208. 207. The Measure of Damages-Actions for Personal Injuries. 209. 210. Actions Relating to Baggage. IN GENERAL 202. When suit is necessary to enforce substantive rights against carriers of passengers, these rights exist only in connection with, and are therefore qualified by, the rules of law governing actions against carriers of passengers. Actions against carriers of passengers will be considered with reference to (1) The parties. (2) The form of action. (3) The pleadings. (4) The evidence. (5) The measure of damages. The subject of actions against carriers remains to be considered, along the lines indicated, and according to the same analysis used, in the discussion of actions against carriers of goods. Many of the principles there discussed are equally applicable here, such, for example, as the form of action; while essential differences between the two carriers sometimes call for different rules, such, for example, as the measure of damages. Only a brief discussion is here given, as an extended treatment of the questions involved is proper only in works on Pleading, Evidence, and Damages. i Ante, chapter XV. THE PARTIES 203. Ordinarily the injured passenger is the proper plaintiff. In some cases, persons may sue by virtue by their relationship to the injured passenger, as when a husband sues for injury to the wife, or a parent for injury to the minor child. In the usual case, the injured passenger is the proper person to sue, and this question presents none of the difficulty found in suits against the carrier of goods, involving the relative rights of consignor and consignee to sue the carrier. Husband and Wife-Parent and Child When the injured passenger is a married woman, in addition to her own right to sue for her injuries, the husband has a right to bring a separate suit to recover against the carrier for the loss of the wife's companionship and society. By virtue of the marriage, he is entitled to the wife's consortium, and when this right is impaired by the carrier's negligence, a cause of action accrues to the husband, quite apart from the wife's own cause of action, though both are based on the same negligent act. To the husband's suit, either his own negligence or that of the wife contributing to the injury is a defense. As we have already seen, by the weight of authority, the husband's contributory negligence does not 2 Filer v. New York Cent. R. Co., 49 N. Y. 47, 10 Am. Rep. 327; Blair v. Chicago & A. R. Co., 89 Mo. 334, 1 S. W. 367; Southern Kansas Ry. Co. v. Pavey, 57 Kan. 521, 46 Pac. 969; Skoglund v. Minneapolis St. Ry. Co., 45 Minn. 330, 47 N. W. 1071, 11 L. R. A. 222, 22 Am. St. Rep. 733; Kelley v. New York, N. H. & H. R. Co., 168 Mass. 308, 46 N. E. 1063, 38 L. R. A. 631, 60 Am. St. Rep. 397; Baltimore & O. R. Co. v. Glenn, 66 Ohio St. 395, 64 N. E. 438; Washington & G. R. Co. v. Hickey, 12 App. D. C. 269; Birmingham Southern R. Co. v. Lintner, 141 Ala. 420, 38 South. 363, 109 Am. St. Rep. 40, 3 Ann. Cas. 461. • See cases cited in preceding note. 4 As to wife's contributory negligence, see Chicago, B. & Q. R. Co. v. Honey, 63 Fed. 39, 12 C. C. A. 190, 26 L. R. A. 42; Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 570; Accousi v. G. A. Stowers Furniture Co. (Tex. Civ. App.) 87 S. W. 861. In the analogous case of the parent's suit for injury to his child, the parent's contributory negligence is a defense. See cases cited in note 8. Here, when the husband sues, he should not be permitted to profit by his own wrong. See Pennsylvania Ry. Co. v. Goodenough, 55 N. J. Law, 577, 28 Atl. 3, 22 L. R. A. 460. By the same token, the parent, whose negligence contributes to the injury, cannot recover for loss of the services of the child. See cases cited in note 9. defeat the wife's recovery, though her own contributory negligence is, of course, a defense to her own suit." The parent, entitled to the services of a minor child, likewise has, besides the child's right to sue the carrier, a cause of action when the parent loses partially or completely these services, owing to the carrier's negligence. As above, contributory negligence of either parent or child will defeat the parent's action; but, by the better rule, when the child sues, there is no imputation of the parent's negligence to him,10 and only the child's own contributory negligence will bar his recovery.11 Death by Wrongful Act Under the common law, if the carrier's negligence resulted in the death of the passenger, there was no right of action.12 Whatever right of action the passenger had died with him under the maxim, "Actio personalis moritur cum persona." The manifest injustice in allowing a heavy recovery when a passenger was severely injured, but lived, and denying a recovery when the injury was much more severe and resulted in death, presented a situation calling for statutory relief. This defect of the common law was remedied in England by Lord Campbell's Act, which enacted that, "wherever the death of a 5 Ante, p. 607. 18 Just as the contributory negligence of the plaintiff is in general a defense, when the plaintiff sues in his (or her) own right for injuries to the plaintiff. See ante, § 185. 7 Wilton v. Middlesex R. Co., 125 Mass. 130; Drew v. Sixth Ave. R. Co., 26 N. Y. 49; Pennsylvania R. Co. v. Kelley, 31 Pa. 372; Citizens' St. R. Co. v. Willoeby, 15 Ind. App. 312, 43 N. E. 1058; Scamell v. St. Louis Transit Co., 103 Mo. App. 504, 77 S. W. 1021. 8 Williams v. South & N.' A. R. Co., 91 Ala. 635, 9 South. 77; Mattson v. Minnesota & N. W. R. Co., 98 Minn. 296, 108 N. W. 517; Pollack v. Pennsylvania R. Co., 210 Pa. 634, 60 Atl. 312, 105 Am. St. Rep. 846; Galveston, H. & H. R. Co. v. Scott, 34 Tex. Civ. App. 501, 79 S. W. 642; St. Louis, I. M. & S. R. Co. v. Colum, 72 Ark. 1, 77 S. W. 596; Winters v. Kansas City Cable Ry. Co., 99 Mo. 509, 12 S. W. 652, 6 L. R. A. 536, 17 Am. St. Rep. 591. Chicago & G. E. Ry. Co. v. Harney, 28 Ind. 28, 92 Am. Dec. 282; Burke v. Broadway & Seventh Ave. R. Co., 34 How. Prac. (N. Y.) 239; Raden v. Georgia R. R., 78 Ga. 47. 10 See ante, p. 607. 11 See ante, § 185. See, also, Brown v. European & N. A. Ry. Co., 58 Me. 384; Masser v. Chicago, R. I. & P. Ry. Co., 68 Iowa, 602, 27 N. W. 776; Illinois Cent. Ry. Co. v. Johnson, 221 Ill. 42, 77 N. E. 592. 12 Grosso v. Delaware, L. & W. R. Co., 50 N. J. Law, 317, 13 Atl. 233; Louisville & N. R. Co. v. Jones, 45 Fla. 407, 34 South. 246; Connecticut Mut. Life Ins. Co. v. New York & N. H. R. Co., 25 Conn. 265, 65 Am. Dec. 571; Seney v. Chicago, M. & St. P. R. Co., 125 Iowa, 290, 101 N. W. 76; Jackson v. Pittsburgh, C., C. & St. L. Ry. Co., 140 Ind. 241, 39 N. E. 663, 49 Am. St. Rep. 192; Bligh v. Biddeford & S. R. Co., 94 Me. 499, 48 Atl. 112. 18 9 & 10 Vict. c. 93. person shall be caused by wrongful act, neglect, 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 who 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 caused under such circumstances as amount in law to a felony"; that "every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; that in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whose benefit such action shall be brought; and that the amount so recovered, and deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict shall find and direct." Statutes similar to Lord Campbell's Act have been enacted in all the states of this country. In their purpose and general tenor, these statutes are similar; but they vary infinitely as to their details. By virtue of the fact that such statutes are in derogation of the common law, and since, when a statute creating a right also prescribes the remedy, that remedy is exclusive, the courts have shown a tendency to construe these statutes strictly. Particularly is this true as to the person bringing the suit.is The peculiar words of each statute, and the decisions of the courts of that particular state construing such statute should always be carefully consulted. To discuss these statutes in detail is beyond the scope. of this book. Proper Party Defendant 14 There is seldom any difficulty as to the proper party defendant. This is, of course, the carrier whose negligence causes the injury.16 14 Chicago & E. R. Co. v. La Porte, 33 Ind. App. 691, 71 N. E. 166; Vaughn v. Bunker Hill & Sullivan Mining & Concentrating Co. (C. C.) 126 Fed. 895; In re California Nav. & Imp. Co. (D. C.) 110 Fed. 678. 15 Howell v. Board of Com'rs of Yancey County, 121 N. C. 362, 28 S. E 362; Alabama & V. Ry. Co. v. Williams, 78 Miss. 209, 28 So. 853, 51 L. R. A. 836, 84 Am. St. Rep. 624; Louisville & N. R. Co. v. Coppage, 13 S. W. 1086, 12 Ky. Law Rep. 200. 16 See Bryce v. Southern R. Co. (C. C.) 125 Fed. 958; Penfield v. Cleveland, C., C. & St. L. Ry. Co., 26 App. Div. 413, 50 N. Y. Supp. 79; Kansas City, M. & B. Ry. Co. v. Foster, 134 Ala. 244, 32 South. 773, 92 Am. St. Rep. 25; Atchison, T. & S. F. R. Co. v. Cochran, 43 Kan. 225, 23 Pac. 151, 7 L. R. A. 414, 19 Am. St. Rep. 129. As to liability of the initial carrier for injuries due to the negligence of the connecting carrier, see ante, § 170. When the injury is due to the negligence of more than one carrier, one, all, or any intermediate number of these may be sued at the option of the injured party.17 Suits by Persons Who are Not Passengers The principles just discussed apply equally to persons injured by the carrier's negligence, who are not passengers. Thus, the invitee on the carrier's premises, injured by the latter's failure to exercise ordinary care, is the proper plaintiff in a suit against the carrier in control of the premises.18 If such invitee is a married woman or minor child, what has just been said as to the husband or parent is applicable.19 When the carrier wrongfully refuses to accept as a passenger a person who lawfully applies, such person is, of course, the proper plaintiff to sue the carrier for the carrier's breach of duty in thus failing to accept and transport him.20 THE FORM OF ACTION 204. As in the case of the carrier of goods, the carrier of passengers negligently injuring a passenger may be sued either in an action of assumpsit, based on the contract to carry, or in action of trespass on the case, based on the breach of duty imposed by the relation of carrier and passenger. In general, the advantages and disadvantages of the passenger's suing ex contractu or ex delicto are the same as in actions against carriers of goods. A passenger injured by the carrier's negligence has the same. choice of remedies as exists in the case of carrier of goods, and the action brought may be either one of assumpsit, based on the express or implied contract of carriage, or one of trespass on the case, for the tort.21 The different forms of actions have the same 17 Matthews v. Delaware, L. & W. Ry. Co., 56 N. J. Law, 34, 27 Atl. 919, 22 L. R. A. 261; Flaherty v. Minneapolis & St. L. Ry. Co., 39 Minn. 328, 40 N. W. 160, 1 L. R. A. 680, 12 Am. St. Rep. 654; Lucas v. Pennsylvania Co., 120 Ind. 205, 21 N. E. 972, 16 Am. St. Rep. 323; Cuddy v. Horn, 46 Mich. 596, 10 N. W. 32, 41 Am. Rep. 178. 18 See ante, § 191. See, also, Indiana, B. & W. Ry. Co. v. Barnhart, 115 Ind. 400, 16 N. E. 121; Little Rock & Ft. S. Ry. Co. v. Lawton, 55 Ark. 428, 18 S. W. 543, 15 L. R. A. 434, 29 Am. St. Rep. 48. 19 See ante, pp. 664-665. 20 See ante, § 175. See, also, BENNETT v. DUTTON, 10 N. H. 481, Dobie Cas. Bailments and Carriers, 322; Brown v. Memphis & C. R. Co. (C. C.) 7 Fed. 51; Zackery v. Mobile & O. R. Co., 74 Miss. 520, 21 South. 246, 36 L. R. A. 546, 60 Am. St. Rep. 529. 21 Patterson v. Augusta & S. R. Co., 94 Ga. 140, 21 S. E. 283; Saltonstall v. Stockton, Fed. Cas. No. 12,271, affirmed 13 Pet. 181, 10 L. Ed. 115; Balti |