(dissenting). I am unable to concur in the result announced by my associates in this case, or in their reasoning upon any of the points passed upon -by the majority opinion.
The principles accepted by this court as governing the disposal upon appeal of cases tried to a jury in which a verdict has been directed by the court are so strongly established and well recognized that they cannot now be the subject of dispute or difference of opinion. When a trial court, at the close of the entire testimony in an action tried before it, holds as a matter of law that one party or the other is entitled to a verdict, and directs the jury -sitting in the case to find accordingly, and an appeal is taken from the judgment entered upon the directed verdict, observance of these principles requires this court to disregard all conflicts in the evidence, and in its consideration of the case to construe the evidence most strongly against the party moving for the directed verdict. If it appears from the evidence so considered that the facts shown are such that different impartial minds might -fairly draw different -conclusions therefrom, it follows that the issues of fact should have been submitted to the jury — the body of men provided by the Constitution and laws for the determination of disputed or doubtful questions of fact. “The rule is the same where the evidence is undisputed, if different inferences therefrom -may be -fairly deduced by intelligent minds.’' It is only when it can be said that all reasonable and fair-minded men mu-st, with the same facts before them draw but one conclusion from the evidence, that a trial court is warranted in any manner, or to any extent whatever, in controlling or directing the verdict of the jury. If, therefore, in the consideration of an appeal from a judg*433ment entered on a directed verdict, it appears that “the evidence is such that intelligent men may fairly differ in their conclusions thereon upon any of the essential facts of the case, it is the duty of this court to reverse the judgment and! order a new trial.” Cameron v. Gt Nor. Ry. Co., 8 N. D. 124, 11 N. W. 1016; Vickery v. Burton, 6 N. D. 245, 69 N. W. 193; McRea v. Bank, 6 N. D. 353, 10 N. W. 813; Pirie v. Gillit, 2 N. D. 255, 50 N. W. 110; Zink v. Lahart, 16 N. D. 56, 110 N. W. 931; Hall v. N. P. Ry. Co., 16 N. D. 60, 111 N. W. 609; Carr v. Soo Ry. Co., 16 N. D. 217, 112 N W. 912.
The facts admitted by the defendants in this case disclose a gross- and entirely inexcusable act of negligence on their part. They were-druggists, engaged in the business of compounding the medicines prescribed by physicians, and furnishing the same to patients the-safety of whose health and lives are dependent upon the skill and’, care of those who undertake the performance of this highly important, delicate, and often dangerous duty. While so acting, they received a physician’s prescription which upon its face indicated that the medicine prescribed was to be compounded for the use of an-infant or “baby,” and, after taking time sufficient to enable them to-prepare the same with the greatest deliberation and care, delivered to the person sent to receive the medicine an entirly different compound, containing strong and poisonous ingredients that might be safely used only by a grown person. So little attention seems'tó have been given to the prescription for the infant’s.use that it was not known by the defendants that a mistake had been made, and that a medicine so dangerous to the life of the infant had been sent to it until two or three hours afterward^ when the medicine in considerable 'quantity had been administered to the child and the bottle containing it returned to them by its father. While it is true that a court, in the consideration of facts such as these, should not permit-emotional sentiments such as the sympathy or indignation to disturb-its judgment, or cause it to disregard well-established principles of procedure, it is nevertheless its duty to search the facts with the greatest care to determine whether the harmful effect that naturally proceeds from negligence so culpable as this has not in fact resulted, and, if the evidence shows such to be the case, to hold the negligent party to strict liability to the extent of the damage suffered.
The negligent act of the defendants is admitted, the death of the child following shortly thereafter is proved, and if there is evidence showing, or tending to show, that the death of the child resulted *434as a proximate cause of the negligent act, a case is made out entitling the plaintiff and appellant in this case to damages under the statute providing for an action against the party responsible for death by wrongful act. As conceded and shown by the authorities cited in the majority opinion, the American courts, practically without exception, sustain the doctrine that upon proof of the negligent act of the defendant resulting in the death of a person, and of the existence of a party entitled to recover under the provisions of the statute, a presumption at once arises that the party entitled to recover has sustained at least nominal damage. The opinion further concedes that in actions of this character, in determining the amount of damage sustained, juries are not confined to' a consideration of the evidence alone as in other classes of actions, but may exercise a much wider latitude in applying their own knowledge and experience to the facts of the case than would be proper in most other cases. These points admitted, it seems to me that it necessarily follows, unless it can be said that there is no competent evidence to show that ¡the death' of the child resulted from the act of the defendants, that the plaintiff in this action has sustained at least nominal damage. If the plaintiff was entitled to even nominal damage, the district court was clearly in error in directing a verdict for the defendants. I entirely .fail to understand how such error is obviated by the consideration that “it is obvious that with a female child three months old, dangerously ill, the pecuniary value of its life during its minority is wholly problematical and speculative.” It is doubtless true that, after death, the pecuniary value of the life of any person within his minority, or in fact during any period of vital expectancy, is problematical in the sense that it can be determined only upon considerations that may be, from the ordinary legal standpoint, regarded as conjectural and speculative. It is also true that to strictly apply a rule of evidence requiring such pecuniary value to be shown with the exactness of mathematical calculation will entirely frustrate the purpose of the statute providing for an action for death by wrongful act, and prevent a recovery in any ease whatever.
The statute under which this action is brought provides for an action in'favor of the proper parties whenever the death of a “person” shall be-caused by the wrongful acts of another. Section 7686, Rev. Codes 1905. This statute was enacted with an apparent legislative intent to provide a new right of action for the redress of *435wrongs that by common law were without remedy. Being thus remedial in character, the statute should be liberally construed by the courts in a spirit that will, so far as lies within its terms, effectuate the remedy designed by the Legislature. A construction that will bring the statute into practical operation for the purpose for which it was obviously designed should be preferred to one that will render it nugatory and inoperative in any important particular. Under such construction an infant or child of immature and tender years is as truly a “person” within the meaning of the statute as an adult. The pecuniary damage resulting from the death of such an infant may not be so large in amount as if it were a person of mature years, having complex family relations; yet, according to all human experience, such damage is substantial, and should be determined by the same rules applied in an action for the death of an older person. There is an evident legislative purpose apparent in every part of the statute that in every case of death by wrongful act, whatever the age or capacity of the decedent, a jury shall examine into the facts and circumstances, and .award “damages proportionate to the injury” to the party entitled to recover. In the light of these principles, and of those conceded by the majority opinion, it is difficult to comprehend how the fact that the child was but three months old and dangerously ill rendered the pecuniary value of its life during its minority more problematical and speculative than that of the almost innumerable cases in which recoveries have been sustained, under similar statutes, in the American courts.
Conceding that the pecuniary value of. the life of a child thee months old is at least nominal, and probably substantial, on what reasonable principle can it be held that the fact it was suffering from a dangerous disease renders a finding in support of plaintiff’s contention as to the cause of death “pure conjecture and guesswork?” It is admitted by the physician attending the child that, after the administration of the medicine containing morphine, the child exhibited symptoms of poisoning so unmistakeable that he considered it necessary, as an important part of his professional duty in the treatment of the case, to at once take vigorous measures to counteract these poisonous effects, and that his attention for a period of about four hours was devoted exclusively to that purpose. This treatment required the introduction of a rubber tube into the child’s stomach, through which was poured a solution of permanganate of potash, and the injection into its veins of atropine, both chemicals *436sufficiently powerful to decompose morphine and render it inert, together with manipulation of the body and lungs for the purpose of strengthening respiration and heart action. He claims by this course of treatment to have been entirely successful in counteracting the effect of the poison; but it is freely admitted by the medical testimony that such a course of treatment, while perhaps effectual in producing an evacuation of poison from the system, would have been extremely exhausting and debilitating even to a mature person. One physician testified that he had known two cases in which an attempt to wash out the stomach of an adult by means of a tube had produced convulsions in the patient. And it is apparent at a glance that the combined effect of the poison and the treatment necessary to the antidote must have seriously depleted the small reserve of strength of this young child, and reduced to a low ebb its vitality. With these facts before it a jury, without conjecture, speculation, or guesswork, might readily find that the administration of the morphine, together with the treatment necessary to counteract its effects, was largely instrumental in producing the death of the child. I believe that few persons can follow the entire evidence of this case and not feel strongly impressed with such conclusion.
Whether the poison operated directly in producing the child’s death, or acted as a predisposing cause by weakening its constitutional powers of resistence to disease, as testified by Dr. Engstad, the defendants are alike responsible. The fact that disease was also operating at the time of the administration of the poison, and that disease of itself might have been fatal, does not raise a presumption that it did in fact produce the child’s death. Death may be the result of several concurring causes, any one of which, operating alone, might not have fatal result. If the poisoning contributed to produce the child’s death by so impairing its strength and vital forces as to render the disease incurable, when without the poisoning it might have yielded to treatment, the defendants are liable to exactly the same extent as though it had been the only cause. A jury in an action of this character cannot apportion the damage allowed, according to the injury produced by each or two or more concurring causes. The point for the jury is, did the negligent aot of defendants operate as one cause, and did its effects contribute to produce the death of the child? If it did, the defendants will not be relieved of responsibility by showing that other causes operated at the same time to the same result. Louisville & C. R. R. Co., v. Jones, *43783 Ala. 376, 3 South. 902; Thompson v. Louisville & N. R. Co., 91 Ala. 496, 8 South 406, 11 L. R. A. 146; Jucker v. Chicago & Railway Co., 52 Wis. 150, 8 N. W. 862; People v. Cook, 39 Mich. 236, 33 Am. Rep. 380; Beauchamp v. Saginaw Min. Co., 50 Mich. 163, 15 N. W. 65, 45 Am. Rep. 30; Louisville, etc., Railway Co. v. Snider, 117 Ind. 435, 20 N. E. 284, 3 L. R. A. 434, 10 Am. St. Rep. 60.
The majority opinion holds that from the evidence introduced, “no jury could say what caused the child’s death.” This being true, it necessarily follows that neither the jury by its verdict, nor the court as a matter of law, could say that the child’s death was caused by uremia, “the dangerous disease” whose presence so complicated the situation. As death unquestionably resulted, it follows that the only conclusion possible from the evidence is that it was produced by a complexity of causes, prominent among which are the administration of the poisonous drug and the exhaustion attendant upon the treatment necessary to counteract its effect. How such conclusions could entitle the defendants .to a directed verdict I am wholly at a loss to understand. If the child had been in health at the time the morphine was administered, there could be no reasonable question but that its subsequent death was caused by poisoning. The fact, however, that it was at this time suffering with a dangerous disease, according to the holding of the majority opinion, at once removes the question of the cause of death into a region of speculation, surmise, and conjecture, and renders it impossible for a jury to render any verdict other than one in favor of the defendants. If such holding is to be regarded as a settled practice of this court, it becomes a serious question whether there can be said to be any liability on the part of a druggist who negligently compounds and delivers a poison to one already suffering from a dangerous disease.
Such holding is, however, as I regard it, more reasonable and consistent with principle than that which declares that plaintiff’s cause of action is defeated by contributory negligence on the part of the father. By the terms of the statute this action cannot be maintained by the father of the child in his own right, but only as personal representative of the child. The widow or children of a decedent may sue in their own names, respectively, but the father is without standing except as the personal representative. The cause of action falls within the jurisdiction of the county court as a portion of the *438assets of the estate of a deceased person. The father brings this action as the agent or instrument of the county court, and any recovery had will reach his hands as administrator, and must be strictly accounted for to that court. The county court will then proceed with its administration of the child’s estate, and determine to what person, or persons, the assets of the estate are to be distributed. It is true that the law of succession of this state provides that the father of an unmarried child who dies without issue is its heir, or, in case of his death, the mother. It is apparent that a very considerable interval of time must elapse, and many uncertain events transpire, between the time of any recovery in this action and the determination of the county court as to who are the child’s heirs at law, and the distribution to them, subject to the expenses of administration of the assets of the estate, and it seems to me that it is only by an amount of speculation, surmise, conjecture, and guesswork, very much greater than that necessary to determine the cause of the child’s death in this case, that a court can say that the father of the child will then be living, and that there will be remaining, of that particular asset of the child’s estate realized from a recovery of this action, a portion so considerable as to confer any pecuniary benefit on him. Whatever recovery is had comes to the father in his representative capacity only, in the right of the child, on the theory that it is such a cause of action ;as the child might have maintained if living. And I can conceive of no reasonable theory, except the absolete and now generally discredited one of imputed negligence, under which -contributory negligence of the father can be said to be a defense in an action of this character brought by him as personal representative of the -child. This view is supported by very respectable authority. Wymore v. Mahaska County, 78 Iowa, 396, 43 N. W. 264, 6 L. R. A. 545, 16 Am. St. Rep. 449; Norfolk & W. R. R. Co. v. Groseclose’s Adm’rs, 88 Va. 267, 13 S. E. 454, 29 Am. St. Rep. 718.
But the acceptance by this court of the doctrine that contributory negligence of a father is a defense to an action brought by him as a personal representative, for the death by wrongful act of a child, is, in my opinion, very far from warranting the further holding of the majority opinion that the father, Jacob Scherer, was, as a matter of law, guilty of contributory negligence in this case. There are facts bearing upon this question, which might have been given controlling importance by a jury, -which are entirely disregarded by *439the majority opinion; and, among these facts, I will ask attention to the following: Both the plaintiff, Scherer, and his wife were uneducated and unfamiliar with the English language and especially with English writing. Mrs. Scherer could not read writing at all, and Scherer only imperfectly. An older child of theirs had been sick for a period of almost two' months before this time. During its sickness Scherer had gone to defendants’ drug store to procure medicines prescribed by the attending physician, and some of these he had received in bottles in liquid form. This older child had died on the morning of the day on which the morphine was administered to the infant. Its body was in the house at the time, and Scherer had been busy throughout the day with the funeral arrangements. Both he and his wife were in an excited and nervous condition. Scherer was not present at the time the prescription for the baby was received from Doctor Taylor and sent to the drug store. He came in after the bottle of medicine had been brought, and conversed with his wife somewhat regarding it. Mrs. Scherer told him that the doctor had said that the medicine would be a powder. Scherer examined the bottle, and was able to make out the name of Doctor Taylor on the label and the direction to give the medicine every two hours. The name “Rose Clark,” also appearing on the label, he states, was a little blurred on the second word, andj owing to his inexperience with English writing, he could make out only the word “Rose,” which he supposed was part of the name of the medicine. Before giving the medicine to the child, the fact that it was a liquid instead of a powder was discussed somewhat between him and his wife, and they came to the conclusion that the doctor had changed his mind with reference to the ingredients after leaving their home, and that the liquid had been sent as the result of a subsequent direction given by him at the drug store. The fact that Doctor Taylor’s name appeared on the label was taken by them as a guaranty that it was the right medicine. After the first dose of medicine had been given, and the child showed no signs of improvement, but seemed to grow worse, Scherer went to the house of a neighbor for the purpose of calling Dr. Taylor by telephone.
In determining whether or not the negligence of Scherer contributed to the death of the child, not only should all testimony that conflicts with the evidence of Scherer and his witnesses be disregarded, and all inferences taken most strongly in his favor, but whatever *440seems hasty or ill-considered in his acts should receive a certain mitigation from the influences of surrounding circumstances, such as the excited mental condition of Scherer over the death of his other child, the many other serious matters with which his mind was occupied at the same time, the anxiety to do without delay whatever would relieve the sickness of the baby, and the implicit faith that unlettered people place in the prescription and advice of a physician attending their children. Under the circumstances of this case to measure the conduct of Scherer by rules even more inflexible than would be applied to that of a well-educated man, in the full possession of all his faculties of mind, experienced in the reading of writings and in the treatment of sickness, is obviously unjust. There is nothing in his conduct that does not seem to have been prompted by regard for the welfare of the child, and, under the trying conditions, an error of judgment should not be treated as a culpable lack of care. To hold that his acts constitute contributory negligence as a matter of law is, in my opinion, to disregard or misapply every precept adopted by this court to govern its action- in such cases.
(122 N. W. 1000.)In my view of this case there are disputed questions of fact, both upon the point of the cause of the death of the child and the contributory negligence of the father, which the trial court should have submitted to the jury for determination. Even though the rule requiring that the evidence be given a construction most favorable to the party ruled against were reversed, I believe the evidence on these points still presents facts from which different impartial minds might fairly draw different conclusions. To hold that all reasonable and fair-minded men, with the facts of this case before them, can draw therefrom but one conclusion almost reaches absurdity/in view of the fact that the judges of this court, after a long and careful consideration of the evidence, are divided in their opinion.