Plaintiff, as administrator of Henry Griffin, who was an employé of the defendant, sues to recover damages sustained by the alleged wrongful act of the defendant, resulting in the death of the decedent. At common law, this action was not maintainable, and the right to recover, and the measure of the recovery, are purely statutory. In many States, the statute which authorizes the action, in express words defines and limits the damages to pecuniary compensation.—Huntington v. Broad Top R. R. Co., 84 Penn. 425; R. R. Co. v. Howard, 80 Ill. 88; Penn. R. R. Co. v. Ogier, 35 Penn. 70. In this State, the statute provides that, in certain cases, the master or employer “is liable to answer in damages” to the servant or employé. — Code, § 2591. The record presents the direct question,, as to what is the measure of damages under the statute, where death results.
The English act, 9 and 10 Viet., is very similar to the one under consideration. It provides, that the j ury may give such damages as they think proportioned to the injury resulting from such death, to the party for whose benefit such action may be brought. Construing the English act in the case of Blake v. Midland Railway Co., 18 Q. B. 93, it was held, that nothing could be recovered, except the pecuniary loss sustained by reason of' the death; that the measure of damages was not the loss or suffering of the deceased, . . . and that nothing was recoverable as a solatium.
In the case of Telper v. Northern R. R. Co., 30 N. J. L. 200, it was held, that the pecuniary loss sustained by reason of the death was the proper measure of damages, when the statute failed to prescribe otherwise. In North Oorolina, the statute, in other respects similar to ours, provides that the jury may give such damages as they shall deem fair and just, with reference to the “pecuniary injury” resulting from such death. Commenting on and construing this statute with the English act, the court declared that, although the English act was not as precise and definite as the North Carolina act', inasmuch as the latter specifies “pecuniary injury,” and the English omitted “pecuniary,” the two acts were substantially the same, and the recovery under either was limited to the “pecuniary injury.”—Kesler v. Smith, 66 N. C. 154.
• The theory of the statute is, that those for whom compensation is provided, have a pecuniary interest in the life of the person killed; and consequently the amount of the recovery is limited to the value of such interest.—3 Wood’s Railway Law, p. 1536, § 414; Arrington v. Collier, Phil R. 355, These principles furnish a correct exposition of our statute; and consequentlv we declare, under the provision of section *5532591 of the Code, neither exemplary or vindictive damages are recoverable. The purpose of this statute is entirely different from that intended by the act of Feb. 5, 1872, the object of which was to ‘‘prevent homicide.”—Sav. & M. R. R. v. Shearer, 58 Ala. 672.
It seems that, in California, Texas, Tennessee, Missouri, Kentucky, and others, there is express provision made by statute for the recovery of exemplary or punitive damages in such cases ; but any other exposition of our statute would require the exercise of legislative power — a power which belongs altogether to a different department of the government. Courts can no more amend than enact a statute.
The amount of compensation being limited to the pecuniary injury, nothing can be allowed on account of pain and suffering of the deceased, before his death, or for the grief and distress of his family, or loss of his society.—66 N. C., supra; 30 N. J. L., supra; 84 Penn., supra; Donaldson v. Miss. & Mo. R. R. Co., 18 Iowa, 290; Amer. & Eng. Encyc. of Law, vol. 5, p. 45, and note.
The jury have no arbitrary discretion to give as damages what they may see proper, without reference to a proper basis from which to estimate them. That the jury may have proper data from which a pecuniary compensation may be fixed, it is proper to admit evidence of the age, probable duration of life, habits of industry, means, business, earnings, health, skill of the deceased, reasonable future expectations ; and perhaps there are other facts which should exert a just influence in determining the pecuniary damage sustained. In proportion as all the relevant facts and circumstances of decedent’s condition are brough t before the j ury, they will be the better prepared to ascertain correct compensation. If none of the facts and circumstances, except the bare killing and age of decedent, are in evidence, the verdict for other than nominal damages would be purely conjectural.
Some of the charges given to the jury by the court, to which exceptions were reserved, are in conflict with these principles, and should not have been given. The evidence conflicted as to whether the deceased contributed to his own death, or whether he was without fault, and was at the time acting under the rules of the company in the discharge of his duty, or in obedience to the orders of his superior co-employé. Whether the one or the other was true, depended upon the facts, tobe ascertained by the jury, under proper instructions of the court.
There was testimony tending to show the presence of the conductor at the time of the injury. There was no error in ad*554mitting in evidence Rules 133, 149,150,155. Rule 309 was irrelevant to any questions or issue before the jury, and should have been excluded. There was no evidence that any of the brakes were out of order, and Rule 147 was irrelevant and properly excluded by the court. Railroads, like other corporations and persons, have the right to adopt reasonable rules and regulations for the government of their employés, and for their own protection; but they can not stipulate for immunity from liability for their own wrongful negligence. A rule which imposes upon an employé to look after and be responsible for his own safety, contravenes the law itself, which fixes the liability of railroads for negligence causing injury or death to their employés. Some of the provisions of Rule 130 might have been proper evidence, but, when offered as a whole, it was inadmissible.
If there was evidence to satisfy the jury that plaintiff’s intestate selected a dangerous way to pass from one car to another, knowing that the way selected was dangerous, when there was a safe way apparent to him, he was guilty of such contributory negligence as to constitute a full defense to the action.—M. & B. R. R. Co. v. Holborn, 84 Ala. 137.
It was the duty of the defendant to furnish and maintain suitable material and appliances for the prosecution of its business, and, in the absence of notice to the contrary, the employé had the right to presume that the employer had complied with its duty in this respect, and to act upon this presumption, unless the character of his employment was such as to devolve upon him the duty of examining and seeing that the particular material and appliances were in proper condition. If such was the duty of tire employé, and he negligently assumed they were in proper condition, when they were not, and the injury arose from his own failure in this respect, he would be guilty of contributory negligence.
A brakeman assumes the ordinaryand known risks incident to the discharge of his duties, and where injury results from such dangers, the railroad corporation, or other employés, not being guilty of negligence or fault, is not responsible. If, .in the performance of his duty, the danger to be encountered is known by the employé, and is so obvious and imminent that a reasonable prudent man would not venture upon it, an employé would not be excused from contributory negligence, if injured under such circumstances, although the danger was the result of defective material and appliances.—Highland Ave. & Belt R. R. Co. Walters, ante, 435.
The court has defined and declared the boundary of legitimate argument to the jury, with as much precision and clear*555ness as the nature of the question will admit.—E. T. V. & G. R. R. Co. v. Bayliss, 75 Ala. 466; Wolffe v. Minnis, 74 Ala. 386; Cross v. State, 69 Ala. 476. When counsel trespass on the domain of unproven facts, the presiding judge should promptly set aside any verdict the jury may render, unless he is clearly and affirmatively convinced the verdict is right, and would have been the same in the absence of such unauthorized argument.—75 Ala., supra.
Some of the statements of counsel to the jury, to which exceptions were reserved, though unauthorized by the evidence,, were not of sufficient importance to work a reversal of the cause; but there were others, which clearly transgressed the limits of legitimate argument, and would have caused a reversal,, had there been no error by the court in the admission of testimony, and instructions to the jury. The court should restrain counsel, upon the request of the adverse party, within the limits of legitimate argument, and when transcended, should remove, by proper instructions, all injurious influence thereby produced on the minds of the jury.
Reversed and remanded.