for you to determine is how far it has injured his earning capacity.” This language cannot be said to convey to the unlearned mind the proper rule for the estimation of damages. The law cannot fix amounts, but it has a rule by which they are to be fixed; and, in cases of this kind, where the inherent difficulties of measuring pain and suffering by a money standard are already so great, and the tendency of juries to suppose that they may be generous rather than just, is so strong, it is error not to lay down for the guidance of the jury in the most explicit terms, the limitation of their verdict to compensation and compensation alone.
While this idea was plainly enough in the judge’s mind, his language was unfortunately vague and inaccurate, and failed to give the jury that clear guide which in cases of this class is especially needed.
The judgment is reversed, and venire de novo awarded.