then the father was entitled to recover that amount, whatever they found it to be; that in passing upon that question they should take into consideration the probabilities of the life of the child and the probabilities of the lives of the parents; and the attention of the jury was called to the length of the lives of the grandparents, and of the father and mother of the child, and of the state of health of the grandparents and of the father and mother, and of the state of health of the child at the time of her death. The court said:

"All these things you are to take into consideration in passing upon this subject. If you find for the plaintiff, if he is entitled to recover anything, he shall recover the cost of the burial, of the child, the amount of which has been testified in the evidence and is uncontradicted-$71.

* * *

"The law says that you are to give fair and just compensation to these parents and this father, the plaintiff in the case, if you find for the plaintiff, in regard to his pecuniary loss, and nothing else at all.

"Counsel has made some figures in your presence. They are not controlling upon you, and they were permitted, simply as a part of his argument, and the deductions he makes, or seeks to make, from the proofs in the case. It is your province to say finally what has been proven in the case, and what the damages are, if there are any over and above the $71.

"So I say to you finally and briefly that if you find the defendant's negligence has been established, on any of these declared heads, in the manner I have suggested, your verdict will be for the plaintiff.

* *

"If you find for the plaintiff, he is entitled to receive at least $71, the cost of the burial of the little girl. If you find he has suffered a pecuniary loss because of her premature and early death, then he is entitled, in addition to the $71, to whatever you may fairly and justly find on that head, taking into consideration all the evidence in the case."

There was a motion for a new trial, based upon the grounds, among others, that the verdict was wholly inconsistent, unjust, and contrary to law, and that the damages awarded were wholly inadequate.

In his reasons for the denial of the motion for a new trial, the circuit judge, among other things, said:

"It is true that a verdict like this shocks the sense of mankind, but that is because we have a sympathy which the law absolutely prohibits the jury from indulging in, or the court either. In my opinion, the law should permit damages for grief and sorrow, and then there would be damages of a substantial and tangible kind. My understanding is, the lawmakers refuse to indulge that, because it has been said by some writers that that would put a premium on the death of the child and jeopardize its life in very many cases; and that is probably true, nevertheless, so long as the law is as it is, and makes it purely and solely a question of pecuniary loss or profits, I think the verdict is right. I think that is the view the jury took of it. I made that plain to them, or tried to that they could not indulge in either sympathy or prejudice, and that it was simply a matter of dollars and cents. There were men on that jury who know, I am sure, that to rear a girl from the cradle to her legal majority is an expensive proposition. Of course, it is not as expensive among the laboring classes, but there were members of that class on the jury, and they know. And the peculiar thing about it is that the latest decisions on that subject leave the whole question of damages or lack of it to the judgment of the jury, regardless of the proof. To my mind, that is a perversion of every principle of the law, but if it is the law, and is to obtain as the law, then this court has no right to enter the jury box and say that they are mistaken in their judgment, because it is their judgment and nothing else, and it is based upon nothing. There wasn't a word of proof in the case as to what it cost to maintain this child, or any other child, or what it could earn, or what any other child could earn. There was some proof-a little as to what the child did. And I say, if that is the law, then I have no right to meddle with this verdict at all, on this ground."

A judgment was entered in accordance with the verdict, and the plaintiff has brought the case here upon a writ of error, and there are 29 assignments of error. Many of these relate to the question of negligence, and,

for the reason already stated, will not be considered by us. The assignments of error relating to the question of damages were:

(2) That the court erred in sustaining the objection of counsel for defendant to the following question put to Josephine Sceba on direct examination: "What was her disposition as to being kindly, tractable, and obedient?"

(3) Also, in sustaining the objection of counsel for defendant to the following question asked Josephine Sceba: "Q. I will ask you now how the cost of the materials, that you purchased for the food and clothing, would compare with the benefits you derived from her little efforts to help you?"

(4) Also, in sustaining the objection to the following question: "Q. Now, Mrs. Sceba, with your knowledge of the disposition of Rosa, you can state whether or not her efforts in that behalf, and the benefits that were derived from her services, would increase or diminish?"

(5) Also, in sustaining a like objection to the following question: "Q. State whether or not you would have had opportunity to work out, to any greater extent, as this child grew older?"

(6) That the court erred in ruling upon its own motion in striking certain of the testimony of Josephine Sceba from the record, as above set forth.

(7) That the court erred in sustaining the objection of counsel for defendant to the following question asked Nina Lorenz: "Q. What was her disposition, Miss Lorenz, as to being an obedient child?"

The twenty-third assignment of error is to the effect that the court in its charge to the jury erred, in that the cost of the burial was emphasized, and practically and in effect made the sole basis of damages, if the jury should find for the plaintiff. The twenty-fifth, twenty-sixth, and twenty-seventh assignments of error are based upon the portion of the charge above set forth. The twenty-eighth assignment of error is to the effect that the court erred, in that it did not instruct the jury as to the proper and lawful manner of comput

ing the damages, or as to the elements of damages to the plaintiff, if the jury should find the defendant negligent as charged, which caused the death of Rosalia Sceba. The twenty-ninth assignment of error is to the effect that the court erred in denying the motion of plaintiff to set aside the verdict of the jury and the judgment entered thereon, and to grant a new trial for the reasons set forth in said motion. The second, third, fourth, fifth, and sixth assignments of error will be considered together. We note the fact that the ruling upon which error is assigned in the third and fifth assignments of error, do not appear to have been excepted to, but the ruling of the court in striking from the record certain testimony covered by the sixth assignment of error was duly excepted to.

A careful perusal of this record has satisfied us that there was prejudicial error in the rulings of the court relating to the testimony of Josephine Sceba. In the earlier cases of Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306); Rajnowski v. Railroad Co., 74 Mich. 20 (41 N. W. 849); Hurst v. Railway, 84 Mich. 539 (48 N. W. 44); Charlebois v. Railroad Co., 91 Mich. 59 (51 N. W. 812); and Snyder v. Railway Co., 131 Mich. 418 (91 N. W. 643)—it was the practice to offer testimony generally, consisting of the judgment or opinion of witnesses as to the probable earnings, on the one hand, and cost or expense of rearing a child until majority, upon the other; and it was held that testimony, throwing any light upon what the pecuniary injury resulting from death would be, was admissible. And in the Hurst Case this court said:

"Some pecuniary injury or loss must be shown by the evidence."

In the Charlebois Case it was said that the plaintiff must show that some person had suffered some pecuniary injury by the death, and that the statute did not imply that damages and pecuniary loss necessarily fol

lowed from the negligent killing. In the Rajnowski Case, it was held that:

"The testimony of witnesses who are shown by their knowledge or experience to be qualified to express an opinion upon the pecuniary value of such a life is admissible, not for the purpose of controlling, but of aiding, the jury in arriving at a just conclusion."

In the Cooper Case a judgment of $1,550 upon the death of a girl 11 years of age was sustained; and it was held that the jury could not give damages founded upon their fancy, or based upon visionary estimates of probabilities or chances. In the Snyder Case the action of the lower court in refusing to set aside, as inadequate, a verdict of $250 for negligently causing the death of a boy between 11 and 12 years old, was sustained.

In the case of Black v. Railroad Co., 146 Mich. 568 (109 N. W. 1052), this court did not hold that such evidence, as above referred to, was not admissible, but did hold that where evidence had been given as to the age, calling, and condition of health of the father, and of the age and condition of the mother, together with evidence that the child was healthy, intelligent, of a good disposition, and obedient to its parents, that was sufficient to authorize an award of substantial damages, and the court, in that case, refused to set aside a verdict of $1,500 damages. Justice MOORE, who wrote the opinion of the court, after quoting the reasons of the circuit judge in his denial of a motion for a new trial, and after calling attention to the cases of Parsons v. Railway Co., 94 Mo. 286 (6 S. W. 464), and City of Chicago v. Hesing, 83 II. 204 (25 Am. Rep. 378), and other authorities, concluded his opinion in these words:

"The jurors have all been boys. The average juror knows the conditions which surround a boy in a family like that of plaintiff. We think it cannot be said, as