
    No. 1361.
    Robert T. Hamilton and Wife vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    1. In running a train backward through streets the engineer should see that the brakeman is at his post and keeps a lookout on the track to warn him in case of danger. It is the duty of the fireman to ring the bell1 continually while passing through a town or village.
    
      t. If an accident happens while thus running through streets, and one of these three men is not immediately at his post, although near it, gives good cause for examination and close investigation.
    8. d'he accident was not occasioned by recklessness and wrong intention arising in malice and to evil disregard of the rights of others. Punitive damages can not be recovered. The injury which will justify the allowing of punitive damages is a personal right which does not survive in the parent.
    
      i. Infants have legal rights, distinct from their parents, which can be judicially asserted in suits in their behalf. After death the right to compensatory damages survives in the parent, who can bring suit to recover.
    
      .5. Those damages for which compensation can he allowed are settled by jurisprudence. Unless such damages are proved they can not be allowed.
    •6. The suit having been instituted to recover punitive damages, damages can not be allowed for a larger amount than fixed in the decree of the court.
    •7. In the exercise of the court’s equity powers, nominal damages are allowed under the circumstances. The father had cause to seek judicial investigation into the. accident which resulted in the death of his child.
    APPEAL from the Nineteenth District Oonrt, Parish of St. Mary. Allen, J.
    
    
      Foster & Mentz for Plaintiffs and Appellees:
    Though a child of tender years be upon a railroad track, through the fault or negligence of his parents, and so be improperly there, yet if he be injured through the negligence of defendant, he is not precluded from his redress. Thompson on Negligence, p. 1129.
    If the defendant know that such child is on the highway, he is hound to a proportionate degree of watchfulness — to the utmost circumspection. Th. 1129, Boland . ys. Misssouri, etc., R. R. Co., 36 Mo. 484-490.
    What would be hut ordinary negligence in regard to one whom the defendant sup - poses to be a person of full age and capacity, would be gross neglect as to a ' child, or one known to be incapable of escaping danger. Th. 1129; Am. Big. An., Yol. 1, p. 919, No. 95.
    In such a case great caro is not expected of the child; -all that is required from a person injured is care and watchfulness according to his capacity. Th. 1139.
    .But a railroad company in such case is bound to the utmost circumspection. Th. 1189.
    If a child enter upon a dangerous locality, he can recover if the defendant he negligent. Th. 1146, 1187.
    The ease of Hartfield vs. Roper (Th. 1121) laid down the proposition that when a child not possessing sufficient discretion to avoid danger is permitted to be on a public highway, with no one to guard him, the defendant is not liable unless the injury was voluntary or the negligence was gross.
    But by later cases this doctrine is regarded as too harsh, and the language of the decision characterized as extravagant. Th. 1185, 1189. And see 28 An. 180.
    It is not negligence to send small children into the street. Th. 1185, 1186.
    A parent is not required to do anything unusual to prevent a child escaping from his supervision. Th. 1188.
    The degree of cafe which parents are bound to take to prevent the escape’of their children from their immediate supervision is sometimes made to depend upon the condition and resources of the parent. Th. 1188 n.
    The mere fact that a child 4 years old strayed a distance of move than two blocks from home, at play with other children, is not of itself evidence of contributory negligence on the part of the parent. 7 Cent. B. .1. 311-313.
    Where the mother had a nursing child, and had been in the house all the afternoon, and went into an adjoining room for a minute or two, and another child less than 5 years of age, without the knowledge or consent of his mother, went into the street, where he was injured by defendant’s horse, and there was no evidence of what the child was doing when injured; held, that there was no want of duo care on the part of mother or child. Marsland vs. Murray, 18 N. E. Reporter 680 (Mass.).
    A child playing on or about a railroad track, if it has exercised all the care of which it is capable under the circumstances, may recover from an injury received in consequence of the/ negligent operation of trains upon such track. Th. 1196.
    Under Act 71 of 1881, and Article 2315, O. C.,the right of action which the survivor has is coextensive with that which the injured person would have had if he had outlived the injury.
    By Article 1934, C. C., in cases of offences and quasi offences punitive damages may be given to the party injured.
    Therefore the right of action in the survivor is for punitive as well as actual dam ages.
    The true rule respecting the liability of corporations for punitive damages for the acts of their servants is that where such acts arc grossly negligent or are criminal, or where the corporation has ratified the act by retaining the employe, or in any manner justifies or approves his conduct, then the corporation becomes liable for punitive as well as actual damages if the servant would have been himself liable for such damages. Eng. and Am. En. of Law, Vol. 5, pp. 23 and 24, and numerous cases there cited.
    Retention of the employe who was guilty of the wanton or grossly negligent act, and especially his promotion by the company after it knew of such act, are evidence of such a ratification of his act as will make the company liable for punitive damages. Eng. and Am. En. of Law, Yol. 5, p. 24, and cases there cited.
    D. Caffery for Defendants and Appellants:
    1. A plaintiff is bound by bis allegations. A prayer for judgment, according to tlie allegation, must be governed by tbc allegations. When a plaintiff sets out grounds for damage, and says that by reason of the grounds set out he is entitled to punitive and exemplary damages, and prays for damage accordingly, the action is one of his own making for exemplary damages. 10 An. 719.
    2. Vindictive damages do not extend beyond the death of the person injured. 10 An. 138.
    3. Under Article 2318, and Act 71 of 1884, where one of the survivors dies after action brought by both, the action abates for the interest of the co-plaintiff. Southerland, Vol. 3, p. 281.
    4. That when death is instantaneous, the survivors, who have only a right of action for compensatory damages for the suffering and anguish of the deceased, can not recover. 128 Man. 90, 93-9; Cushing, 108; 6 Cald-Tenn. R. 45; 21 A. & E. R. R. 391.
    5.. When the survivors are entitled to recover for suffering of the deceased, and the deceased was a child 3 years old, killed instantly, a verdiet of $5000 is five times as much as has been awarded by this court for prolonged agony of an adult. 37 An. 630; lb. 750; 35 An. 702; 6 S. R. 799.
    6. That when the survivors sue “for damage sustained by them” under Act 71 of 1884, and the child from whose death they make the claim is 8 years old and an imbecile or weak minded, and is shown to be permanently so, no damage can be had of an actual kind, and none other is allowable. Southerland, Vol. —, pp. 283-4-5 and 6.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued the defendant to recover the sum of fifteen thousand dollars.

He alleges that a locomotive and tender of the defendant company in the actual management of the employés of the corporation, ran over and killed his daughter, aged 3 years.

He charges the killing to the negligence of the servants of the cor-: poration, which he characterizes as gross, wanton and criminal.

In support of this accusation, it is alleged that they had time, just prior to the accident, 'to see the child and that they did see her, and' could easily have prevented her death by the exercise of ordinary care.

That alarm was given amply in time, by calling and shouting, but. the men paid no heed to them.

That they neglected to blow the whistle or ring the bell while running the engine through the principal street of the town of Berwick.

The plaintiff sues for fifteeen thousand.dollars for damages inflicted upon himself by the killing of his child, for the grief and sorrow and for physical suffering caused by the death.

He also sues for the damages suffered by the child and fixes the-amount at one-third of the sum sued for. •

The defendant company filed a plea of no cause of-action.

The District Court decided that there was no cause of action for damages claimed by the parents for the death of the child, but overruled the exception, in so far as related to the rights of the child, distinct from her parents, which at the death were inherited by the parents.

The suffering of the child is not proven, nor any other actual damage. The verdict must have been for punitive damages. No motion was made to amend the judgment before this court.

The suit is pending in the name of the father, the mother having died since it was instituted.

The main track, where the accident occurred, is built on a grade, five feet above the ground; on the elevation there is a switch on a level with the main track. It enters the main track about forty feet west of plaintiff’s house.

Steps lead from the approach in front of his house to the top 'of the grade.

The child left the house, passed through the gate that had been inadvertently left open, by one of the neighbors, went up the steps, and into the side track; thence walked west toward the switch joining both the main and side track.

The engine of the company and a tender were running toward the bridge to Morgan City.

There were three men in charge, the engineer, a fireman and- a brakeman.

The plaintiff avers that these men were not at their posts of duty.

That the duty of the brakeman, since the locomotive and tender were running backward through the principal street of the town, was to take his position at the rear of the tender and be on the lookout to signal to the engineer.

The child left the switch and entered the main track. Unconscious of danger, she stepped toward the train and its merciless and, to her, death-bearing wheels. She was struck; fell, and the wheels passed over her body. She was instantly killed.

No allegation of physical pain was made; none could have been proven. The death was sudden. The poor child did not realize the danger'.

A number of persons, residents of the town, saw the child at the time and were alarmed by the danger in which she was.

They made some noise and thus attracted the attention of the men on the engine.

The brakeman rushed to the front of the tender, jumped down and tried in vain to save the child.

The engineer reversed the engine, but it did not stop before the wheels had passed over the body.

As well mention, at this time, that the engineer did not testify in the case. He was dead at the time it was tried.

It was proven that he was competent as any engineer.

The testimony shows that he was an upright and good man.

It is testified that after this accident he was affected when he re-; called the horrible condition of the child after she had been crushed.

The fact that this occurred while he was in charge; the mangled body, the blood-stained rails, preyed upon his mind, and it doubtless afflicted him to think that he was connected — however innocent he may have been — with this horrible accident.

It is the same in. this suit, as too often the case in similar suits.

The witnesses for the defendant contradict those of the plaintiff.

There is a lamentable difference in the testimony.

Those for the latter testify that the cries were loud, and that the alarm was given in time to prevent the accident, if the men had been at their posts.

Those for the former testify that each man was at his post and that everything possible was done to prevent the accident.

While the negligence was not gross, wanton, or criminal, we are confident that vigilant caution was not exercised on the part of the employés on the occasion of the accident.

The superintendent of the road of the defendant testifies that be■fore an engineer starts his engine backward, he must place the brakeman in the rear end of the tender, which is the front end of the engine in the direction in which it is moving. It is the duty of the brakeman to keep a lookout on thé track, so as to warn the engineer in case of danger. It is the duty of the fireman to ring the bell continually whilst passing through a town or village, and all three, the engineer, fireman, and brakeman, should keep a sharp lookout, and in case of danger should stop as soon as it can be done.

The fact remains uncontradicted that the brakeman was not at the end of the tender.

He was in the tender, but not at the front advancing, where he ■should have been.

A claim for punitive damages is earnestly and ably presented for our consideration.

For two reasons punitive damages can not be allowed.

1. The accident was not occasioned by recklessness and wrong intention, evincing malice and evil disregard of the rights of others.

2. Punitive damages is not an inheritable right.

The injury which will justify the allowing of punitive damages is a personal right. It can be exercised only by the party injured and does not survive in the parents.

1. We will not discuss the first proposition, at length, as it would not serve any purpose in our decision. •

Suffice it to say that the proposition expresses our conclusion after a careful examination of the testimony.

2. Respecting punitive damages, the proposition is maintained by an unbroken line of authorities.

We quote from a decision, the correctness of which is unquestioned:

“ Were this suit prosecuted for the behoof of the mutilated individual himself, it is possible we would not think the verdict of the jury too high. In that case the bodily pain and suffering, the deformity of person, the diminished capacity of laborious exertion, might reasonably justify damages of the class called vindictive or exemplary, the standard of which is of necessity exaggerated beyond the limits of an exact arithmetical appreciation, being, as the title imports, in the nature of a penalty and of an example — partaking of • the character of public justice, while redressing a private wrong.” Black vs. Carrollton R. R., 10 An. 38.

In the case just quoted, as the suit was not prosecuted in the name and for the injured minor, the father’s claim -for punitive damages was rejected.

“Only compensatory damages can be allowed.” Vide McKee vs. R. R. Co., 42 An. —.

The father can not recover compensatory damages in his own right, in this case. Under court a qua’s ruling none was proven.

He has not shown, in so far as relates to the child, such injury as enables us to allow compensatory damages to a larger amount than that fixed in our decree. Only nominal damages can be allowed.

The issues come to us limited to the rights of the child to compensatory damages although instituted to recover punitive damages.

Infants have legal rights, distinct from their parents, which are carefully protected by law.

The right to compensatory damages is (different from the right to punitive damages) one which survives in the parents.

We do not find proof, for actual damages, which can be allowed under established jurisprudence.

But we will not give our sanction to the least absence of an employé of a railroad, when a serious accident happens, while passing through a street of a town.

The danger to human life is too great, and employés, to be relieved from all responsibility, must be at their posts.

In the exercise of the equity power of the court, we assess nominal damages at $250.

The plaintiff had reason to complain and to seek judicial investigation of the facts connected with this accident.

He shall not be made to pay costs.

In view of our statement of the case in the first part of the decision and to prevent inference different from our views upon the subject, we will say that we do not think that the doctrine of contributory negligence applies to a child less than four years of age.

A child of such an age is generally incapable of choosing between right and wrong, good and evil, prudence and'rashness.

It is, therefore, ordered, adjudged and decreed, that there be judgment in favor of plaintiff for the sum of $250 and costs of both courts, and that the judgment of the District Oourt, and the verdict of the jury, be reduced to that sum; after reduction and assessment as made the judgment appealed from is affirmed.

Judgment amended and as amended affirmed, the defendant and appellant to pay costs of both courts.  