concurring in the reversal of the judgment, filed the following opinion:
On the case presented here on the record I think the judgmant of the Circuit Court must be reversed. The ■suit was instituted against H. R. Duval, receiver of the Florida Railway & Navigation Company, in the State court by permission of the Federal court appointing said receiver, to recover damages for the alleged wrongful killing of William J. Hunt, an employe of "the receiver on the line of said railroad in September, 1888. The suit was instituted by the mother, three ■sisters and a niece of the deceased to recover damages •alleged to have been sustained by them by reason of the wrongful death of deceased by the company, and basing their right to damages on the ground that they *116were dependent on said decedent at the time of his-death for a support.
William J. Hunt, at the time of his death, was in the-employment of the receiver as section master, having charge of a hand car and hands on a section of the railroad at or near Callahan in this State and on the day of his death was ordered by the assistant road-master of the receiver to join a construction train engaged at the time in distributing new steel rails along the track for the purpose of being placed thereon. It was in the evening, and before dark, that Hunt was ordered to join the construction train, and this order he obeyed by joining the train at a station where it had stopped in order to clear the track for a passing' passenger train. The assistant road-master had charge of the construction train when it stopped at the station, but he left on the passenger train, leaving the-construction train in charge of a conductor. The testimony tends to show that while at the station, and. before leaving on the passenger train, the assistant road-master ordered Hunt to take o.ut the middle stanchions in a flat car in the construction train loaded with the rails for distribution, so that the train would not be delayed in getting them out when it reached the point where the rails were to be distributed; that in obedience to this order Hunt himself removed or assisted in removing all the stanchions in the car except two on each side near the ends of the car. When engaged in removing the stanchions he was told by an employe on the train, not the conductor or assistant road-master, that it was dangerous, and replied that he was doing it in obedience to orders. The assistant road-master testified that he ordered Hunt to loosen the stanchions, but did not think he directed the stanchions to be taken out; as to this he was not posi*117•tive. Other testimony tends to show that he ordered Hunt to take out the middle stanchions in the car. 'The number of pockets for stanchions was four or six on each side, and it appears that the rails loaded on the hat were about the same length of the car. After the passenger train had gone by, the construction train, in charge of the conductor, moved out slowly at the rate of six or eight miles an hour for the place where the rails were to be distributed, Hunt and three or four ■other employes taking their position on the rails on the car from which the stanchions had been removed. Before reaching the point where they were to commence throwing off rails, one worked out from the .stanchion on the front end of the car, and falling to the ground the other end was projected up and coming back onto the car hit Hunt and Milled him instantly. It was late in the evening when the construction train left the station, and before going a mile and a half the occurrence happened, at which time it was dark. The testimony show's that two other section masters and their crews were on this train for the purpose of distributing the rails, and it also tends to show that Hunt, while engaged generally in the work of a section master, was subject to be called upon to ■perform such services as he was engaged in at the time ■of his death. He had before that time aided the assistant road-master in distributing rails on six or eight miles of the road, but it does not appear whether such .service was rendered in connection with the same construction train.
The court instructed the jury for the plaintiffs as follows: “That if you believe from the evidence that William J. Hunt is dead; that his death was caused by the wrongful act, negligence, carelessness, or' default ■of the defendant, and that the plaintiffs were dépend*118ent upon said William J. Hunt for support, it is your duty to find a verdict for the plaintiffs, providing you-■find that the said William J. Hunt did not by his own negligence contribute to his own death.”. The court also instructed the jury for the plaintiffs as to the duty of the company to furnish reasonably safe cars properly equipped, and also that it was the duty of the-company to have had upon the fiat car loaded with iron rails a sufficient number of stanchions in place to hold the rails on the car. The court charged further for the plaintiffs that “the plaintiffs allege that the death of said William J. Hunt was caused by a bar of railroad iron falling off from a flat car while in motion in such manner that one end struck the ground,, and the other end struck said Hunt with such-force as to cause his death; that the bar of railroad iron fell off the car in consequence of there-being an insufficient number of stanchions on the car to hold the iron rails on it, and that the failure to provide and have in place a sufficient number off such stanchions was carelessness and negligence on the-part of the receiver, or his subordinate officers and agents, and if you believe these allegations of the-plaintiffs are sustained by the evidence, the plaintiffs-are entitled to recover damages, provided you find that the said William J. Hunt’s own fault, negligence or wrongful act did not contribute to his death.”
The defendant requested the following charges, viz: “If you believe from the evidence that the deceased,. William J. Hunt, was in possession of all of the information in connection with the condition of the car upon which he rode; that it was loaded with railroad iron; that there was an insufficient number of stanchions-on the car, and with that information went upon the car in his usual character as an employe for the dis*119tribution of the iron loaded thereon, then under the law the deceased, William J. Hunt, is deemed to have assumed the risks incident to the service, and to have waived any claim for damages in case injury ensued to to him, and the plaintiffs, if such be the facts, can pot recover.” The court gave this charge with the following addition: “unless you find that the said Hunt went on said car under orders of a superior officer.” The following charge requested by the defendant was refused, viz: “Even though you find that the defendant was negligent in not having four stanchions upon each side of the car, yet if the deceased, William J. Hunt, was negligent in respect to riding upon the car with an insufficient number of stanchions thereon, or might have avoided the consequences of an insufficient number of stanchions, then the plaintiffs can not recover.” The court refused to give other charges requested by the defendant on the subject of contributory negligence by the defendant, but a reference to them will not be necessary.
It will be observed that the court in the charges given for plaintiffs instructed the jury that they should find for plaintiffs on a given state of 'facts, provided the deceased, William J. Hunt, did not by his own negligence contribute to his death. The qualification of the right to find for plaintiffs on account of contributory negligence on the part of the deceased was in general terms without reference to any particular conduct on his part from which contributory negligence might be inferred. When requested by defendant to charge in effect that if the decedent with full knowledge of the dangerous condition of the car by reason of the absent stanchions went upon it while acting in his usual capacity as an employe in distributing iron, he thereby assumed the risks incident to such service, *120the court excluded the right to find for defendant on such a state of facts if the jury further found that Hunt went on the car under orders of a superior officer. There was undoubtedly testimony upon which the jury could have found that Hunt took the stanchions-•out of the car or assisted in taking them out and went upon the construction train in obedience to the •orders of the assistant road-master, and the question is presented whether the orders of such road-master can legally relieve or excuse Hunt from the consequence of his own fault or negligence in putting the car in a dangerous condition and riding thereon, if the jury should so find from the evidence. Under the rule before the adoption of the statute of 1887, Chapter 3744, an employer was not responsible to those in his employment for injuries caused by the negligence or misconduct of a fellow-servant, when the injured and injuring servants were engagedin the same common enterprise and both employed to perform duties tending to accomplish the same general purpose. South Florida R. R. Co. vs. Weese, 32 Fla., 212, 13 South. Rep., 436. It has never been decided here whether or not the doctrine of vice-principal, or alter ego, obtains in this State, and as the death of William J. Hunt, for whose alleged wrongful killing this suit was instituted, was subsequent to the passage of the act of 1887, Chapter 3744, we find in construing this .statute that it does not become necessary to decide what would be the rule independent of the statute. The act of 1887 was designed to give a remedy to a railroad employe under certain conditions where none •existed before. Since the adoption of the statute, if '.Such employe is injured by the fault or negligence of ánother employe, the injured employe may maintain áft áction for damages resulting from the injury against *121'the company, provided he was without fault or negligence in reference to the injury received. The remedy against the company for damages caused solely by the fault or negligence of a fellow-servant is an inovation ■upon the old rule, and is harsh, but in giving such remedy against the company for damages caused by the fault of another employe the statute requires that the injured employe must himself be without fault or negligence. Our statute is identical with the Georgia ¡statute on the same subject, from which ours no doubt was borrowed, except the last clause in the second ¡section, which is: “and no contract which restricts •such liability shall be legal or binding.” The Georgia courts in construing their statute before ours was enacted held that an employe can not recover damages from a railroad company for injuries sustained on account of the negligence of another employe unless free from fault even though in performing the act which results in the injury he was acting under the orders ■of a superior. That court says that the statute makes no distinction between the grades or classes of employes of the company, and the courts are not authorized to recognize any such distinction'. Western and Atlantic R. R. Co. vs. Adams, 55 Ga., 279; Baker vs. Western & Atlantic R. R. Co., 68 Ga., 699. We adopt the construction of the statute along with it, and this being the case the court was not authorized to instruct the jury that the deceased was relieved from the consequence of his own fault if such was the case, in consequence of the order of a superior officer. The superior officer, as shown by the evidence in this case, was the assistant road-master who was another employe of the company, and the jury could not have understood the charge as applying to any other officer. There is nothing in any of *122the charges given to obviate the effect of the-charge that the jury should not find for defendant, although they may have believed that Hunt was not' without fault in riding upon the car put in a dangerous condition by him, if they further found that what he-did was in obedience to the orders of a superior officer. This was a vital point in the case affecting the question of defendant’s liability, and the qualification of the-charge was calculated to, and for aught we can know may, have turned the scale in favor of plaintiffs on the-point of liability.
The first charge given for plaintiffs above set out was-correct as a general proposition. Whether the second one under the declaration in this case unwarrantedly assumed the existence of facts, I do not consider, but assuming its correctness for present purposes, the court' was in error in charging the jury in effect that defendant would be liable although Hunt may have been at fault if he acted under the circumstances in obedience to the order of the superior officer. Whether or not' Hunt was at fault was a question of fact for the jury,, under the circumstances, and it can not be doubted, that defendant had the right on the testimony to have-the jury pass upon this question under proper instructions from the court.
As to the right of plaintiffs to maintain the action, the court instructed the jury as follows, viz: “If you believe from the evidence that the plaintiffs were near-relatives of the. deceased, one the mother, three the* sisters and one a niece, of the deceased, and in that' relation had become, by the usual and ordinary course-of conduct among persons so related, dependent upon-the deceased for support, then the plaintiffs are entitled to recover, so far as the question of their being-dependent upon him is concerned, the damage they *123have sustained by reason of the death of Hunt.” “The amount of damages, if you find for the plaintiffs, rests in your judgment and discretion. There is in such a case as this no fixed rule or standard to-measure the damages that should be awarded the-plaintiffs, if you find in their favor. You should take-into consideration the age,'health, habits, industry, capacity for business, and probable time deceased would have lived, in the ordinary course of events, and award the plaintiffs, if you find in their favor, such an amount as will compensate, them for the damages-they have sustained by’ reason of the death of William J. Hunt.” For the defendant the court instructed the-jury that “you must further find that the plaintiffs were and are dependent on the said Hunt for their support. That dependence means actual dependence, and has no relation to a provision for such support to those as have the means of providing actual support-for themselves, either in money, or property, or as the result of their labor.” The following instruction requested by defendant was refused, viz: “The law will not assume that one of either sex in good mental and physical health, and who has attained their majority is such a dependent on the daily wages of a laboring man, or that he should be entitled to a support from - the laborer in his lifetime, or entitled to be considered such a dependent as would entitle him to suit and recovery under the statutes.”
The plaintiffs base their right to recover damages in the case here upon the ground that they were dependent upon the deceased, William J. Hunt, for a support, and such right, if they have any, is entirely dependent upon the statute, as they had no remedy in ..such a case at common law. Our statute, Chapter 3439,' acts of 1883, has given a remedy for damages-*124■whenever the death of any person in this State shall Tbe caused by the wrongful act, negligence, carelessness or default of any individual or corporation, and the act of negligence, carelessness or default is such as would, if death had not ensued, have entitled the party injured thereby to maintain an action for damages in respect thereof. The persons entitled to bring the suit ■are, first, the widow or husband, of the deceased, as the case may be; second,, where there is no surviving widow or husband of the deceased, minor children may maintain the action; third, where there is neither surviving widow or husband, nor minor child or children, then the action may be maintained by any person or persons dependent on the person killed for a support; and, fourth, where none of the foregoing classes exist, the action may be maintained by the executor or administrator, •as the case may be, of the deceased; and in eyery such action the jury shall give such damages as the party or parties entitled to sue may have sustained by reason -of the death of the party killed. We are concerned in the case now before us with the third class. When death has been caused by the wrongful act of an individual or corporation under such circumstances as to give a right of action under the statute in the absence •of a surviving widow, or husband, or minor child or 'Children, then the action may be maintained by any person or persons dependent upon the person killed for a support. Age may properly be considered in -connection with other facts in determining whether á plaintiff is a dependent within the meaning of the ■statute, but minority is not made ah essential condition of the right to sue ás a dependent. If dependency in fact upon the deceased fot support bé showh, .in my opinion, the suit may be maintained Whether it *125be instituted in behalf of a minor or by an adult. The-language of the statute is too clear to admit of any doubt that any person or persons dependent upon the-person killed for a support may maintain the action in the absence of the other preferred classes of persons entitled to sue. The fact that the statute has given to minor children the right to sue without reference to their dependency as a matter of fact, does not limit-the right of dependents upon the deceased for a support to sue to the period, of minority. The dependency referred to in the statute must depend upon the-circumstances of each case without reference to any fixed age. ^Dependence is defined to be the state of deriving existence, support or direction from another; the state of being subject to the power and operation of extraneous force; as dependence is the natural condition of childhood; the dependence of life upon solar-heat. A dependent is one who depends on or-looks to another for support or favor; a retainer. In law the word dependent has reference usually to the-quality of being conditioned on something else, as the convenant of the purchaser of land to pay for it, is usually so expressed in the contract of purchase as to-be dependent on performance of the vendor’s covenant, to convey. Our statute gives the right to sue to dependents upon the deceased for support, and this, in my judgment, means an incapacity in the dependent on account of age, mental or physical infirmity, or inability by reason of opportunity to support himself, and a reliance upon the deceased who had in his lifetime contributed such support-. Whether or not one was dependent for support- upon a person whose death is alleged to have been wrongfully caused, must be determined by the facts and circumstances of each case, and when it is shown that the person or persons *126■suing were, as a matter of fact, dependent upon the person killed for a support, he or they have the right under the statute to sue. The measure of recovery is defined by the statute to be such damages as the party ■or parties entitled to sue may have sustained by reason ■of the death of the jiarty killed. The damages referred to is compensation for pecuniary loss sustained, ■and are to be estimated by taking into account the •avocation of the deceased and his sources of revenue, his health, age, capacity, habits, past success and future prospects, and also the amount of aid or support in money or otherwise which he was accustomed -to furnish the dependent, and the expectancy of its ■continuance. Hutchins vs. St. Paul, Minneapolis & Manitoba Ry. Co., 44 Minn., 5. When a husband or widow sues, the rule seems to be established that the prospective damages, or the damages to be considered ;as resulting from the death are to be estimated during the joint expectancy of life of the deceased husband .-and wife, as the case may be, and the survivor. Baltimore & Reisterstown Turnpike Road vs. State, 71 Md., 573. In case of suit by a minor child or children, where the remedy is given to ■ them as such, it appears from the statute that the expectancy of life, so far as the minors are concerned, will stop at majority, but whether the expectancy of life of the deceased must •also be considered in connection with childhood minority, it is not necessary to say, as we are not now dealing with such class of persons. The statute provides in every such action that the jury shall give such damages as the party or parties entitled to sue may have sustained by reason of the death of the party killed. In reference to dependents the damages sustained by reason of the death must be such as result to them as dependents.
*127Turning to the testimony we find that William J. Hunt left no widow or children, and was killed on the 21st day of September, 1888. He had living with him at Callahan at the time of his death a widowed mother, three sisters and a niece. How old the mother was we do not know, but at the time of trial in November, 1889, the niece was sixteen years old, the youngest sister was twenty years old, the next sister was twenty-three, and the oldest twenty-four. William J. Hunt was thirty-five years old, in good health, physically strong, of good habits, and was earning wages from the railroad company at the rate of $42.50 per month. He commenced labor with the company as a day laborer, and had been promoted to the position of section master. The father of Hunt had been dead for about fifteen years when the son was killed, and the proof shows that the latter had taken care of and provided a support for the mother, sisters and niece since the death of the father. The niece had a living father, but had been raised from infancy by the grand-mother, and had been provided for by the deceased uncle as one of his mother’s family. The father of the niece is shown to have a family, but had no property, and permitted his mother to raise and care for his daughter. The sisters of William J. Hunt were in good health and able physically to work, but were entirely destitute of property, and relied upon their brother for a support. It is shown that the brother was industrious, economical and devoted his entire earnings to the •support of himself, mother, sisters and niece. This he had done since his father’s death. It also appears that he had lived at Callahan for one year and a half before his death, and that while the girls were able to sew .and work, there was no sewing or work for them to do .at Callahan. After the death of the brother they tried *128to make a living at Callahan by keeping a boarding house, but failed because they could not secure enough boarders. The entire family moved from Callahan to-the city of Jacksonville, and it appears that they had been in Jacksonville about two months when the trial took place. At the time of trial one of the adult sisters was earning eight dollars per month and the-other twelve dollars. On this state of the evidence the-court was justified, in my opinion, in submitting to the-jury the question whether or not the mother, sisters and niece were dependent upon William J. Hunt for a support at the time of his death, and the finding of the jury that they were so dependent' should be sustained. The first charge of the court on the subject of dependents, taken in connection with the one given for the defendant, was not error. The statement that if the plaintiffs had by virtue of near relationship become, by the usual and ordinary course of conduct among such relations, dependent upon the deceased, may not, standing alone, be correct, but in connection with it the jury were told that the dependence must-be actual, and has no relation to a provision, for support for those who have means of providing actual support for themselves, either in money, property or the result of their labor. Taking the two charges together the defendant has no right to complain. The charge requested by the defendant and refused by the-court, on the same subject, should, I think, have been given. The law does not assume, under the circumstances stated in the charge, a state of dependency, but it is a question of fact to be proven by the plaintiff' where the right to recover is based upon that ground and proper issue is formed on it by plea. On the facts-before the jury, and in connection with the other *129charges on the subject, the charge refused could properly have been given.
I think the charge given on the subject of damages was incorrect, and was calculated to mislead the jury. The first position contained in it, that the amount of the damages rested in the judgment and discretion of the jury, is not correct. While there is no fixed rule or standard for measuring the damages in such cases, still the verdict must be for compensatory damages as shown by the evidence. If we consider the first sentence of the charge as limited by the following portion of it, the rule is not correctly stated there. It is proper to take into consideration the age, health, habits, industry, capacity for business, and probable time deceased would have lived in the ordinary course of events, in awarding the damages which plaintiff may have sustained by reason of his death, but such considerations are not all that are to be regarded in estimating plaintiffs’ pecuniary loss resulting from the> death-. Plaintiffs sue as dependents, and the damages* which they sustained must result from that condition.. The court instructed the jury that they were to consider the age, habits, prospects of life, etc., of the deceased, and award plaintiffs such damages as they had sustained by his death, without any reference to* their condition of dependency, or the amount they had a right to expect from deceased h ad he lived. It is true that the court was not requested to give any instruction as to the status of plaintiffs’ dependency at the time of William J. Hunt’s death and its continuance in the future, still a charge should not submit a partial case to the jury and direct a finding on it.
*130So far it is necessary to go, I think, in disposing of "the case as presented on the record, and I am not disposed to go any further for the present.
The judgment should be reversed, I think, for the Treasons above indicated.