When the plaintiff rested his case, the defendant moved for a nonsuit, on the following grounds :
1st. No negligence proved against defendant.
2d. It did not appear that David Buger is deceased, or if so, that he left any heirs.
8d. That it did not appear that the wife of the intestate, who would be exclusively entitled to damages, is dead.
4th. That the evidence is insufficient to support a verdict. The motion was denied, and the ruling of the court is assigned for error.
The declaration charges that the plaintiff’s intestate was a passenger for hire on the defendant’s train of cars. That he had made a contract with the defendant to be safely carried from Kansas City to Denver, and that, by reason of defects in the location and construction of a certain bridge over Coon creek, the cars collided, and that Buger was killed ; that he left surviving, as heirs, two children of tender years, etc. The evidence shows that by reason of the giving away of the eastern embankment, on which the bridge rested and abutted, the accident occurred. That it is the *457imperative duty of a railway company to keep their track in a sound and safe condition, cannot be disputed. If it has no track, or a chasm is suffered to exist on it, it is either incapable of performing the duties it has contracted to discharge, or it puts the limbs and lives of its passengers in jeopardy. In this case, instead of carrying the plaintiff’s intestate safely over its road, as the defendant had contracted to do, he is killed by the breaking down of a bridge, which forms part of its roadway. The moment such a state of affairs was shown to exist, the presumption of negligence on the part of defendant necessarily arose, and it required evidence on its part to overcome that presumption, and establish affirmatively that no negligence existed on its part, to which the accident could be attriduted. This is the doctrine clearly and ably announced in Brehan v. The Great Western R. R. Co., 34 Barb. 256, which is a case similar in almost every respect to the one at bar. The presumption of negligence, however, does not attach itself to every injury which may overtake a passenger, while being transported in a car ; it belongs only to that class of accidents where the injury is caused by a defect in the road, cars or machinery, or by want of diligence or care in those employed, or by some other thing, which the company can and ought to control, as a part of its duty to carry the passenger safely, because in all these matters it is the duty of the company to use the highest degree of care to have all their arrangements safe and in good condition. Meiers v. Pennsylvania R. R. Co., 64 Penn. St. 225; Curtis v. Rochester & Syracuse R. R. Co., 18 N. Y. 534; Am. Law Review, January No., 1871. Whatever diversity of.opinion may exist on the subject of the burden of proof in cases of negligence, the courts seem all agreed in holding that where the accident occurs in one of the ways mentioned above, that is, on account of a defect in the road or machinery, or through the carelessness of the agents employed by the company, the accident is prima facie evidence of negligence, and the defendant must establish affirmatively that no negligence existed on its part. Louis*458ville & Portland R. R. Co. v. Smith, 2 Duvall (Ky.), 556; McLean v. Burbank, 11 Minn. 277; Illinois Central R. R. Co. v. Phillips, 49 Ill. 234; The Great Western Railway Co. v. Baird & Faucett, 1 Moore’s P. C. 101 (N. S.); Stokes v. Saltonstall, 13 Peters, 181.
The carrier may, however, rebut this presumption by showing that the injury arose from an accident, which the utmost skill, foresight and diligence could not prevent. It is claimed, however, by the counsel for the appellant, that when the accident occurs from causes entirely foreign to the operation or apparatus of the road, mere proof of the accident is not sufficient. There are cases where it is held, and properly, too, that when an injury is occasioned by an agency disconnected with the operations or apparatus of the road, no negligence will be presumed; for instance, if a passenger in the car is shot by a person without; but we know of no case that excludes the presumption of negligence when the accident occurs from a defect in the road itself, or from that cause concurring with others. When the accident and injury were shown, it then became a question for the jury to determine whether the breaking down of the embankment was owing to faults committed in its construction, or to causes unexplainable, and involving no responsibility on the part of the company, or from the hidden forces of nature and the interposition of a superior power, which no care, skill or precaution on its behalf could avert or control. The circumstances in evidence, when the motion for nonsuit was made, were sufficient to create a presumption of negligence if the law did not raise that presumption from the accident, injury and the destruction of the embankment. It seems to me, therefore, that the motion was properly overruled on the first ground.
As to the second, that it does not appear that David Buger is dead, our holding cannot be different. The stipulation filed by counsel in the court below, admits that David Buger was before .the alleged accident, and at the time thereof, a passenger for hire in one of the cars or coaches of the defendant, as stated in the declaration. Does the evi*459deuce show that he lost his life in the accident mentioned ? On this subject there is no direct proof, but the circumstances detailed point unerringly to that conclusion. First, we have the fact that in that train and in the baggage car were three boxes, two of them bearing the name of David Buger, also the name of Botenheim, the town from whence he started on his western trip. In these boxes was found clothing marked with the letters “D. B.” and A. B.,” being the initials of David Buger and his wife, Augusta. Further, we find in them clothing for children, and documents, which, on their face, purport to be transcripts of the parish register, containing the date of the birth of his children and their names. The evidence further shows, that in the car which was wrecked a German man, two women, and three children of the same nationality were seated ; that they consorted and fello wshiped together as one family. We further find that this man and the two women were killed, and that the little boy gave his name as Charley Buger. We have the further fact, that when Stockdorff called at the depot for the checks accompanying the trunks of the German people that got killed on the road by the name of Buger, they were furnished by the employees of the company, and the trunks delivered to him. We have the further fact, that after the death of these parties, no one came forward as claimant of these boxes, and what is still more significant, no father or mother asserted their parental claims to the bereaved and homeless children. When children of tender age are found traveling in a railroad car, in a strange land, with a man and woman who seem to care for their wants, and furnish them needed comfort and protection, it is a fair and natural presumption that the parties performing these offices are their parents. Strangers rarely are found making long journeys with children who have not passed the bounds of nurture. We think, then, that the circumstances above detailed, and others found in the evidence, were sufficient to warrant the jury in finding that Buger was numbered with the slain, and that the children with whom he had been consorting were his own. Evidence of affection, solicitude and care *460under the circumstances cannot be said to have been simulated. The purpose of such conduct is not apparent.
What has been said as to the death of Buger may be said as to the death of his wife. It seems to me, therefore, that upon the evidence before the court at the time plaintiff rested his case, he was entitled to a verdict, and that no error was committed in overruling the motion for a non-suit. On the trial various objections were taken to the admissibility of evidence to establish the marriage of Buger. A number of letters were admitted which Miller testified to having received from Buger at different times, also documents purporting on their face to be transcripts from the parish register of Botenheim. It is claimed by the appellant that this was secondary evidence, and therefore inadmissible. These letters were received by Miller in due course of mail from Botenheim in Germany, and from New York. Miller, the recipient of them, had been a native of Botenheim, knew Buger when he was a lad, and was acquainted with his parents. The first letter imparts to Miller the intelligence of Buger’s marriage with Miller’s youngest sister, Augusta, and their intention to embark for America. This letter bears date February 16,1872. The second letter, dated New York, May 14, 1872, makes mention of the marriage, and that he is there awaiting some assistance from his brother-in-law, Miller. The third letter is of a somewhat similar character. The documents above referred to recite the fact of Buger’s marriage to Augusta, and the birth of the children. If this evidence was rightfully received, the proof of the marriage is satisfactory.
Miller testifies that the envelopes in which these letters were inclosed bore the post-marks of Botenheim and New York, and these circumstances must be taken as prima facie evidence that the letters were deposited in the offices at those places. If a letter is sent by the post, it is presumed, from the known course in that department of the public service, that it reached its destination at the regular time, and was received by the person to whom it was *461addressed, if living, at the place and usually receiving such letters there. Greenl. Ev., vol 1, § 40.
There can be no question that the identity of the correspondent whose letters have been received, with the party whose handwriting is to be proved, should be established, either by the witness who received the letters, or by other reasonable evidence. A witness to prove the handwriting of S. F., said that he had never seen S. F., but had corresponded with one S.F. of Plymouth Dock; that he had so addressed his letters, and received answers from him, and had from that correspondence acquired such a knowledge of his handwriting as enabled him to say that the paper produced was in the same handwriting; evidence was given that the defendant lived at Plymouth Dock, and that no other person of the same name resided there, and it was held that proof was sufficient. Harrington v. Frey, 1 Ry. & Mood 90. In Thorpe v. Gisburne, 2 C. & P. 21, the witness said he had never seen the party, but believed the instrument to be in his handwriting, from having received letters from him, upon which he had acted. Best, C. J., ruled that this was quite sufficient for the witness to ground his belief upon, which he said was all-that was required. See Phillips’ Ev., vol. 2, top p. 503, note 481.
I fail to see why the doctrine thus announced is not applicable to this case. It seems to us, however, that the envelopes which inclosed these letters should have been produced, if the same were in existence.
It will be conceded that a declaration made by Buger, as to the fact of his marriage, would be held admissible. Caupalle v. Ferrin, 23 N. Y. 104; Charlotte School v. Greenwell, 4 Gill & Johns. 414. Is the declaration different when committed to writing ? Miller swears that he knew of one David Buger in Botenheim, and in absence of opposing proof, we are not called upon to presume that there were others there of that precise name. It must be conceded that the letters could not have been written for a purpose. It cannot be said that David Buger, or any one else, deliberately set to work to prepare evidence to be used in a case *462which could only arise from the fact of Buger’s death, growing out of an accident to a particular train on which he was to travel — such prescience as that would be unexampled in judicial history. Standing alone, the letters may be regarded as weak, but when supplemented by the concurrent circumstances, which stamps this case at every point, they were entitled to admission and consideration, upon the production of the envelopes, or the accounting for their loss. The declarations in these letters seem to be verified by facts disclosed throughout the entire evidence. It was also proper to receive evidence as to the inscriptions on the boxes. If the production of the thing on which the inscription'is found is indispensable, it would be impossible to proceed in many cases. If a sign were painted on a house, it would hardly be contended that the house would have to be produced, nor can it be said that the law converts the court-room into a receptacle for wagons, boxes, tombstones, and the like, on which one’s name may be written. So, too, I think the transcripts of the parish register, under the peculiar circumstances of this case, were admissible as a collateral fact, showing the marriage, especially when regard is had to the place where they were found. It was competent for the plaintiff to have obtained certified copies of these documents, duly authenticated, but it would have entailed considerable cost, and great delay. While courts, in the administration of the law of evidence, should be careful not to open the door to falsehood, they should be equally careful not to shut out truth. They should not incumber the law with rules which will involve labor and expense to the parties, and delay the progress of the remedy — itself a serious evil — without giving any additional safeguard to the interests of justice. Swayne, J., 3 Wall. 141. But there is another circumstance which gives these documents weight, sufficient to entitle them to the consideration of the jury on the subject of marriage. .The behavior of two persons of different sexes as husband and wife always affords an inference of greater or less strength that a marriage has been solemnized between *463them. Their conduct being susceptible of two opposite explanations, we are bound to assume it to be moral rather than immoral, and credit is to be given to their own assertions and acts, whether express or implied, of a fact peculiarly within their o-wn knowledge. We have this man and woman traveling together, surrounded with small children; their wearing apparel and bedding in the same trunks, and their initials on them. These facts certainly indicate a very intimate relation, and one that would warrant the presumption of marriage on the principle above stated. Charts of pedigree made by members of the family, or found among family documents, or hung up in family mansions, have been held admissible, even although without proof of their having been made by the directions of the family on the ground of their being acknowledged by the family. Phillips’ Ev., vol. 1, top page 212.
These documents reciting the birth of the children and the marriage of the decedent being found among his effects may be taken as a declaration by him of the legitimacy of the children, and of his own marriage, and on this ground the court below adjudged them admissible. Before leaving this branch of the case it is proper to advert to the strictures made by counsel on the conduct of the judge, who, it appears, took upon himself the examination of Miller as to the time when the letters were received, and to the circumstances which led to the correspondence between Miller and Buger. It is sufficient to say that the admissibility or non-admissibility of these letters in evidence was a question exclusively for the court. It was the duty of the judge to advise himself fully as to all facts connected with them so that he might pass intelligently upon the question of admissibility, and I fail to see that the right with which the law clothes him has been abused or transcended.
It is further insisted by the appellant, that, conceding the death of Mrs. Buger, there is nothing in the evidence to show at what precise time she expired; that there is nothing in the evidence inconsistent with the theory that she survived her husband. If she survived him for a moment *464it is claimed that this action cannot be maintained. When two persons, husband and wife, are killed in the same accident, and there is no proof on the subject, the presumption of the law is that they died co-instantaneously. The right of action does not depend on the existence or non-existence of the wife. The existence of any legal representatives falling within the rules of the statute is sufficient. A more difficult question arises as to the true measure of damages ; whether they shall be compensating and confined to the pecuniary loss sustained by the survivors, or shall go farther, and afford a salatium for the wounded feelings. When death is occasioned by gross negligence or willful misconduct, can punitive damages be recovered? On these subjects the statute itself is silent.
In England and New York, the courts have held that the damages are compensatory, but the statutes under which the decisions have been made are different from our own. In England, great stress is laid on the title of the act, which reads as follows: “ An act for compensating the families of persons killed by an accident.” The New York statute provides that “in every action the jury may give such damages as they shall deem a fair and just compensation, with reference to pecuniary injuries resulting from such death.’ ’ The title to the statute on which this suit is brought is, “ An act concerning damages.” The body of the act prescribes no rule. From the careful examination I have given this subject, the conclusion seems clear that the legislature designed to confer on the personal representatives of a decedent, a right which was not enjoyed at common law. The latter part of the act fixes the order of distribution ; all else is left to the operation of rules already in existence, for the admeasurement of damages. When a rule is prescribed in a statute, all other methods of computation must be ignored. When none is prescribed, then the statute must be taken to embrace those ordinarily applied to like cases. So far as I have examined, the authorities seem to be uniform in holding that, in actions brought by one to recover for injuries sustained through the negligence or misconduct *465of another, mental anguish and suffering are legitimate subjects for compensation. The method of estimating them is difficult indeed, but they have been uniformly allowed. So, too, when the injury has been the result of wantonness, violence, or gross negligence, punitive damages have been awarded. I have been unable to find any solid reason which would preclude the application of these principles to a case brought by one who has survived his injuries. The fact that damages for mental anguish cannot be actually measured by a pecuniary standard, is entitled to consideration.
But the courts have never allowed this difficulty to prevail in actions of trespass or slander. In the latter case the insult offered, and the humiliation endured, are the ingredients that make up the basis of the assessment. Can this rule as to mental anguish, when the action is brought for the benefit of the survivors, be applied ? The subject is not free from difficulty. The personal representative is the trustee of an express trust created by the statute, and the children are the cestuis que trust. He is the mere instrument through which their rights are asserted, and his representative character cannot abridge or curtail the measure of damages which, under the law, they are entitled to recover. He is a mere nominal plaintiff, and the object of the law in allowing him to bring the action is to secure, in one suit, damages, which otherwise might require a multiplicity of actions. It seems to be settled that no damages can be recovered for the suffering which precedes the death. The grave bars out this right; upon what known principle can the mental sufferings of the survivors be estimated. If the family is large, and the grief proportional to its size, then the damages would be immense. If the family was small, but the grief were boundless, how could it be compassed. How could a jury estimate the relative mental anguish of a widow and twelve children. Furthermore, it would involve a minute scrutiny into the personal relations of all parties. Affection would have to be measured by a graduated scale. An account would have to be taken of the familiarity which existed between the deceased and the survi*466vors. If a confirmed drunkard, or a person of vile associations, the grief at his departure might not be so poignant.
If the widow had wearied of her lord, or the husband of his wife, death might be a joy instead of an anguish. How determine the duration of this mental suffering, or the degree of its intensity ? When a large number of survivors were found, an inquiry would have to be instituted into the feelings of each. This certainly might, in many instances, tend to scandal and disgrace. Neither the interests of the litigants nor the policy of the law could be subserved by such a course. IN' one of these difficulties are encountered in estimating the mental suffering in the case of one suing for direct injuries to himself; his relations to others are in no sense material; it is a personal, not a relative, suffering.
It seems to me, therefore, that the survivors are not entitled to compensation for such anguish as they may have endured by reason of the taking off of their parent. What, then, is the measure of damages, and how shall they be estimated % It is extremely difficult to prescribe any satisfactory rule by which to measure the worth of a man’s life. Human life has no market value. It will hardly do to limit the value of a man’s life by his probable accumulations, for many men make none, and many have arrived at an age when they no longer attempt to make any. In making the estimate of the value of life and the consequent damage by death, mucn must be left to the sound discretion of the jury. They must take the facts in proof, and connecting them with their own knowledge and experience, which they are supposed to possess in common with the generality of mankind, arrive at a rule that will be comparatively just between the parties. They must place this money value upon the life of a fellow-being very much as they would upon his health or reputation. N o fixed or definite measure has been prescribed by the legislature, and we are unable to advance one that would adapt itself wisely or justly to the various causes which now exist, or which are likely to arise. Deprivation of parental care and support, ability to accumulate, to maintain those left behind, the loss *467of physical and mental culture that the parent would afford, are circumstances that must enter into the estimate. Tilly v. H. R. R. Co., 29 N. Y. 284. Whatever is susceptible of pecuniary computation* enters into the rule, and what cannot be included must be left out. So, too, I apprehend, that when the injury is the result of wantonness, violence or gross negligence, it is competent for the jury to award punitive damages. State v. Central R. R. Co., 60 Me. 492; Penn. R. R. Co. v. Kelly, 31 Penn. St. 378; Penn. R. R. Co. v. Zebe, 33 id. 328. The law governing the questions of gross negligence and punitive damages was fairly stated to the jury, provided the evidence warranted the instruction. The embankment was built some forty feet out into the bed of the stream. What efforts, if any, were made to ascertain the volume of water that was likely to flow in the channel, nowhere appears. Engineering skill certainly required that the locators of the bridge should have examined the character of the channel and the declivity of the circumjacent territory which forms the water-shed, to ascertain the quantity of water likely to pass. Some of the witnesses state that the channel was well defined for two or three miles; that it drained the waters from the divide, covering considerable scope of country. That no floods had theretofore recently happened cannot absolve the defendants, if any indications of high water existed at the time of location, showing that floods had occurred. Keating testifies that the material composing the embankment was poor, and that he informed the engineer that it would be liable to be washed out. Mooney swears that the soil was light and was affected by high winds. We cannot say that such material, carried out forty feet into the bed of a natural water-course, evinced the requisite degree of skill. The court instructed the jury that if, upon consideration of all the evidence, they were of the opinion that the defendant’s employees, either at the time of the construction of the bridge or afterward, must have foreseen that such a flood as that which is said to have occurred would or might probably occur, and that the consequences *468thereof might probably be the destruction of passing trains, then it was gross negligence not to provide against the casualty so foreseen as probably to occur; and in such case they would be warranted in allowing exemplary damages. They were cautioned to bear in mind, however, that exemplary damages could not be allowed for errors in judgment or for negligence merely, but that it must appear from the evidence that the defendant’s engineers or employees were conscious such casualty and injury as complained of in this case might probably occur, and omitted to use the caution and effort which the law requires of them to prevent.
If any reliance is to be placed in the testimony of Burke, indications of high water were found in the immediate vicinity at the time the bridge was built, sufficient in character to call for the exercise of the highest prudence. There is another circumstance also entitled to weight. Coon creek afforded a drainage-way for the waters of the divide ; Barrow testifies that it headed at the foot of the divide; in the afternoon preceding the accident, a heavy storm was observed at the head of Coon creek; the roaring of the water could be heard at Hugo. It seems to us that prudence enjoined upon the employees of the company an examination of the bridge after the storm and before the passage of trains. Ho such examination was made. The destructive character of such storms as this is a matter of common note, and experience teaches, and has taught, that storms along the divides in this country are not of unfrequent occurrence. There was, then, some evidence of gross negligence to be considered by the jury. Juries should, however, be careful in awarding punitive damages. The sympathies of fathers and brothers who compose them are always excited by the distressing circumstances attending such cases as this. Wild verdicts are returned, too often the product of passion instead of the result of calm and impartial judgment. The right to award them, however, exists in certain cases. If the right is abused, the courts will administer a corrective. Objection was taken to the admissibility of evidence showing that after the acci*469dent the company constructed a new bridge and afforded a larger space for the passage of water. The construction of the new bridge in a manner different from the old one is an admission that the first one was inadequate, but cannot be taken as an admission that its construction was attended with negligence. Brehm v. Railroad, 34 Barb. 276; Westchester, etc., R. R. Co. v. McElwee, 67 Penn. St. 314.
The evidence as to subsequent floods was, in the opinion of the majority of the court, improperly received. The instruction, however, cured the error. Another objection is taken to the question propounded to the witness Doll, as to whether any name was inscribed on the head-board of the buried man. Had the company fixed the name of Buger upon it, it would have been an admission that he was among the slain, and doubtless this was the ground for the inquiry. The objection is untenable.
There are some other minor and subsidiary objections, which it is not necessary to mention specially. It is claimed that the court committed a serious error in admitting the testimony of Burke; that this evidence was cumulative, and not rebuttal. The zeal with which the objection has been urged has led to a careful consideration of it, and to the conclusion that it is untenable. After the close of the case for the defendant, says Mr. Phillips, “Thegeneral rule is, that the evidence in reply must bear, directly or indirectly, upon the subject-matter of the defense, and ought not to consist of new matter disconnected with the defense and not tending to controvert or disprove it. This is the general rule, made for the purpose of preventing confusion, embarrassment and waste of time, but it rests entirely in the discretion of the court whether it ought to be strictly enforced or remitted, as he may think best for the discovery of truth and the administration of justice.” Phillips’ Ev., vol. 2, 912.
The evidence admitted was pertinent. It is not objected to because, from its nature, it cannot be heard, but because it was heard at an improper time. In matters of this kind, much is left to the discretion of the judge, and will rarely, if ever, be reviewed. Williams v. Hays, 20 N. Y. 58.
*470For the error in the measure of damages prescribed by the court the judgment must be reversed and the cause remanded ; and it is so ordered.