liability is based on the nature of the case. Goods are entirely in the control of the carrier. The passenger cannot be completely controlled. 1

$254. Passenger and carrier have reciprocal duties. The former is bound to avoid any unnecessary risks, and the latter to take all possible precautions against accident in the provision of suitable coaches and the observance of the most approved methods of conducting his business. The highest degree of caution consistent with proper speed is required. Failure to use the latest appliance, such for example as the "airbrake," would be considered a mark of negligence. Comfort and safety must be considered. But while a carrier is thus obliged to do all that human foresight, care and vigilance can reasonably do, consistent with the mode of conveyance and practical operation of the road, yet he will not be held to a degree of care which would be so expensive as to render it impracticable to continue the business."

2

§ 255. In case of injury the railroad company is liable for the loss of time; the expense of doctors, nurses, etc. Issue is joined in case of litigation either upon the measure of the responsibility or the amount due on those accounts. In the event of permanent injury the claims allowed are somewhat in the nature of consequential damages. The jury is allowed to estimate the probable pecuniary loss to the person in

1 Frink v. Potter, 17 Ill. 406.

2 Ohio and Mississippi R. R. Co. v. Muhling, 30 Ill. 9; Frink v. Potter, 17 Ill. 406; Tuiler v. Talbot, 23 Ill. 357; Galena and Chicago Union R. R. Co. v. Yarwood, 15 Ill. 468; C. B. and Q. R. R. Co. v. Hazzard, 26 Ill. 373.

Pittsburgh, Cincinnati and St. Louis R. R Co. v. Thompson, 56 Ill. 138.

the course of a lifetime of average length. Awards are so unequal and capricious that no fixed basis of calculation can be said to exist. Sometimes the mind is injured. In a case which arose in this state a few years ago the railroad company contended that a mental injury was not measurable in pecuniary damage. The supreme court held that the court of original jurisdiction was right in instructing the jury to take that injury into account in estimating the liability and assessing the damage.1 1

2

§ 256. In the case of homicide, whether murder, manslaughter, or justifiable homicide, no action for damages is brought in the interest of those dependent upon the slain for support where the slayer is an individual, and very rarely where the responsibility attaches to a business firm or corporation, except the latter be a common carrier. The law, however, warrants no such conclusion. "Whenever," says the statute, "the death of a person shall be caused by wrongful act, or default, and the act, neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been

1 Toledo, Wabash and Western R. R. Co. v. Baddeley, 54 Ill. 20. 2 In the spring of 1873 four persons in the employ of a pork packing establishment in Chicago were killed by a boiler explosion. The suing of the firm for damages was urged, but no such suits were brought. For some unaccountable reason it seems to be supposed that the law of liability for death applies only to railroads. It will be observed that such is by no means the case.

caused under such circumstances as amount in law to felony." It is only necessary to add that subsequent decisions have recognized the validity of this statute and been governed by it.1

$257. When the casuality results in death the right of action belongs to the personal representative of the deceased. The amount recovered shall be for the benefit of the widow and next of kin. A statute dating back to 1853, and still operative, provides that this distribution shall be "in the proportion provided by law in relation to the distribution of personal property left by the persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person, not exceeding the sum of $5,000; provided, that every such action shall be commenced within two years after the death of such person." 2

§ 258. While the statute fixes a maximum of damages in case of death, $5,000, the exact measure thereof is to be determined by the pecuniary injury to those entitled to receive compensation. The law does not attempt to make amends for loss of happiness. As marriage is viewed only as a civil contract, so death is taken cognizance of only from a monetary standpoint. The decisions sustaining this statement are numerous. 3 If a pauper is killed or injured by a railroad company,

° C. B. & Q. R. R. Co. v. Parks, 18 Ill. 460; C. B. & Q. R. R. Co. v. Hazzard, 26 Ill. 388; Chicago and Alton R. R. Co. v. Roberts, 40 Ill. 503; same v. Shannon, 43 Ill. 338; Chicago and

either by an engine, car collision or explosion, the expense of properly caring for the same shall be borne by the company. If injured he shall be cared for by the company; if killed the company shall pay the coroner's fee and all the expense of decent burial. 1

§ 259. An early decision is sometimes adduced as showing that the dying declaration of the deceased is not to be taken in evidence against the railroad company; but it is now well established that the same rule in regard to dying testimony which applies to other cases does to cases arising under the statute just given. So, too, the testimony of the servants of the railroad is admissible, notwithstanding the peculiar relations they sustain to the company.2

3

§ 260. The liability of a railroad company is entirely financial. In one case the court held that a corporation could commit assault and battery. But this is essentially fictitious. The corporation has no body to imprison. From the very nature of the case its punishment must be in the shape of damages. But the agent or employe of the company is liable to criminal prosecution. If the accident result from gross care

Northwestern R. R. Co. v. Swett, 45 Ill. 197; Illinois Central R. R. Co. v. Weldon, 52 Ill. 290; Chicago, Rock Island and Pacific R. R. Co. v. Otto, 52 Ill. 416; Chicago and Northwestern R. R. Co. v. Peacock, 48 Ill. 253.

1 Illinois Central R. R. Co. v. Weldon, 52 Ill. 290; Gross' Statutes, vol. i, chap. 80.

2 The tendency of the courts is to allow all the testimony to go before the jury, on the supposition that the latter will make allowance for prejudice and take the evidence at its actual value. That tendency is clearly in the direction of justice, and dictated by common sense. See 1 Greenleaf on Evidence, sec. 156 to 162. * The statutory definition of assault and battery in Illinois is the unlawful beating of another."

lessness on the part of any person or persons in the employ of the railroad, that person or those persons can be prosecuted for what the law denominates "involuntary manslaughter," and the punishment for which is eight years in the penitentiary.1

§ 261. The passenger liabilities of a railroad company are by no means measured by liabilities incident to disasters, resulting in injury or death. The carrier has miscellaneous liabilities of more or less importance.

$262. The company is bound to carry all persons at a reasonable and impartial rate. The duty herein. is precisely the same as the duty of impartiality in the carriage of freight and the transportation of cars.2 Several cases have arisen in the inferior courts of the state touching the right of a passenger to be carried at a rate of compensation fixed by statute, but the supreme court has made no declaration on the subject. Every passenger decision up to this time turns upon the construction of common instead of statutory law.

$263. The rule in regard to uniformity of charges does not forbid an extra charge for passengers who do not purchase tickets in advance, provided the ticket office is accessable, at reasonable hours. It has been decided that it will be sufficient to justify a railroad company if reasonable opportunity be afforded a passenger to procure a ticket for the train he designs to go upon, and that reasonable opportunity is afforded by keeping a ticket-office open, under the supervision

1 Gross' Statutes, vol. i, chap. 30, div. 5, secs. 7 and 8.

2 For a discussion of this general subject see chap. 18.

3 C. B. & Q. R. R. Co. v. Parks, 18 Ill. 460; St. Louis, Alton

and Chicago R. R. Co. v. Dalby, 19 III. 359.