The plaintiff’s son, a lad of fourteen, a passenger'i'n th'e defendant’s train, on its regular trip from Carrollton to New Orleans, had both legs broken by the upsetting of a railroad car. The accident was caused by the switch being out of place. The switch tender was not at his post, or the accident would not have happened. H'e was' a servant- of the defendants, and they are liable for the consequences of his negligence.
This action is for damages resulting from this railroad accident, to the father of the wounded boy; and the legal question is presented for'ohr consideration, what damages can be allowed-to plaintiff,- as distinguished from his son, who is no party to the cause, neither fs any thing claimed therein for his use and benefit. The argument of the learned counsel of defendants would Confine the plaintiff’s cause of action to the pecuniary loss proved' to have been actually incurred previous to the institution of the suit; but we do not understand the measure of damages,-under the legislation of Louisiana, to be so restricted. The Article 1928 of the Civil Code, paragraph 3, enacts that, in the assessment of damages in cases of offences; quasi-offences and quasi-contracts, much discretion must be left to the Judge or jury. Under this rule, it was competent for the jury to find more than the actual pecuniary loss proved.
That loss seems to have been composed of two items — the charges for medical and surgical attendance, including medicines and nursing — and the neglect of plaintiff’s business for two months and a half, during his son’s illness. We are of opinion, that the jury could properly take into consideration also, the prospect in loss to plaintiff^ likely to ari’se from the crippled state of his son, which rii'ay render him a burden t'o his father, during a period when he would, were it not' for accident, be able to provide for his own support, if not to succour and assist his father. *38The actual damage proved, does not fall short of twenty-five hundred dollars; and the prospective probable damage may reasonably be estimated, under the evidence, at twenty-live hundred dollars more.
In the view that we have taken of the measure of damages applicable to the defendants, as regards the plaintiff in this action, the verdict of the jury, ten thousand dollars, appears excessive. The jury seems to have taken into view, the shock to the parental feelings, and the solicitude and anxiety of the parents of the sufferer, which must be supposed to have been the consequence of the grave injuries and protracted convalescence of their child; and which are declared upon by plaintiff as elements of damages. But we are not disposed to admit the soundness of a doctrine, which would extend vindictive damages to a case like the present. We carefully note the distinction between the immediate sufferer from á railroad accident, and a relative of the sufferer, however-near may be that relation. The subject is one of great, and of increasing, importance in our country, where railroad communication is so largely developed. Railroad companies are a species of common carriers, of comparatively recent date ; yet their engines have already superceded the more tardy and less powerful vehicles of the past generation, upon all the great thoroughfares of the land. It is therefore of groat public concern that the measure and extent of the liabilities of railroad companies should be determined with precision. They ought doubtless to be held to accountability for the misconduct of their servants. Like all corporations, they can only act through servants or agents. More than almost any other kind of corporation, their corporate business subjects them to the risk of accident. It is a duty which such a company owes to the public, to make velocity of locomotion compatible with safety, so far as this can be effected by prudence and skill. It is, moreover, an implied condition of their contract with each passenger, that the latter shall not be put in jeopardy of life or limb, by any fault, even the slightest, of the servants of the company. The sentiment of responsibility will be found the greatest safeguard against abuses ; but at the same time that we are disposed strictly to enforce that responsibility, we deem it advisable not to extend the right to recover vindictive damages, to others than those who, in their own proper persons, are victims of the misconduct of the servants of a railroad company. Were this suit prosecuted for the behoof of tlfe mutilated individual himself, it is possible we would not think the verdict of the jury too high. In that case, the bodily pain and suffering, the deformity of person, the diminished capacity of laborious exertion, might reasonably justify damages of the class called vindictive or exemplary; the standard of which is, of necessity, exaggerated beyond the limits of an exact arithmetical appreciation — being, as the title imports, in the nature of a penalty and of an example — partaking of the character of public justice, while redressing a private wrong. It may be well supposed that the mutilation of a healthy and promising boy, the pride of his parents, and the example of his schoolmates, such as the petition describes the plaintiff’s son, has excited feelings of keenest anguish in the breast of his relatives, and of the most painful sympathy in many who were not endeared to him by the ties of kindred. But we do not understand the object of the law to be, the punishment of an offending party for having been the cause of unpleasant emotions in the family and acquaintances of the party offended ; and this, in the form of a pecuniary compensation, to the relative or friend thus affected. Were such the law, the consequence of an offence to the offender, would be greater or *39less, in proportion to the larger or smaller circle of friends of him who has been offended. This would bo, obviously, to misplace the aim of public justice.
Upon these considerations, we think it proper to reduce the verdict in this case, in conformity to the estimate above expressed.
It is therefore adjudged and decreed, that the judgment of the District Court be reversed; that plaintiff and appellee recover of defendants and appellants, five thousand dollars damages, with interest from 12th of March, 1852, date of the judgment appealed from; the cost of the court below to be borne by appellants, and those of appeal by appellee.
Ogdeít, J.The importance of the principles involved in this case induces me, while concurring in the judgment pronounced by Mr. Justice Buchanan as that of the majority of the court, to express my own views of the law. There is no ground, I think, for questioning the plaintiff’s right of action.
The defendants are responsible in damages and the only question is as to the quantum of damages and the principles 'which ought to govern in making the assessment.
In actions of this nature, our Code has declared that much discretion must be loft to the Judge or jury. That discretion must doubtless be a sound discretion, but there are no fixed and precise limits within which it is to be exercised. The amount of damages must depend on the facts and circumstances of the case, the discretion must be exercised as well with regard to those circumstances as with regard to to general principles. Sedgwick on Damages, p. 26. Among those general principles, I recognize under our law the right of assessing what are called exemplary or vindictive damages. The Article 1928 of the Civil Code, paragraph 3d, speaks of a class of cases in which damages may be assessed without calculating on the pecuniary loss, or the privation of pecuniary gain to the party. Examples of this rule as applicable to contracts are given in which damages are allowed, although from their nature they are not appreciable in money, and under the same rule are classed cases of offences, quasi-offences and quasi-contracts, in which it .is stated much discretion must ■ be left to the Judge or Jury, “ while in other cases they have none, but are bound to give such damages under the above rules as will indemnify the creditors,” &e.
We have, therefore, the sanction of express legislation in this State for the rule which has so long existed at common law, and which has so long been acted on in England and in the United States, of allowing exemplary damages for personal wrongs and injuries. Chief Justice Kent in the case of Tillotson v. Cheetham, 3 J. R. p. 56, says, “Surely this is the true and salutary doctrine. The actual pecuniary damages in actions for defamation, as well as in other actions for tort, can rarely be computed and are never the sole rule of assessment The rule, he says, is too well settled in practice and is too valuable in principle to be called in question. The same doctrine has been recognized by the Supreme Court of the United States in cases of marine trespass. Judge Stoiy, in the case of the Amiable Nancy, 3 Wheaton, p. 546, says, “ If this were a suit against the original wrong-doer it might be proper to go yet further and visit upon them in the shape of exemplary damages, the proper punish- ‘ ment which belongs to such lawless misconduct.”
In our own jurisprudence, this has been considered a well settled principle. In actions of slander, such has always been held to be the rule. Caulin v. *40Stuart, 2 L. R., 76. Daly v. Vanlbenthuysen, 3d Ann., 69, and it can not be doubted that the same principles govern all actions for damages founded on a personal wrong or injury done to another. The damages in such cases not being susceptible of exact computation are nevertheless assessed according to the sound discretion of the Judge or Jury, and if there are circumstances of aggravation in cases of offences or of gross negligence in cases of quasi-offences, it is quite proper in assessing the damages to adopt the rule laid down in Sedgwick, of blending together the interests of society and of the aggrieved individual and allowing such damages as would save to prevent the repetition of such conduct.
This wholesome rule is one of the most important safe-guards of society and it would he dangerous to abandon it.
The verdicts of juries in actions of this nature inspire a salutary dread, for the reason that their discretion in awarding damages is not limited by any precise rules, and this is calculated to secure vigilance, care and circumspection among those who have the management of railroads, steam vessels and other public conveyances, which would not exist without it.
In the present case the damages are assessed by us only at what, under all the circumstances, it may be fairly presumed from the evidence, was the actual and should he the probable prospective loss sustained by the plaintiff.
SpQftord, J., declined' taking any part in this case^RÉ!?.