On the motion in arrest of judgment,.in this
case, the defendants object, that the declaration is bad, on the ground that, in each count, the injury to the person of the plaintiff is united with the injury to his property : which they claim can not properly be done, because the damages against towns for these several kinds of injury, are given by different sections of the act “ concerning highways and bridges;” damages for the former injury being given by the fifth, and for the other, by the sixth section. This objection should not prevail. The claim of the defendants is, that where, in consequence of a negligent defect in a highway or bridge, one’s person and property are injured at the same time, he must sue for them separately, and can not recover damages to both of them in one action, or, what in principle is the same, that he must insert a count in his declaration for each. Separate actions, in such. cases, would be contrary to the immemorial practice, and to require them- would produce a useless and burdensome multiplicity of suits, be opposed to the general principles of law, in regard to the dividing of claims growing out of the same transaction, and, in our opinion, would not be in accordance with a just construction of the statute. But, if the declaration were faulty in this respect, the objection is only one of duplicity, which is merely a defect of form, of which advantage must be taken by special demurrer. If different species of actions, or a different rule of damages, were prescribed for these two kinds of injury, the case might present another question; but that is not the case. Judgment, therefore, should not be arrested.
The defendants next claim, that there should be a new trial: 1, because the judge below excluded proof of the con*296tract between the plaintiff and defendants, in relation to the repairing of the bridge, and the breach thereof; and, 2, because he instructed the jury, that, in the assessment of damages, they had a right to consider all the circumstances of danger and peril attending the accident.
1. As to the first ground, it appears by the motion, that, while the judge excluded evidence of the contract and its breach, he permitted the defendant to prove, that the plaintiff, in repairing the bridge, used defective plank, and that, by reason of their being so used and put into the covering of the bridge, the plaintiff’s horse broke through it; and that he charged the jury, that if they found the plaintiff wrongfully or improperly put defective plank, or other defective materials, into the covering of the bridge, by reason of which, in any essential degree, the injury complained of was occasioned, and he was thus essentially the author of his own misfortune, he could not recover. We think that this was the correct course. The defendants could not, in this action, recover of the plaintiff, or set off any damages which they might have sustained, by reason of a breach of that contract by the plaintiff, nor could the fact that it was not fully performed by the plaintiff, constitute any defence to this suit; because the breach might have been in a particular which did not produce, or contribute to, the accident by which the injury was occasioned. Such breach, however, might have been one which did cause or contribute to that accident; as, for instance, the putting of defective plank in the covering of the bridge, in the manner claimed 'by the defendants. In that case, the placing of such defective plank there, being the act of the plaintiff himself, it could not be said to be owing to the negligence of the defendants, and therefore it would constitute a defence. It would, however, be a defence, not because this act of the plaintiff was a violation of a contract between him and the defendants, but because it would be the wrongful and improper conduct of the plain*297tiff himself, for the consequences of which he could not complain, whether there had existed any such contract between the parties or not, or whether the act was or was not a breach of it. It would be sufficient for the defendants to show, that the injury was occasioned in whole, or in any essential degree, by the act of the plaintiff himself. Whatever might be the terms of the contract, if they proved that fact, this defence would be made out; if they did not, it would fail. Hence, it is obvious, that proof of the existence, terms, or breach, of the contract, was entirely immaterial and irrelevant. The course taken by the judge below, in regard to the admission of the evidence, and the principle laid down by him, in the charge, was in precise accordance with these views.
The defendants insist that the court below, by submitting to the jury the question, whether the plaintiff wrongfully and improperly put defective plank or other defective materials into the covering of the bridge, required, or at least would be understood by the jury to require, them to find, whether there was a contract between the parties on the subject, and also, whether the plaintiff complied with its terms; and, therefore, that the defendants should have been permitted to prove the terms of the contract and its breach. We do not think that those adverbs were, or would be understood to be, used in reference to the existence or fulfillment of any contract between the parties, or that such is the fair import of the phrase used by the judge. There was no evidence of any contract before the jury ; that topic could not with propriety, and presumably was not, commented on before the jury; there was nothing to lead them to suppose, that it was intended to be adverted to in the charge; and it is not, therefore, to be supposed that it entered into their deliberations.
The defendants further claim, that the evidence which was excluded, tended to prove that the plaintiff, by bis representations to the defendants, that the contract was fulfilled, *298designedly misled the latter into a belief, that such was the case, and thereby induced them to forego any further repairs upon the bridge, and that, under those circumstances, the plaintiff would be estopped from denying the truth of such representations. We are by no means prepared to say that, on that state of facts, it would be competent for the plaintiff to set up, that the injury complained of, was occasioned by the negligence of the defendants. But we do not think, that the motion shows, that the evidence offered, laid the foundation for this claim, or that it was distinctly or intelligibly made on the trial; and therefore, according to a well established rule of this court, a new trial ought not to be granted, on this ground.
2. The remaining question is, whether the judge below was correct in instructing the jury that, in the assessment of damages, they might consider the peril and danger to which the plaintiff was exposed, by the accident which produced the injury complained of. We think that this part of the charge was right. It embraced the peril to the person only of the plaintiff,—not to his property. It is not necessary to inquire, whether or how far, in an action like the present, vindictive' or punitory damages are allowable. That the plaintiff is entitled to be compensated for his actual personal injury, there is, of course, no question : and that principle is sufficient to vindicate the charge, on this point. Such actual injury is not confined to the wounds and bruises upon his body, but extends to his mental suffering. His mind is no less a part of his person than his body: and the sufferings of the former are oftentimes more acute and also more lasting than those of the latter. Indeed, the sufferings of each, frequently, if not usually, are reciprocally ornthe other. The dismay, and the consequent shock to the feelings, which is produced by the danger attending a personal injury, not only aggravate it, but are frequently so appalling as to suspend the reason and disable a person from warding it off; and to say, that it does not enter into the *299character and extent of the actual injury, and form a part of it, would be “ an affront to common sense.”
For these reasons, the judgment should not be arrested, nor a new trial granted. ■»
In this opinion, the other judges concurred, except Church, C. J., who, having heard the cause in the court below, was disqualified.
New trial not to be granted.