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by substituting the care and diligence of another company for its own.1 In New York, where the rule prevails that a person traveling upon a free pass is bound by stipulations therein against liability on the part of the railway company, it has been contended that if he purchase accommodations in a parlor or sleeping car, he thereby becomes a passenger for hire, and may hold the railway company liable for injuries resulting from its negligence. But while this view of the case was sustained in the court of common pleas, it was reversed by the appellate court, and the rule in all its severity enforced against the passenger. But neither company is to be held liable for a wrongful ejectment of a passenger from the cars of the other by the other's servants or officers.' Railway and sleeping-car companies may lawfully contract that accommodations shall be afforded by the latter only to passengers having through tickets; and if, in accordance with such a contract, the officers of a sleeping-car refuse the application of a passenger not having a through ticket, and expel him from a car, their company is not to be held liable, no undue force having been used.8

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1 Pullman Palace Car Co. v. Pollock (1887), 69 Tex. 120; 5 Am. St. Rep. 31.

2 Pennsylvania R. R. Co. v. Roy, 102 U. S. 451; Columbus etc. R. R. Co. v. Walrath, 33 Ohio St. 461.

3 Williams v. Pullman Palace Car Co. 40 La. An. 87.

4 Columbus etc. R. R. Co. v. Walrath, 33 Ohio St. 451. But see Thorpe v. Railroad Co. 76 N. Y. 402, 32 Am. Dec. 325, and Kinsley v. Railroad Co. 125 Mass. 54, 28 Am. Rep. 200, where the ratio decidendi was want of knowledge on the plaintiff's part that the parlor or sleeping cars were controlled by a company other than the railway company.

5 Ulrick v. New York Central R. R. Co. 81 Alb. Law J. 302, where the court said, "We know nothing of the arrangement between the defendant and the Wagner Car Company, but as no one without leave of the defendant can run cars upon its track, we must assume that the drawing-room cars are run for the benefit of the defendant." Cf. Thorpe v. N. Y. Central R. R. Co. 76 N. Y. 409; 32 Am. Rep. 325.

6 Ulrich v. New York Central etc. R. R. Co. (1888), 108 N. Y. 80; 2 Am. St. Rep. 369.

7 Paddock v. Atchison etc. R. R. Co. 37 Fed. Rep. 841.

8 Lawrence v. Pullman Palace Car Co. 114 Mass. 1.

§ 1008. Effect of consolidation, lease and running privileges.-A railway company cannot evade its public duties and liabilities by surrendering its. road and franchises without legislative authority.' And where a railroad is owned by one company and leased to another without authority, both are› liable for wrongful injury by lessee. But an au thorized lease absolves the lessor from the torts of its lessee,3 the latter having full control of the road.* A railway company is liable for the negligence of the employees and agents of another road which it has projected and constructed, and which it controls and manages for the purpose of a local line.5 But it is not liable for negligence on the part of those operating a road which it merely aids, as stockholder or bondholder, or as guarantor of bonds." When one company has running privileges over the road of another, and, under the arrangement between them, the conductor and trainhands of the former are subject to the rules and regulations of the latter, a passenger, purchasing his ticket from the company owning the road, cannot hold the former liable for injuries sustained by him on that part of the journey.' Where an ineffectual attempt at consolidation has been made, in consequence of which the road of one company iз being operated by another, and through the negligence of the latter a passenger is injured, the former company will be held liable. An assumption by a consolidated corporation of the debts and lia

bilities of the several companies forming the consolidation, makes it responsible for damages incurred through the negligence of those companies."

1 Naglee v. Alexandria & F. R'y Co. (1887), 83 Va. 707: 5 Am. St. Rep. 308; Chollette v Omaha etc. R. R. Co. (1889) 37 Am. & Eng. R. R. Cas. 13. Vide supra, § 569.

2 International & Great N. R. R. Co. v. Dunham (1887), 68 Tex. 231; 2 Am. St. Rep. 484; and cases cited, supra, § 570.

3 Nugent v. Boston, C. & M. R. R. Co. (1838), 83 Me. 62; 6 Am. St. Rep. 151, and cases cited supra, § 569.

4 St. Louis etc. R. R. Co. v. Balsley, 18 Mo. App. 79.

5 Atchison etc. R. R. Cɔ. v. Davis, 34 Kan. 203.

6 Atchison etc. R. R. Co. v. Davis, 34 Kan. 239.

7 Smith v. St. Louis etc. R'y Co. 85 Mo. 418; 55 Am. Rep. 330. Cf. Great Western R'y Co. v Blake, 7 Hurl. & N. 937; S. C. Thompson on Carriers, 403; McElroy v. Nashua and Lowell R. R. Co. 4 Cush. 400; S. C. Thompson on Carriers, 409.

8 Latham v. Boston, H. I. etc. R'y Co. 33 Hun, 265. 9 St. Louis & S. F. R'y Co. v. Marker, 41 Ark. 542.

§ 1000. Measure of damages. -In determining the amount of damages to be awarded in cases of injury to persons, not resulting in death, it is proper for the jury to consider the expenses incurred by the plaintiff for medical attendance and other items of expense, necessarily incident to the sickness produced by the injury,' and his impaired ability thenceforth to engage in remunerative labor and to follow his trade or profession.2 The permanency of the injuries is an important factor in increasing the amount of damages to be allowed.3 In a late case in point, where the plaintiff's hand was severely cut, and it was in evidence that he was sick from his injuries for several months, and was finally compelled to have his arm amputated just below the elbow, and that his expenses therefor were nearly two thousand dollars; that his salary as a telegraph manager was one hundred and forty

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four dollars per month, and, being an expert operator, he occasionally made fifty dollars per month, extra; and that his value and usefulness as an operator had been impaired to the extent of one-half, it was held that a verdict for twelve thousand dollars was not excessive, though the nature of the case only allowed compensatory damages. The nature of the plaintiff's business or vocation, accordingly, is important in estimating damages. But it is inadmissible, for the purpose of diminishing the amount, to show that the person injured was engaged in an illegal traffic, such as keeping a house of prostitution.5 Pecuniary losses are not the only elements of damage. The pain resulting from the injury, the suffering incident to being fastened for a long time in the wreck of the train, and the mental anguish endured, should be considered. But damages for mental suffering must be based upon physical, or upon malice, insult, or oppression." Exemplary damages may be imposed where the company's servants showed reckless disregard of consequences, or where the injury was accompanied by insult or was inflicted maliciously. action for negligence, the jury must take into consideration the circumstances as to aggravation and mitigation." But failure to instruct as to circumstances, aggravating or mitigating, is not an error when no such circumstances exist. The jury are not to base their estimate of the amount of damages upon injuries of which the defendant's negligence was not the proximate cause. But the mere fact that the plaintiff, finding relief from his sufferings in moving about, could not be kept in bed, although perfect quiet would have furthered

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In an

his recovery, is not sufficient to show negligence on his part in the care of his case, without evidence that he knew that his conduct was injurious, and that he acted contrary to his physician's advice.13

1 Dougherty v. Missouri R. R. Co. (1888), 91 Mo. 647.

2 Dougherty v. Missouri R. R. Co. (1888), 91 Mo. 647. Cf. Redhead v. Midland R'y Co. (1869), Law R. 4 Q. B 379; S. C. Thompson on Carriers 124; Ingalls v. Bills (1845), 9 Met. 1; S. C. Thompson on Carriers, 112.

3 Reichman v. Second Ave. R. R. Co. 48 Hun, 620; Curtis v. Rochester R. R. Co. 18 N. Y. 531; S. C. Thompson on Carriers, 148.

4 Dougherty v. Missouri R. R. Co. (1888) 91 Mo. 647.

5 Indianapolis etc. R'y Co. v. Bush, 101 Ind. 582.

6 Quinn v. Long Island R. R. Co. 34 Hun, 331.

7 Dorrah v. Illinois Central R. R. Co. (1887) 65 Miss. 14; 7 Am. St. Rep 629; Johnson v. Wells Fargo etc. Co. 6 Mo, 224; 3 Am. Rep. 245; Wyman v. Leavitt; 71 Me. 227; 56 Am. Rep. 303; Bovee v. Danville,_53_Vt. 183; Canning v. Williamstown, 1 Cush. 451; Trigg v. St. Louis etc. R. R. Co. 74 Mo. 147; 41 Am. Rep. 305.

8 Louisville & N. R. R. Co. v. Ballard (1888), 85 Ky. 307; 7 Am. St. Rep. 600.

9 Dorrah v. Illinois Central R. R. Co. 65 Miss. 14; 7 Am. St. Rep. 629; Chicago etc. R. R. Co. v. Scurr, 59 Miss. 456; 42 Am. Rep. 733; Vicksburg etc. R. R. Co. v. Scanlon, 63 Miss. 413.

10 Smith v. Wabash, St. L. & P. R'y Co. (1887) 92 Mo. 359; 1 Am. St. Rep. 729.

11 Smith v. Wabash, St. L. & P. R'y Co. (1887) 91 Mo. 359; 1 Am. St. St. Rep. 729.

12 Galveston etc. R'y Co. v. Cooper, 70 Tex. 67; Gulf etc. R'y Co. v, Mannewitz, 70 Tex. 73.

13 Gulf etc. R'y Co. v. Mannewitz, 70 Tex. 73.

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§ 1010. Injuries resulting in death.- -A civil suit to recover damages for injuries resulting in death could not be maintained at common law, for actio personalis moritur cum persona.1 But in England and in many of the American States, this defect in the common law has been remedied by statute. The English statute, commonly known as Lord Campbell's Act, does not transfer the right of action of the person injured to his representatives, but was enacted to provide compensation to the family of the person killed,3 making the injury resulting to those having an actual pe

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