(55 South. 641.)

No. 18,048.

#### UNDERWOOD v. GULF REFINING CO. OF LOUISIANA.

(Jan. 16, 1911.

On Rehearing, April 24, 1911.)

*(Syllabus by the Court.)*

1.Master and Servant (§§ 121, 124*) — Injuries to Servant — Safe Place to Work-Duty of Master.

It is negligence, so gross as to border upon criminality, for an oil company, engaged in boring a well, to expose its employes to the danger of sudden death from the breaking of the chains used in conveying the motive power from the engine to the drill, or rotary, when such danger can be guarded against, in part, by proper inspection of the chains and, otherwise, by boarding up the side of the derrick upon the floor where the machinery is operated.

[Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 229, 235; Dec. Dig. §§ 121, 124.*]

2.Master and Servant (§ 248*) — Injuries to Servant — Contributory Negligence.

Whilst a particular spot, or line, upon the floor of a derrick, where boring for oil or gas is going on, may be regarded as so dangerous, from the possible breaking of a chain, that no one, expecting to remain upon the floor for any length of time, would deliberately place himself there, yet, if the danger be not obvious, or, apparently, imminent, and there is no such choice between it and any other place on the floor as would prevent an employs, having business with the driller, from placing himself there, for a moment, for the transaction of such business, the inadvertence of the employs, in so placing_ himself, will not relieve the employer of liability for damages for injury done to him, by the breaking of a chain, when it appears that the danger might have been guarded against by a simple and inexpensive expedient. Inadvertence, or momentary failure to appreciate a non-apparent danger, on the part of men accustomed to working about dangerous machinery, can hardly be called negligence, because, being inherent in human nature, the most prudent are not exempt from it, and where the employer, without reason or necessity, creates a danger, he has no right to expect never-failing and superhuman watchfulness on the part of the employe to escape it. To hold otherwise would be to require too little from the one and too much from the other.

[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 801; Dec. Dig. § 248.*]

3.Master and. Servant (§ 209*) — Injuries to Servant — Assumption of Risk — Negligence of Master.

A man employed upon an oil derrick does not assume the risk of his employer’s negligence *969in failing properly to inspect the chains by which the drill is driven.

[Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. § 552; Dec. Dig. § 209.*]

4. Damages (§ 185*) — Evidence—Physical Pain.

Where the skull of a workman is crushed by a blow received from a broken and flying chain, but he lives for several weeks thereafter, and is, at times, semiconscious, .and so far conscious as to respond to calls made upon him by smiling and attempting to speak, the testimony of a witness, who was with him day and night, to the effect that he appeared, at times, to suffer intensely, taken in connection with an admission that experts, if sworn, would differ upon the question whether a person in a semiconscious state can suffer pain, authorizes the conclusion that the patient did suffer physical, though not, perhaps, mental, pain, and this notwithstanding that he -did not appear so to suffer at .any time when he was visited by the attending surgeon.

[Ed. Note. — Por other eases, see Damages, Cent. Dig. §§ 503-508; Dee. Dig. 185.*]

5. Death (§ 31*) — Actions eoe Causing Death — Right oe Action — Statutoey Pbovision.

Under Act No. 120 of 1908, brothers and sisters, in default of child, widow, or parent, succeed to the right of action which a person who dies from an injury had, at the moment of his death, against him by whose fault the injury was received, and they (the brothers and sisters) have also a right of action upon their own account for the recovery of damages for the injury, moral or mental, as well as material, sustained by them by reason of such death.

[Ed. Note. — Por other cases, see Death, Cent. Dig. §§ 35-46; Dec. Dig. § 31.*]

Provosty, J., dissenting in part on rehearing.

Appeal from Pirst Judicial District Court, Parish of Caddo; A. J. Murff, Judge.

Action by L. P. Underwood against the Gulf Refining Company of Louisiana. Prom a judgment for plaintiff, defendant appeals.

Modified and affirmed.

D. Edward Greer and Thigpen & Herold (P. C. Proctor, of counsel), for appellant. Hall & Jack, for appellee.

PROVOSTY, J.

The plaintiffs sue in damages for the death of their brother, who, while in the employ of'the defendant, was killed by a gear chain snapping and one of its ends whipping around and striking him on the head.

The defenses are that the chain was not defective and was not being operated negligently, but that its breaking was nothing more than what frequently happens with the best of such chains, no matter how carefully operated; and that the death of the brother of plaintiffs was attributable to his own negligence in unnecessarily exposing himself to the danger that overtook him.

The link that broke was nearly worn through, and we are satisfied that to its weakened condition the break was due, and not to any overstrain such as unavoidably comes sometimes upon these chains and snaps them; but we are equally satisfied that the brother of plaintiffs exposed himself unnecessarily to the danger, and that therefore no recovery can be had.

He and other workmen were engaged in drilling an oil well. The apparatus used in this work consists of a towerlike derrick, 22 feet square at the bottom and going up tapering to a height of some 85 feet, open on all sides, down the center of which descends the pipe to be sunk into the ground; and of an engine, outside of the derrick, which imparts to the descending pipe a rotary motion whereby it makes its way into the ground, the motive power being transmitted from this engine to the machinery by which the pipe is held and rotated inside of the derrick, by the chain in question. There are two floors to the derrick; one about three feet from the ground, and the other about fifty. The lowest crosspiece of the derrick is about eight feet above the lower floor.

The brother of plaintiffs, when he received his fatal injury, was standing on this lower floor, inside of the derrick, on a line with the chain in question and with the sprocket wheel upon which it revolved, and -near this sprocket wheel. This place was very dangerous, for the reason that whenever the pipe, in going down, would encounter rock or other hard substance, the chain was likely to *971break and. the ends fly off, as happened in this case; and this would happen frequently, and the workmen knew it. The position of the brother of plaintiffs when at work was on the top floor, and his way thither was at a safe distance from the place where he received his injury.

He came and stood at this dangerous place needlessly and thoughtlessly. True, he had but just come there when the accident happened; but he should not have come at all.

His presence there is sought to be justified on the score that he came to get orders from the foreman and driller, who, for operating the drill, stood within three feet of the place. But he could have communicated with the foreman just as well by approaching him from another and safe direction, or by standing safely further away from him.

In a case where the servant has been injured as the result of his having voluntarily taken an unnecessary risk, the master is not responsible, even though by his negligence the risk thus incurred by the servant had been made greater than it would otherwise have been. Day v. Railroad Co., 121 La. 180, 46 South. 203; Darsam v. Kohlmann, 123 La. 164;1 Welton v. Lumber Co., 114 La. 842, 38 South. 580; Howlett v. Bridge Co., 123 La. 709, 49 South. 480; Ball v. Railroad, 123 La, 7, 48 South. 565.

The judgment appealed from is set aside, and the suit of the plaintiffs is dismissed, at their cost.

1

48 South. 781, 20 L. R. A. (N. S.) 881.

On Rehearing.

MONROE, J.

[1] As stated in the opinion heretofore handed down, the derrick was a towerlike structure, some 85 feet high, which tapered from bottom to top, and which, at the lower floor, where the accident occurred, and which was about 3 feet above the ground, was 22 feet square. It was built of pieces of timber, placed upright, and held together by girders, at intervals of 8 feet, and braces, which ran diagonally from one set of girders to another. Through the center of the structure, and the floor, ran the drill (or “rotary”), consisting of iron piping, with a bit upon the lower end, and, to the upper end of which, as the lower end penetrated more and more deeply into the ground, additional joints of pipe were attached. The power by which the drill was rotated was communicated by means of a chain, geared upon sprocket wheels, from an engine, standing upon the ground upon the outside, to a shaft, which ran across the derrick, on the side nearer to the engine and underneath the first girders above the floor; thence, by another chain, similarly geared, from the shaft to a drum, which rested on the floor, beneath the shaft; and thence, as we understand the matter, by means of another chain, or a wire rope, to the drill, or rotary. The driller stood upon the floor, with his hand upon the lever whereby he started and stopped the machinery, and in such a position that he could watch the progress of the drill, to his right, and also keep an eye upon the drum, nearly in front of him, or somewhat to his left. He had entire control of the machinery and of the men who were employed about the derrick, and it was necessary for him, at intervals, and by means of the machinery, to pull the drill out of the ground, in order to renew the bits, upon which occasions it was the duty of the decedent, who was the “derrick-man,” to climb to his station, on a floor 50 feet above, by means of a ladder (consisting of crosspieces nailed to the outside of the derrick) and “take the lever bar off * * * and put it on again.” Just before the accident, the decedent had been to his dinner, and Stephens (the driller) describes what then occurred as follows:

> “I was standing drilling, and he came up on the derrick floor and came around between where I was standing and the rotary, in front of the drum and this chain; and he says, ‘Are you going to pull out?’ And I says, ‘Yes.’ He looked at the rotary for a minute, and says, *973‘When are you going to pull out?’ and I says, ‘Right away.’ And he turns to look'at it again, and, just as he turned, he took a cigar out of his mouth — he was smoking — and he says, ‘It’s going good,’ and turned to look at it again, and, as he turned, facing the rotary, the chain broke, came over the girt and struck him in the head.”

We think that we can hardly do better than to quote somewhat further from the testimony of the same witness, as showing the decedent’s reasons for coming up on the derrick floor at that time and as establishing, or tending to establish, a basis for a comparison of the negligence with which defendant charges him with that of which defendant, itself, was guilty.

The testimony runs as follows:

> “A. He wanted to know if we were going to pull the pipe out of the hole, in order to put on a new bit. Q. Was that about the time to do that? A. Yes, sir; been doing it about that time for a day or two. We didn’t have any certain time to pull it up. Q. Had he made any preparations for going up on the derrick? A. Yes, sir; he had just gotten through dinner and had tied a handkerchief over his head to protect his head. Q. Where was he to go when you would go to pull it? A. He would go up on the derrick, about 50 feet up. * * * Q. He came there and asked you if you were going to pull out, and prepared to go up there and do his part? A. Yes, sir; he was a man that was always ready to do his part. Q. State whether he had been there long? A. He had been there about a minute and a half, or two minutes. Q. Just long enough to say what you have said? A. Yes, sir; just long enough to say what he said. * * * Q. Now, what did he come to you for? A. Well, that is all the business that I know of; he asked me if I was going to pull out, and when. Q. He came to you on business, did he not? A. I don’t know whether it was on business or not. Q. You don’t know whether that meant business or not. A. Information, I suppose he wanted. Q. Information about his work, was it not? A. Well, I suppose, of, course, that applies to his work; that was not his particular business. Q. Whose business was it? A. Mine; I would have him come to me. Q. You would have him come to you? A. Yes sir; if in sight. Q. Would he stand and watch you and wait until you would motion him to come to you? A. No, sir; he didn’t make it a point to watch me, but they were generally standing about, so that I could call their attention. Q. Then what would they do, after you had called their attention? A. Owing to what I wanted them to do. Q. Would they come to you? A. Yes, sir. Q. You would not stop and go to tell them what you wanted done? A. No, sir. Q. You would have them come to you? A. Yes, sir. Q. Is there any noise around the drilling? A. Yes, sir; most ■everything about it is noise. Q. And that was a windy and noisy day? A. Yes, sir. Q. Mr. Stephens, was there anything unusual in his coming to you to get orders? A. No, sir; it was the usual thing. He come around and talked. * * * Q. Mr. Stephens, would you expect Mr. Underwood to get up there on the ladder without knowing whether you were ready to draw out or not? A. No, sir. * * * Q. Then there was nothing strange in his asking you the question? A. No, sir.”

As bearing upon the danger to be incurred in going up on the derrick floor, at all, and in going upon the particular part of the floor where the decedent was injured, we quote the following from the testimony of the same witness, to wit:

> ■ “Q. Now, as a matter of fact, is not the driller the only man in the crew, or is he not, of all men in the crew, exposed to more danger by the breaking of the chain? A. Yes, sir; of those two chains. * * * Q. Was there any particular position that people would take when they would come there to ask you for orders? A. No, sir. * * * Q. They would come to you frequently for orders? A. Yes, sir. Q. Just as he did that day? A. Yes, sir; while not as he did that time; they didn’t, invariably, go around to that particular place. * * * (Cross-examination.) Q. Is that a dangerous position? A. Yes, sir. Q. What is the most dangerous position on the floor of the derrick? A. Well, I don’t know. Q. Well, is it not more dangerous to stand in line with the chains than to stand out of line with them? A. Yes, sir; some.”

J. G. McCure, superintendent of the Producers’ Oil Company, examined on behalf of defendant, testified that he had been in the oil business for 20-odd years, and, further, in part, as follows:

> “Q. Well, what would you say as to the safety of that locality on the derrick floor, immediately in line with the engine chain and between the rotary and the drum? A. It is very unsafe, at any time, in that immediate place. * * * Q. Can you say whether or not any man of experience knows the danger of the space on the derrick floor between the r.otary and the drum and in line with the engine chain? A. Yes, sir; I should think that he would, because that is a very dangerous spot, and they all should know it, if they don’t. Q. Would a man assume that position, if exercising caution? A. Well, I am inclined to think not; I would not I know.”

*975W. O. Wolf, also a witness for defendant, and a builder of derricks, who had been around oil drilling rigs for eight years, testified in part as follows:

> “Q. Mr. Wolf, what have you to say as to the danger of standing in front of the drum on the derrick floor in front of the engine chain; is that a dangerous place? A. Yes, sir. Q. Would you say that a man who had experience in the drilling business would know that it is a dangerous place? A. It looks as if he would. Q. What is the danger of that place? A. The chains very often break. Q. That is a common occurrence? A. Yes, sir. (Cross-Ex.) Q. Mr. Wolf, you say that there is no particular business for a man at the point inquired about unless he is called there for some purpose; if the driller had called him there, and he would come around, I suppose he would come there too? A. That would be left to him as to where he would stand. Q. There would be nothing remarkable about the place he stood, if he went to get orders; there is no place marked out where he should stand? A. No, sir. Q. He goes to where it is convenient for him to speak to the driller and for the driller to speak to him? A. Yes, sir; I should think he would'. Q. I suppose people walk about on the platform — on all parts of it? A. Yes, sir. Q. Indiscriminately; there is no dead line in front of this place? A. No, sir; there are some places that are more dangerous than others.”

Herbert Lancaster, also a witness for defendant, testifies as follows:

> “Q. What have you to say as to the danger of standing on the derrick floor, in front of the drum of the engine chain, while the well is being drilled; is that a dangerous place? A. To a certain extent, it is, yes; you could not tell; it is very uncertain. * * * Q. Is it a fact, or not, that a man of experience in the drilling business knows that it is a dangerous place? A. I believe that they do. * * * Q. Well, after this accident happened, didn’t you see some of the boys do something to prevent such an accident in the future? A. Yes, sir; shortly afterwards. Q. What did you do? A. We put up a piece of 2 by 10, upright, so as to prevent the chain from going over the girder. Q. Just put up a piece of plank, 2 by 10? A. Yes, sir. Q. Two inches thick and ten inches wide? A. Yes, sir. Q. Now, if that piece had been there before, do you think it would have prevented this accident? A. Yes, sir. Q. About how much was the expense of putting it up? A. Very little, I suppose. Q. About how much plank did you use? A. A piece about six or eight feet long. * * * Q. If that was such a dangerous place, why did they not put it up there before? A. I hardly paid much attention to it. Q. They must not have regarded it as so very dangerous before any one was killed? A. Well, it was regarded as a dangerous place; but I never did think much about it while I was working around. Besides, we have something else to think about. Q. When a man is working, he thinks more about his work than his danger? A. Yes, sir. Q. That becomes a habit with people who work about dangerous machines? A. Yes, sir.”

Stephens, the driller, interrogated concerning the plank to which the witness Lancaster refers, testifies as follows:

> “Q. Mr. Stephens, after this accident, did you put up any guard? A. I did not. Q. Has one been put up? A. Yes, sir; one has been put upon the rig. But I don’t remember which one did it. * * * Q. You personally did not put it up? A. No, sir; nor I did not tell him to put it up. * * * Q. Well, if it had been there at the time that this chain broke, would it have cheeked the chain and prevented the accident? A. I suppose that it would, though I don’t know. * **** Q. You suppose that it would have prevented the accident? A. Yes, sir.”

It appears from the testimony of Mr. Stephens that the chain in question was a secondhand chain (which had been brought with the rig, from another field) when he began to use it, and though he says that he looked over it every day, as it was moving, slowly — being oiled — the character of his inspection (if he meant inspection) is not, at all, dwelt upon.

On the other hand, he and other of defendant’s witnesses admit that the link which broke, and which has been brought here as an exhibit, is very badly worn and was dangerous, and there is no testimony whatever to rebut, what appears to us to be, the reasonable presumption that such wearing required considerable time and use. Mr. McCure (whom we have already quoted), referring to the manner in which such chains are used, testifies as follows:

> “Q. Is it reasonably safe to begin the drilling of a well with a chain that has been used before? A. Yes, sir; we usually do use chains that have been used. We just run with them until they break. * * * Q. How many chains do ypu usually have in drilling a well? A. Well, now, I don’t know; we generally put a chain on and let it run. Q. Until you consider it is too much worn? A. Yes, sir; until it gets so it will not run any more. I think that *977is the rule. Q. What is the usual method of inspecting a chain? *A.*Really, I don’t know that there is any particular method. If the chain don’t stand, we put in a new one. Q. Don’t they inspect it from the sound, as it runs over the sprocket wheels? A. I don’t know that that is so, not that I know of.”

> The same witness also says:

> “A. Yes, sir; there is considerable danger with any part of the work. * * * Q. Mr. McCure, I suppose that there is no absolutely safe place on the derrick? A. No, sir; I don’t think there is.”

Mr. Stephens, on that subject, gives the following testimony:

> “Q. Mr. Stephens, sometimes these chains break in two places at once? A. I have never seen that one break in two places, but I have seen the 103 malleable break in two places. Q. In that case, where would the pieces go? A. Sometimes they would go. one way and sometimes they would go another. Q. They go with a great deal of force? A. Yes, sir Q. They are iikely to go through the derrick like they were shot through? A. Yes, sir.”

The derrick floor was, then, a dangerous place, to the knowledge of everybody, and, to the knowledge of everybody, the danger, or one of the dangers, lay in the probability that the chains, one or both of them, would break. It will be noticed that the driller, in answer to the question, “Now, as a matter of fact, is not the driller the only man in the crew, or is he not, of all men in the crew, exposed to more danger by the breaking of the chain,” replied: “Yes, sir; of'those two chains.” From which it must be inferred that his position exposed him to danger from the chain which conveyed the power from the engine to the shaft as well as that which conveyed the power from the shaft to the drum; and it is evident that, when a chain broke in two pieces, he was so exposed no matter where he may have placed himself. Taking the testimony of the driller and of Mr. McCure together, it does not appear to us that the chains were inspected at all. It is true that the driller said that he looked over them every day; that is to say, he looked at them every day whilst they were in motion and being oiled. But, if he had really inspected them, he could hardly have failed to discover the worn and weakened condition of the link, the breaking of which caused the death of the decedent; for, though defendant’s counsel say that such a condition may be brought about suddenly, none of the witnesses so testify, and we think it much more likely that the wearing was gradual. It is also true that the testimony shows that new chains sometimes break, from which it may be necessary to concede that, under the conditions as they existed, those who worked upon the derrick floor, including Stephens, could not have been entirely protected from breaking chains even by an efficient inspection of the chains, though, so far as we can judge, such inspection would have saved Underwood’s life. But the more we concede with regard to the danger from the breaking of - chains and to the difficulty of providing against it, by their proper inspection, the more culpable does the failure of the defendant to adopt other measures of precaution appear. Lancaster, to whom Stephens refers as “one of the boys,” had no difficulty, after Underwood was killed, in seeing that the killing of another man, in that way and place, could be prevented by the putting up of a single plank, and it seems to us apparent, from an inspection of the model that has been brought up, that by the use of a few more planks the whole derrick floor could have been made safé from that particular peril, and that defendant could have seen it as readily before Underwood’s death as Lancaster did afterwards. Stephens, who, as to Underwood, represented defendant, testifies, not only that he did not put up the plank, even after the accident, but that he did not tell any one to put it up; from which we conclude that his habit of mind was about that described by Lancaster. That is to say, he gave more thought to his work than to his *979danger or to the danger of those who were working under him.

Whilst, however, Lancaster’s statement that it becomes a habit with people who work around dangerous machines to think more about the work than the danger, maybe regarded as a commonplace truth, the fact that it is so makes it all the more imperative that those who employ people to work around dangerous machines should think, at least, as much of the danger as of the work, since the -burden rests upon the employer to furnish the employé with a reasonably safe place in which to do his work, and the employé, relying upon the employer to discharge that obligation, may, to some extent, be excused for not assuming it.

[2] Applying those conclusions to the facts of the instant case, we are of the opinion that it was negligence, so gross as to border upon criminality, for defendant to have provided a place, such as the derrick floor, where its employes were expected to go, and were in the habit of going, in the proper discharge of their duties, and where they were subjected to the danger of being killed at any time, by a broken chain, when that danger might have been guarded against by an expedient, so simple, so patent, and so inexpensive, as that which, after the death of- Underwood, was adopted, of his own motion, by another of its employés. Nor do we, after carefully considering the matter, find anything in the conduct of Underwood which should shield defendant from the consequences of that negligence. It is true that the witnesses who were asked whether the particular place where Underwood was standing, when he was struck by the chain, was a dangerous one, answered in the affirmative. On the other hand, Stephens testified that he was exposed to more danger, from the breaking of a chain, than any other member of the crew; that he did not know which was the most dangerous place on the floor of the derrick; that the men had no particular place to stand when they came to him for orders, though they did not “invariably” go around to the place where Underwood went; and, being asked, “Well, is it not more dangerous to stand in line with the chains than to stand out of line with them,” he answered: “Tes, sir; *some.”*He also testified that the chains sometimes broke in two pieces, which flew in any direction, as though they had been shot; and it does not appear that it occurred to him that Underwood was in any particular danger, during the minute and a half or two minutes that they talked, as we find no suggestion that he then mentioned it, as he, no doubt, would have done if he had considered the matter at all urgent. Wolf, too, says that there was no “dead line” on the floor, and that persons, desiring to speak to the driller, would go to the place most convenient for that purpose. And Lancaster, being asked the usual question: “What have you to say as to the standing in front of the drum and of the engine chain, while the well is being drilled; is that a dangerous place?” answered: “To a certain extent, it Is, yes; you could not tell; it is very uncertain.” From all of which we conclude that, whilst the place referred to was regarded as dangerous, so much so that no one wishing to remain on the floor for any length of time would deliberately place himself there, the danger was not an obvious one and was not regarded as imminent, and there was no such choice between it and any other place, where the driller could be talked to, as to have prevented one of the employés from going there, for a moment, for that purpose. But let us suppose that it was otherwise, and that the spot upon which Underwood stood when he was struck was regarded as too dangerous for -any one to occupy, even for a moment, and that Underwood knew it; how does his inadvertence (as, under such *981circumstances, we think it might he considered) in so doing compare with the conduct of the defendant in having such a place on the floor, where its employes were coming and going, and, having it there, in failing to enclose it or to erect some sign to remind those who might come in the neighborhood of the danger; and what are we to think of Stephens, who allowed Underwood to stand where he did, and talked to him, without suggesting that he might find a safer place to stand?

On the one hand, the defendant was guilty, as it appears to us, of inexcusable and continued negligence, in failing to take the slightest precaution for the protection of the lives of those to whom it owed the duty of taking all the precaution that the circumstances could reasonably call for or permit. On the other hand, defendant’s employs failed for a minute and a half or two minutes to realize, or to remember, that a particular, open, unmarked, spot or line, on the floor of the derrick, was regarded as more unsafe than other unsafe spots or lines on the same floor — a thing which was not only likely to occur, but which, sooner or later, as we think, was certain to occur, and which, judging from Stephen’s statement, to the effect that the men did not “invariably” go around to , that spot when they came to speak to him, had frequently occurred.

Such inadvertence, or momentary. failure to appreciate a nonapparent danger, can hardly be called negligence, because, being inherent in human nature, the most prudent are not exempt from it, and, in view of the fact that the provision was so obvious and could so easily have been made, it should have been provided against by the employer, who, having without reason or necessity, subjected the employe to the danger, had no right to expect never-failing and superhuman watchfulness, on his part, to escape it. To hold otherwise would be to require too little from the one and too much from the other.

In Kane v. Northern Central R. Co., 128 U. S. 91, 9 Sup. Ct. 16, 32 L. Ed. 339, it appeared that the plaintiff knew that there was a step missing from one of the freight cars, constituting the train upon which he was employed, and that, in attempting to let himself down from the car, he forgot, or failed to recall, that fact, and consequently fell and was injured. The trial court sustained the plea of .contributory negligence and dismissed the suit. The judgment was reversed by the Supreme Court, where it was held that:

> “The court erred in not submitting to the jury to determine whether plaintiff, in forgetting, or not recalling, at the precise moment, the foot that the car from which he attempted to let himself down was one from which a step was missing, was in the exercise of the degi’ee of care and caution which was incumbent upon a man of ordinary prudence in the same calling and under the circumstances in which he was placed. If he was, then he was not guilty of contributory negligence that would defeat his right of recovery.”

[3] Upon the subject of the assumption of risk, the most that can be said is that Underwood assumed the risk of the breaking of a chain which had been properly inspected. He did not assume the risk of defendant’s using a chain, and particularly a secondhand chain, without the proper Inspection, constantly repeated. And we believe that the chain by which he was injured was not so inspected, and, if it had been, would have been found unfit for use.

The servant does not assume the risk of the master’s negligence. Roff v. Summit Lumber Co., 119 La. 571, *44*South. 571; Hough v. Railroad Co., 109 U. S. 213, 25 L. Ed. 612; Northern Pacific Railroad Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843; 40 L. Ed. 994; Dresser on Employer’s Liability, pp. 192, 199; Labatt on Master & Servant, *983vol. 2, pp. 511, 556; Bailey on Master & Servant, p. 461.

> “Servants,” said Lord Cranworth, “must be supposed to run the risk of the service in their contemplation when they voluntarily undertake it and agree to accept the stipulated remuneration. This, however,” he adds, “supposes that the master has secured proper servants and proper machinery for the conduct of the work.” Wood on Master & Servant (2d Ed.) p. 675.

[4] The remaining question is as to the quantum of damages, and the elements to be considered in ascertaining and fixing the same. Plaintiffs are the two brothers of the decedent, and they sue in his right and in their own, under Civ. Code, art. 2315, which, as amended by Acts Nos. 71 of 1884, and 120 of 1908, reads:

> “Every act whatever of man which causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive, in case of death, in favor of the children or widow of the deceased, or either of them, and, in default of these, in favor of the surviving father and mother, or either of them, and in default of any of these, then, in favor of the surviving brothers and sisters, or either of them, for the space of one year from the death; provided, that, should the deceased leave a widow together with minor children, the right of action shall accrue to both the widow and minor children; provided, further, that the right of action shall accrue to the major children only in those cases where there is no surviving widow or minor child or children. The survivors above mentioned may, also, recover the damages sustained by them by the death of the parent or child or husband or wife or brother or sister, as the case may be.”

The decedent was about 27 years of age at the time of the accident, and left neither wife nor child nor parent, and no brother or sister, other than plaintiffs, one of whom was of the same age (being a twin) and the other a few years younger. Neither of the plaintiffs was dependent on the decedent, nor had they seen much of him for several years pri- or to his death, though their relations were brotherly and affectionate, and the decedent had rendered some assistance to the younger brother in the completion of his education. After the accident, the decedent was removed to a sanitarium, at the instance of defendant, and defendant arranged for the medical attention and nursing which he there received, and, as we take it, is liable for those expenses, as, also, for the expense of the burial.

The physician by whom the decedent was attended was called to the stand as a witness, expert and otherwise, for plaintiffs, and gave the following testimony upon the question whether his patient experienced any-suffering:

> “Q. Doctor, what was his injury? A. Fracture of the skull; penetrating the brain. Q. Did it cause paralysis of any part of the body? A. Yes, sir; it caused paralysis of the arm, leg, and, in fact, his entire right side. He was. struck on the left side. Q. In the condition in which Mr. Underwood was, from the time that you first saw him up to the time that he died, was he ever in a condition in which he could have felt any pain? A. Well, I hardly think that he was, because, at the time when he was at his best — when it looked like he was doing his best — he was not suffering, as the wound was drained and was giving him no cause for suffering, and, towards the last; he was paralyzed and did not appreciate anything. Q. Doctor, can there be any pain when a man can-' not feel it? A. No, sir. Q. Doctor, what is pain? A. Pain is simply the operation of the brain, of the crying out of the nerves. Q. So-that, if the brain and the nerves are not in a condition to receive pain, there is no pain? A. No, sir. Q. So that a man unconscious cannot suffer pain? A. No, sir. Q. And he was not in a condition to suffer pain, from the time you saw him? A. No, sir; I don’t think that he was ever entirely conscious. He was, at one time, semiconscious. Q. Then, could he have felt any pain? A. During that time, he was not suffering much pain, because there was not any cause for suffering much pain. * * * (Cross-examination.) Q. Doctor, I believe you said that, part of the time, he was partly conscious; he would answer to his name? A. He never would speak. Q. He would show that he knew when he was spoken about? A. Yes, sir; you could arouse him, and he would look at you, and perhaps smile. Q. And make an effort to speak? A. Yes, sir.”

One of the plaintiffs, who was in constant attention upon the decedent during a greater part of the time, between the date of the accident and that of the death, testifies as follows:

> “A. If the signs of a human being betoken his feelings, I am sure that he suffered intensely. *985* * * Q. Did he undergo any operation during that time? A. Tes, sir; according to the •statement of the doctors and the evidence apparent, he appeared to have undergone two operations. * * * I could see that his scalp was •cut in three different ways. I helped to dress the wounds several times. I could see that it had been worked on; his skull appeared to sink in there.”

To the testimony thus quoted there is add■ed this admission, viz.:

> “It is admitted that medical experts would, if «worn, differ in their opinion as to whether an injured person, in a semiconscious condition, experiences pain.”

It will be observed that the physician says that, during the time that the deceased was semiconscious, “he was not suffering *much pain,”*from which we infer that he entertained no doubt that a person in a semiconscious condition may suffer pain, much or little, according to circumstances. And we can conceive of no reason why, if one be •semi, or half, conscious of .anything, he should not be semi, or half, conscious of pain; in fact, it appears to us that, though -one may be semiconscious of other things, that term can hardly be applied to the physical suffering, resulting, for instance, from acute indigestion or colic, which compels a man to roll and toss about in his sleep and finally awakes him, or to the mental suffering, superinduced by the same physical cause «.nd which may consist of an agony of apprehension lest one fall down an imaginary precipice or be crushed by. an imaginary weight. The learned doctor who testified, no ■doubt, visited his patient at stated times, as the ease seemed to require; but the brother was with him day and night, and it may well he that, in saying, “if the signs of a human being betoken his feelings, I am sure that he suffered intensely,” he was referring to the long reaches of the night and the intervals during the day, when he saw the patient and the doctor did not. We are therefore of opinion that the testimony, taken as a whole, authorizes the conclusion that the decedent suffered considerable physical pain, though we do not find that it shows that he suffered mentally otherwise than as connected with such physical pain; in other words, the testimony does not convey the impression that he, at any time, realized or apprehended that his injury would result fatally. Upon the cause of action which he had, at the moment of his death, therefore, the evidence entitles plaintiffs to recover for only the physical pain to which we have referred.

[5] The remaining question is: What, if anything, are plaintiffs entitled to recover upon the cause of action conferred on them by the last’ paragraph of the statute; that is to say, what damages have they, themselves, sustained by reason of their brother’s death?

Prior to 1855, article 2315 (then 2294) of the Civil Code read:

> “Every act whatever of man which cause's damage to another obliges him by whose fault it happened to repair it.”

And it was a literal translation of article 1382 of the Code Napoleon, under which the French courts have always held that the death of a person, through the fault of another, may furnish a cause of action on behalf of certain survivors, and that mental suffering, or “prejudice moral,” and material injury, alike, are elements to be considered.

Thus in Fuzier-Hermann (Code Civil, Annoté, vol. 3) we find:

> “557. Le dommage qui engage la responsabilité de son auteur dans les termes des arts. 1382 et s. s’entend du dommage moral, comme du dommage matériel. Casse Beige, 17 mars 1881 (S. 82.4.9, p. 82.2.14)” — citing, also, Larombiere, arts. 1382, 1383, Nos. 36, 37; Laurent, vol. 31, No. 672; Aubry et Rau, vol. 4, p. 748.

> “558. Spécialement du dommage moral causé par la mort d’un parent.

> “559. En consequence, les parents dont l’enfant est mort, a la suite d’un accident causé par l’imprudence d’un tiers, ont le droit de réelammer a ce tiers des dommages — intéréts * * * occasioné par les frais de maladie, les frais fun*987éraires, etc., mais encore pour le prejudice moral résultant de l’atteinte portée 3. l’affection des parents par la perte d’un enfant en qui_ ils pouvaient légitimement enlrevoir un soutien pour l’avenir. Bordeaux Nov. 1881 (S. 82.2. 183, p. 82.1. 920).

> “560. Décidé encore que les juges saisis d’une demande en dommages — interSts formée par un mari commercant contre 1’auteur d’un accident qui a causé la mort de sa femme, doivent compte du prejudice moral résultant, non pas uniquement de la ¿ouleur du mari, mais encore, et principalement, de ce qu’il lui sera impossible de trouver a l’avenir dans le personnel par lui employe, le coneours d’aptitude, de qualités et de dévouement qui lui apportait sa femme dans son commerce. Bruxelles, 13 janvier, 1890 (S. 90.4.23, p. 90, 2.40).”

So, also, in Dalloz, among the annotations upon C. N. 1382, we find:

> “No. 46. Un dommag'e matériel n’est pas le seule qui donne ouvérture a l’action en reparation, il suffit d’un interét moral. ^ ^

> “No. 290. Que le prejudice causé soit matériel ou moral la'responsabilité est encourue.”

> “Nos. 107 243. Le chiffre des dommages — interets dus a la veuve et aux enfants de la victime d’un accident de chemin de fer, doit Stre basé non seulement sur le dommage — matériel par eux éprouvé, mais encore sur le prejudice moral résultant de la perte du pSre de famille, des affections briseés et de la douleur, sans que néamoinsi la somme soit hors de proportion avec la perte réelle et appreciable a prix d’argent.”

> “No. 342. Lorsqu’il y a prejudice moral, les tribunaux doivent l’apprécier suivant les régles de l’équité.”

While our law was in the condition stated, there was presented to this court the case of a widow, suing in her own behalf and in behalf of her minor children, for damages for the negligent killing, in a railroad accident, of the husband and father, and this court, through Rost, X, in rejecting the claim, said:

> “On general principles, the only private rights which laws recognize and which Constitutions are established to protect are the rights of persons .and the rights of property. The plaintiff and her children do not complain of any wrongs to their own persons, and it cannot, be pretended that they had any rights of property in their husband or father. It appears to us, therefore, that, *without a special statute authorizing such actions,*they cannot he maintained. It is a strong argument in favor of this view of the law that, in a country where private rights are so well protected as they are in England, it is settled that those actions do not exist at common law. Baker v. Bolton, 1 Campbell, 493. In Carey v. Berkshire R. Co., 1 Cush. (Mass.) 475, a case similar to the present, the rule of the common law was reaffirmed. * * * In England, of late years, this omission has been supplied by statute in a limited class of cases. 9 & 10 Victoria, c. 93. # **** * * * *

> “It is further urged that, under article 2294 (now 2315) of our Code, every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it, that this article has enlarged the remedies given by our former laws in cases of damages arising from tortSj and that the present action should be maintained under it. It cannot be denied that the commentators on the same article in the Napoléon Code seem to favor that opinion, and that the Court of Cessation has adopted it in two instances. Great as is our deference for that enlightened tribunal, we are unable to adopt their conclusions,” etc. (Italics by the present writer.) Hubgh v. N. O. & Car. R. Co., 6 La. Ann. 496, 497, affirmed in Hermann v. Same, 11 La. Ann. 5.

The case thus referred to was decided in 1851, and, four years later, the General Assembly amended and re-enacted the article 2294 so as to provide that the right of action thereby given to a person injured should:

> “Survive, in case of death, in favor of the minor children and widow of the deceased, or either of them, and, in default of them, in favor of the surviving father or mother, or either of them, for the space of one year from the death.” Act March 18, 1855, No. 223; Rev. St. 1856, p. 79, § 18.

But no other right of action was given to a person surviving, on account of the death of another, and it was thereafter held that a petition by a father, alleging the death of his child through the negligence of a third person, and alleging his own and the mother’s mental suffering on that account, disclosed no cause of action. Earhart v. N. O. & Car. R. Co., 17 La. Ann. 243.

In another case, where the surviving husband sued on behalf of his minor child, as exercising the right of action inherited from its mother, and also a right of action on its own account, and where the husband likewise claimed damages for himself, it was held that the right of action first mentioned was the only one that the minor had, and that *989the husband, had. a right of action for the recovery of the “expense and damage” which he suffered, after the infliction of the injury by reason of which his wife died — meaning, thereby, the actual expense to which he was subjected by reason of the accident. McCubbin v. Hastings, 27 La. Ann. 716, 719.

In still another ease, it was held that the right of action accorded by the act of 1855, to the minor child, the widow, and the parents, could not be extended to the husband or any one else.

> “Article 2315,” said the court, “appears quite clear on this particular point, and cannot be construed so as to confer the right upon persons not expressly mentioned in it. In the absence of the amendment made to the original article 2294 of the code of 1825, no right of action would exist at all. It took special legislation to bestow it upon certain named beneficiaries, and that legislation cannot be liberally construed.” Walton v. Booth, 34 La. Ann. 914.

In 1884, the General Assembly, by Act No. 71, amended and re-enacted article 2315, as then existing, and added to it the paragraph:

> “The survivors above mentioned may also recover the damages sustained by them by the death of the parent, or child, or husband, or wife, as the case may be.”

And, shortly afterwards, there was presented to this court a case predicated upon a cause of action which had arisen prior to the passage of the act of 1884, being a case in which a mother, suing for damages for the negligent killing of her son, claimed a certain amount, in his right, for the physical and mental suffering endured by him, and a further amount for “the loss of his support and the deprivation of his society, care, and attention,” and the court, among other things, said:

> “The second item of damage cannot be considered. Legislation and jurisprudence have combined to perpetuate the extraordinary doctrine that the life of a freeman cannot be made the subject of valuation; and, under the dominion of that dogmatic utterance, made earlier than the Roman Digest, reproduced therein, and echoed by the courts of all countries from them till now, the singular spectacle has been witnessed of courts sanctioning damages for short-lived pains and refusing them for a long-life sorrow and pecuniary loss consequent upon the death of one from whom was derived support, comfort, and even the necessary stays of life. Legislation has, at last, come to the relief of future sufferers. The act of 1884 applies the remedy that the public conscience has long demanded, but it has missed application to this case only by a few days. The act was approved July 10th and took effect in Bossier on the 30th. The accident and death occurred on the 25th of that month. * * * Among the numerous instructions excepted to by the defendant is the following: That, while the plaintiff could not recover damages for the death of her son, the jury may assess them in her favor for loss of his society and services and for support to such an extent as it appears that he would have given her had he not been killed. That charge is error and misled the jury. The loss of his society and of his aid in her support is the direct consequence of his death. Under the law as it existed when he was killed, such damages are not recoverable. The verdict lumps the damages, and we cannot know what portion was given for the recoverable cause and what portion for the unrecoverable, and we must therefore assess them ourselves. The death was immediate, if not instantaneous. The unfortunate man was precipitated, with the engine, 90 feet. His forehead was cut, and, if he survived the blow upon his head, his death by drowning followed quickly. No arithmetical calculation can compute the intensity of that agony that overwhelms the victim of such an accident when he confronts death; but a sum has to be adopted, and its apportionment to the duration and intensity of the suffering is not determinable by fixed rules. What was endured is unknown and unknowable; but it is safe to conclude that the jury gave the larger part of their verdict for the loss of support and the laceration of the mother’s heart by the horrible death of her young and only son. These elements must be eliminated, and we shall reduce the judgment.” Van Amburg v. Railroad Co., 37 La. Ann. 651, 653, 654, 55 Am. Rep. 517.

We have thus quoted, somewhat in ex-tenso, from the case cited for the purpose of showing that, from the moment that the law, giving to certain survivors a right of action, on their own account, for damages resulting to them from the death of a relative, was first brought to its attention, this court has regarded damages resulting from injury to feelings as recoverable under it, equally with those resulting from injury to the person, or to the purse. Now, it is true that it has always been held, and is the rule *991now, that, so long as the person receiving an injury and the person by whom it was inflicted live, the action for the recovery of •damages is so far personal that those resulting from injury to feelings can be recovered only by the person upon whom the injury was inflicted, though a third person may recover damages otherwise resulting to him from such injury. Thus, in a case decided in 1855 it appears that a boy was badly crippled through the negligence of the defendant, and that his father brought suit for damages alleged to have been sustained by himself claiming nothing on account of the boy. Only four of the judges participated in the decision (Spofford, J., taking no part), and Buchanan, X, as the organ of the court, held that, under paragraph 3 of article 1928 (now 1934) of the Civil Code, which declares that, in the assessment of damages, in cases of offenses, quasi offenses, and quasi contracts, much discretion is left to the judge or jury, plaintiff might recover the expenses incurred by him for medical and surgical attendance and nursing and for loss resulting from neglect of his business during his son’s illness, and that the jury could also take into consideration the prospect of further loss to him arising from his son’s crippled condition, which was likely to render him a burden during a period when he might otherwise be earning his own livelihood or assisting his father. It was further held, however, that the solicitude, anxiety, and anguish of the parents, on account of the “mutilation of a healthy and promising boy,” could not be taken into account, because to do so would be to inflict vindictive damages, in a case which did not justify such action, though it was said that the case would be different had the suit been prosecuted in behalf of the sufferer himself.

Slidell, C. J.,

dissenting, agreed with the majority of the court that, as the accident had imposed upon the father a large pecuniary liability, for medical and surgical aid, and had required him to devote his time and attention to his son, to the sacrifice of his business, he ought to be permitted, so far as he made proof, to recover on these counts; but he doubted whether more should be allowed, and he was of opinion that at all events nothing more (nor, in fact, so much) had been proved. Proceeding to consider the question of injury to feelings, he said:

> “I do not think the father’s mental suffering should be an element in the assessment of damages in his favor. This would be extending, without a sufficient legal ground, the exception to the general rule that actions for injury to the person are personal. Moreover, let us bear in mind the difficulty which would result from recognizing the mental suffering of the third party as an element of damage. Where is any but an arbitrary limit to be found in extending its benefit? Could an action for damages on that ground, if allowed to the father, be refused to the mother, the brother, the sister? The subject was recently considered in England, in an action by a widow for damages by reason of the killing of her husband, brought under the statute of 9 and 10 Victoria, by which, in such actions, it was enacted that: ‘The jury may give such damages as they may think proportional to the injury resulting from such death, to the parties, respectively, for whose use such actions shall be brought.’ The rule, said to be adopted in Scotland, of giving a solatium, for the mental suffering, was held to be inapplicable to the English statute, broad and general as its language is; and the impos-. sibility of .apportioning the damages among the parties entitled to receive them, if they were based upon the mental suffering of the parties, was greatly relied upon by the court as indicating the intention of the Legislature to confine the damages to the actual pecuniary loss of the sufferers. See Law & Equity Rep. 442, Blake v. Midland Railroad Company.” Black v. N. O. & C. R. Co., 10 La. Ann. 33, 63 Am. Dec. 586.

Since the decision thus quoted was rendered, the idea that damages allowed for mental suffering are exemplary, punitory, or vindictive in their character has been very generally abandoned, and they are now recognized by this court and other courts as actual and compensatory. Thus, in .one case, being an action in damages for the wrongful issuance of an attachment, the court, among other things, asked:

> “Must actual damages be confined to an absolute pecuniary loss?”

*993And cited Sedgwick & Greenleaf, to the effect that:

> “Injury resulting from the acts or omissions of others, *free from any taint of fraud, malice, or willftil wrong, consists:*(1) Of the actual pecuniary loss sustained. (2) Of the *indirect pecuniary*loss sustained in consequence of the pecuniary loss; profits that might have been made; * * * loss of credit; loss of business. <3) *Mental suffering,*produced by the act or omission in question; vexation; anxiety. (4) The *value of time*consumed in establishing the contested right. (5) *Actual expenses*incurred; * * * costs and counsel fees.”

The opinion then proceeds:

> “Though, as we have stated, the execution of the writ was not characterized by that harshness and disregard of the interest of the plaintiffs as if prompted by malice, yet it was executed, and illegally executed, and the mode of its execution, though of the mildest kind, was sufficient to have caused great mortification, annoyance, and vexation to plaintiffs, such as the enforced presence of the sheriff’s keeper, for two weeks, in their business establishment, serving as a constant reminder of their being under business restraint and surveillance, unwarranted though it was. Those were proper subjects for the consideration of the jury in estimating damages.” Byrne *&*Co. v. Gardner, 38 La. Ann. 6.

In Dirmeyer v. O’Hern, 39 La. Ann. 961, 3 South. 132, plaintiff sued for damages for the wrongful execution of a writ of provisional seizure, and, the defendant having died after the suit was begun, it was allowed to be prosecuted against his heirs. In the course of the opinion, the court said:

> “It is also urged that the damages given by the verdict and judgment were exemplary or punitory in their character; * * * that they were personal to O’Hern; and that the action to recover them abated with his death. There is no force in this contention. The damages were actual in their character, although of that kind the estimate of which is left largely to the discretion of the jury or court. Giv. Code, art. 1934. We may well conceive that the injury, the suffering, inflicted on Dirmeyer and his family, by the brutal conduct of O’Hern, was as intense and painful as, or, perhaps, more so than, if physical violence had been used and he had actually belabored the man and his wife with his bludgeon. There has been great confusion of ideas, which even, to some extent, is shown in- our own reports, respecting actual and exemplary or punitory damages. The former is often confounded with pecuniary loss and limited to pecuniary loss, and all beyond that, such as injuries, physical and mental, are classed with the latter. This is a mistake. Indeed, were the question an open one, we would hesitate before recognizing this element, of exemplary, punitory, or vindictive, damages, as existing in the civil law. The theory of these kinds of damages is that, after a full indemnity has been found by a jury or a court for the injury suffered, a sum, in addition thereto, may be arbitrarily imposed, to punish the wrongdoer, and, by such punishment, set an example to deter others from the commission of a like offense.”

See, also, Van Amburg v. Railroad Co., 37 La. Ann. 651 et seq., 55 Am. Rep. 517; Caspar v. Prosdame, 46 La. Ann. 38, 14 South. 317; Wimbish v. Hamilton, 47 La. Ann. 254, 16 South. 856; Fitzpatrick v. Publishing Co., 48 La. Ann. 1116, 20 South. 173; Sundmaker v. Railroad Co., 106 La. 111, 30 South. 285; Bourg v. Brownell-Drews Lumber Co., 120 La. 1009, 45 South. 972, 124 Am. St. Rep. 448.

Judge Thompson, in his work on Negligence, after citing cases in which damages were allowed for mental suffering resulting from the nondelivery of telegrams announcing illness or death, says:

> “Other courts, take the view that no damages can be recovered for such a default predicated upon a mere injury to feelings, unless — and such a case can hardly 'be conceived — the default has resulted in some physical suffering, which is the, proximate cause of the mental suffering. Those courts which suppose that such damages may be given where the injury is accompanied with *physical' pain*and suffering have evidently confused the special damages with *exemplary damages,*having in mind the well-known rule that *exemplary damages*cannot be recovered in any case where no actual damages have been sustained. But damages, on the ground of injury to the feelings, are not given in those cases as exemplary damages, but as compensatory damages, and in such cases exemplary damages may be given or withheld, in addition, according to the presence or absence of malice, fraud, oppression, or gross negligence. * * *” Thompson on Negligence, vol. 2, § 2479.

> “A general reading of this chapter will make it clear, beyond all question, that damages are constantly awarded for the sense of outrage, indignity, and humiliation visited upon a passenger by expelling him from a vehicle of the carrier, although without violence, and although no substantial losses are subsequently entailed upon him as a proximate consequence of the expulsion. If this were not the rule, there would be no right to recover damages for insulting language, or for expelling a passenger in a rude and boisterous manner, or for subjecting a passen*995ger to the nuisance of riding in a coach with drunken passengers, who use coarse and obscene language in the hearing of the passenger. Some courts adhere, or affect to adhere, to the rule that, although mental suffering alone will not support an action, yet it constitutes an aggravation of damages when they naturally ensue from the wrongful act complained of; and, although this has been applied to cases of the kind now under consideration, yet a very little attention to the subject will make it clear that there is not a trace of sense in the rule which makes the recovery of damages for mental pain and suffering depend upon the fact that there has also been a physical injury. A jury is just as capable of estimating the amount of damages which ought to be awarded for the mental pain and suffering, where there has been no physical injury, as where there has been such injury. * * * It has been held that, where the ejection of a passenger by a train conductor is made in good faith, and without malice, but through an honest mistake as to his duties, the giving of damages-for the humiliation and mortification suffered by the passenger is erroneous. The decision cannot be supported on principle. Damages given on the footing of humiliation, mortification, mental suffering, etc., are compensatory, and not exemplary, damages.” Id. vol. *3,*§ 3288.

The original article, No. 2294, having, as we have stated, been amended, in 1855, so as to devolve the right of action, of a person dying from an injury received through the fault of another, upon his minor children and widow, or his parents, in default of those first mentioned, and having been amended, in 1884, by conferring upon said beneficiaries a right of action' upon their own account, in addition to that derived from the decedent, this court has had frequent occasion to interpret the article as thus amended, and has more than once specifically held that, in an action by one of the beneficiaries mentioned, suing in his or her own right, for damages caused by the death of the mother, father, husband, or child, the mental suffering of the plaintiff, resulting from the wound to the feelings, loss of society, and of kindly offices, is an element which is to be considered equally with the material or pecuniary loss.

In one ease, the parents sued for damages caused by the drowning of their daughter, a girl of 16, through the negligent handling of a boat asserting her right of action as well as their own, and it was said by the court:

> “The daughter whom the plaintiffs have lost was an active girl, full of life and spirits, and of great physical vigor, who assisted in the work which was required about their country home, and _ they might reasonably have expected a continuation of that assistance and of the filial and kindly offices which the deceased, as an affectionate daughter, owed to her parents. The plaintiffs are also entitled to recover the amount which the daughter was entitled to recover, at the moment of her death.” Le Blanc and Wife v. Sweet et al., 107 La. 369, 370, 31 South. 773 (90 Am. St. Rep. 303).

In another case, a widow, having recovered damages for the negligent killing of her husband, brought suit on behalf of her minor children, and, in assigning reasons for the judgment in their favor, the court said:

> “The fact that the beneficiaries under the statute are the ‘minor’ children, and not ‘all’ the children of the deceased, * * * indicates clearly that the object of this law * * * was to save them harmless, during their minority, from the loss of the benefits (material and moral) which they would have received had tlieir father lived up to the time of their respective majorities — to provide for their temporary needs, to tide them over to majority under as favorable conditions as they would have been tided over had their father not been killed. * * * The children have been wounded in their affections by their father’s death. They have been, during their minority, deprived of the benefit of their father’s training and advice and of the pleasure and comfort of his society.” Eichorn v. N. O. C. R. L. & P. Co., 114 La. 724, 725, 38 South. 530, 531.

In another case, where the widow, alone, sued for damages sustained by her in consequence of the negligent killing of her husband, it was said:

> “In assessing the damages, the distress and mental suffering inflicted upon the plaintiff by the deprivation of her husband’s companionship are, under our law, elements to be considered, and, as her pecuniary loss, resulting from the failure of her husband’s support, is to be made-good, upon the hypothesis that, though engaged in a hazardous occupation, he would have furnished her with such support during the unexpired term of his life, the average duration of which is to be assumed, the question of the amount that should be allowed is impossible of determination upon any scientific basis. The most that the courts can *do,*in such a case, is to exercise a sound judicial discretion and award such amount as, all the circumstances consid*997ered, may seem just to both litigants and not unduly oppressive to either.” Dobyns v. Yazoo & M. V. R. Co., 119 La. 82, 43 South. 937.

In another ease, the father sued for damages in his own right alone, alleging:

> “That he was greatly attached to his son, and that the anguish and mental suffering caused by the loss of his boy cannot be compensated by the amount sued for, or any amount; but he shows that said defendants should suffer, to the amount claimed, for their reckless disregard of human life and for their criminal negligence which resulted in the death of his boy.”

It was held that the case was not one for the infliction of punitory damages, but that plaintiff was entitled to an award for his mental suffering. Parker v. Crowell & Spencer Lumber Co., 115 La. 463, 39 South. 445.

In a similar case, i. e., where a father sued in his own right, alone, for damages resulting from the death (through defendant’s negligence) of his son, the court, after saying that “it would hardly be contended that A. could recover for any mental disturbance that he might suffer by reason of the maiming, the libeling, the assaulting, or the death of his cousin, his uncle, or his brother,” and, after referring to the doctrine, previously approved by it, that widows, children, and parents may recover damages for mental suffering caused by the negligent killing of their husbands, parents, or children, proceeded as follows:

> “Appreciating the fact that the doctrine thus sanctioned should be applied with great circumspection, and should not perhaps extend beyond cases of the character to which it has thus been already applied, we nevertheless find no sufficient reason for receding from the position so taken. — that, under our law, the mental suffering and deprivation caused to a parent by the death, through negligence, of his child, is an element which may properly be considered in an action for damages against the party 'charged with the negligence.” Bourg v. Brownell-Drews Lumber Co., 120 La. 1026, 45 South. 978 (124 Am. St. Rep. 448).

It may be remarked, in this connection, that, in the case thus cited, the present writer, as the organ of the court, appears to have overlooked the important fact that the act of 1884 had specially conferred upon parents (in default of minor children and widow) a right of action for the negligent killing of their children, and to have dealt with the case upon the basis of the law as it stood before the passage of that act, and of the decisions of this court, which had been subsequently rendered. It seems clear enough now, however, that it would have been more in harmony with the jurisprudence of the court, taken as a whole, to have based the decision upon the provision in the act of 1S84, which was thus overlooked. The case referred to was decided in January, 1908, and rehearing was refused in March. In May, following, the General Assembly convened, and during its session passed the act No. 120 of 1908, which, as we have seen (supra), is entitled “An act to amend and reenact Act 71 of the session of 1884, entitled ‘An act to amend and re-enact article 2315 of the Revised Civil Code of 1870,’ ” and which substitutes “children” for “minor children,” provides that, should the deceased leave a widow, together with minor children, the right of action shall accrue to both the widow and minor children; “that the right of action shall accrue to the major children only in those cases where there is no widow or minor child;” that, in default of child, or widow, or parent, the right of action of the decedent shall survive in favor of the brothers and sisters, or either of them; and, that “the survivors above mentioned may also recover the damages sustained by them by the death of the parent, or child, or husband or wife, or brothers or sisters, as the -- may be.”

Recurring, then, to what was said by the court in Hubgh v. N. O. & Car. R. Co. in 1851 (“it appears to us, therefore, that, without a special statute authorizing such actions, they cannot be maintained”), we find that, as to the minor children, the wife, and the parents, one such special statute was adopted in 1855 and another in 1884; and recurring to *999the view expressed in Bourg v. Brownell-Drews Lumber Co., in January, 1908 (“thus, it would hardly be contended that A. could recover for any mental disturbances that he might suffer by reason of the maiming, the libeling, the assaulting, or the death of his cousin, his uncle, or his brother”), we find that, in July of the same year, the Governor approved the act No. 120 of 1908, which places brothers and sisters in the category of those in whose favor the right of action of one who loses his life through the fault of another survives, and to whom, also, is given a separate right of action for the injury resulting by reason of the same fault. Plaintiffs are therefore before the court by virtue of a special statute, authorizing them to recover the damages which their brother might have recovered at the moment of his death, as, also, the damages which they sustained by reason of his death, through the fault of the defendant, and, as we have seen, the damages recoverable in such cases 'include those resulting from moral as well as material injury, from injury to feelings as well as to purse. It was said, in the case last above referred to:

> “As such damages are not in their nature susceptible of exact measurement, it ought to be sufficient for their recovery that the actual relations between the plaintiff in such suit and the deceased on account of whose death the suit is brought were the normal ones which should exist between parent and child or husband and wife.”

So, we say in this case, it ought to be sufficient to entitle plaintiffs to recover for the suffering and loss, other than any pecuniary or material loss, to which they have been subjected by reason of the death of their brother, that the relations between him and them were the normal ones of brotherly affection; and that has been shown. It would serve no useful purpose to further lengthen this opinion by attempting to review the jurisprudence of the common-law states upon the question at issue. As a general rule, it may be said that the courts, interpreting the statutes of those states, and adhering to the doctrine established in the English case of Blake v. Midland Railway Co., 18 Q. B. 93, award damages only by way of compensation for pecuniary loss resulting from a death. There are, however, many exceptions whereby the surviving wife, or husband, or relative, to whom a right of action is given, is allowed to recover over and beyond any actual pecuniary loss sustained. Judge Thompson says upon that subject:

> “In some states, notably Kentucky, California, and Texas, the allowance of exemplary damages is expressly authorized by statute. In' Missouri, the statute provides that, ‘in every such action the jury may give such damages as they may- deem fair and just, * * * *having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default.’*Under this statute, the amount of damages is not limited to the actual pecuniary loss suffered in the death of the child; the court says that ‘such a construction would make the words (of the statute, italicized) wholly meaningless and inoperative.’ The Alabama statute allows a recovery ‘of such damages as the jury may assess,’ and the courts of that state construe this statute to authorize exemplary damages. * * * ” Thompson on Negligence, vol. 6, § 7080.

> & ❖ *'•£*s*c # >Je #

> ‘iln states where the statute allows the jury to award such damages as they may ‘think proportionate to the injury,’ the jury is not confined to the pecuniary loss, but may allow for the loss resulting from *grief or mental suffering*of the beneficiaries.” Id. 7082.

Mr. Sutherland, among other things, says:

> “On many questions respecting the recovery of damages for mental suffering or nervous shock, the law is in a very unsatisfactory state; it being impossible to harmonize the decisions or formulate any rule based on them. Many of the objections to recovery are devoid of real weight, assuming that the suffering or shock was the natural and proximate result of the wrong done. * * * Occasionally, a court asserts that the .recognition of the right of recovery in cases of this class would crowd calendars, and open the door to fraud. It may not be asserted with much confidence that such results have been experienced in jurisdictions in which the right is recognized. But, if the first result should follow, it may be pertinent to inquire what are the reasons for establishing and maintaining the judicial establishments. * * *

> “Mental suffering is an element of damage in many classes of actions, and it has not been *1001seriously contended that the common sense of jurors has erred grievously, if at all, in awarding compensation for it. The courts are almost agreed in denying redress for sympathetic mental suffering. Thus, a father cannot recover for grief and anxiety on account of mere physical injuries sustained by a child, nor because of solicitude for his and his child’s safety. * * * As long ago as 1808, Lord Ellenborough charged a jury, in an action brought by a husband to recover for the loss of the comfort, fellowship, and assistance of his wife, and the grief, vexation, and anguish of mind he had undergone by reason of' her injuries and subsequent death,, that they could only take into consideration the bruises which he, himself, had sustained, and the loss of his wife’s society and the distress of mind he had suffered on her account, from the time of the accident to her dissolution.”

The author then refers to a ease where a husband brought suit for damages for mental suffering resulting from surgical malpractice in the performance of an operation on his wife, in which Ohristiancy, X, among other things, said:

> “The chief cause of plaintiff’s distress of mind must have been the death of his wife, in which the injury resulted, rather than the pain she suffered during the operation and prior to her death; and it would be a' very difficult thing for a jury to apportion his mental agony or to determine how much of it was attributable to one of those, causes and how much to the others. If the plaintiff has a right of action on account of his wife’s suffering, why may no't another of her relatives, who may have sustained as much mental agony on the same account as the husband?” Sutherland on Damages, (3d Ed.) vol. 1, § 96.

The unsatisfactory state of the law, to which the author refers, is demonstrated by the authorities collected in the notes to the cases of Eichorn v. N. O. & Car. R. Co., 114 La. 712, 38 South. 526, 3 Am. & Eng. Ann. Cas. 103; Rhoads v. Chicago & A. R. Co., 227 Ill. 328, 81 N. E. 371, 11 L. R. A. (N. S.) 623, 10 Am. & Eng. Ann. Cas. 111.

The difficulty which the courts have encountered seems to have originated in the common-law rule that an action would not lie in a civil court to. recover damages for the. death of a free human being, though the common law afforded a remedy, by the “appeal,” which, as Blackstone informs us:

> “Was an accusation by a private subject against another for some heinous crime, demanding punishment on account of the particular injury suffered rather than for the offense against the public? It had its origin in those times when a private 'pecuniary satisfaction, called *weregild,*was constantly paid to the party injured, or his relations, to expiate enormous offenses.” Blackstone, vol. 4, p. 383.

And then there came what may be called the question of convenience. As Slidell, G. X, says, in the ease of Black v. Ry. Co., supra, referring to the decision of the English court in the leading case of Blake v. Railway Co.:

> “The impossibility of apportioning the damages among the parties entitled to receive them, if they were based upon the mental suffering of the parties, was greatly relied upon by the court as indicating the intention of the Legislature to confine the damages to the actual pecuniary loss of the sufferers.”

In other words, it is not so much that the courts have not felt that mental suffering, as well as physical suffering and pecuniary loss, is an element of damage for which the sufferer should be compensated, but the idea was that, if every one who might be made to suffer mentally, by reason of an injury to, or the death of, another, were to be allowed to recover for such suffering, the courts would be crowded with the relatives, direct and collateral, of the party injured or killed, and, perhaps, by the friends also, and that, as between the wife and children, and grandparents, and uncles and aunts and cousins, near and remote, it would be impossible to apportion any amount for which the wrongdoer could reasonably be condemned. Those difficulties do not, however, appear to us to stand in the way of a recovery, in this state, in a case such as we are now considering. The law, in terms, declares that certain specified persons, the one in default of the other, may recover, from him by whose fault it happened, the damages, which they may have sustained by reason of the death of a free human being. The fact that the bene*1003ficiaries specified are not given a concurrent right, but that major children can recover only in default of minors and widow, that parents can recover only in default of the two classes mentioned, that brothers and sisters can recover only in default of all the others, and that no one can recover to whom the statute has not given the right, limits the number of persons by whom such right may be exercised within reasonable bounds and makes it an easy matter to apportion the amounts to be awarded, if it can be said that there is an apportionment when each sufferer recovers upon the merits of his, or her, own claim. As to the assessment of the damages, we have already noted that, in cases of this kind, our law vests “much discretion” in the judge or jury. Civ. Code, art. 1934, par. 3; Caspar v. Prosdame, 48 La. Ann. 40, 14 South. 317; Taylor v. Ellington, 46 La. Ann. 375, 15 South. 499. In the exercise of that discretion we fix the amount to which plaintiffs are entitled, on the cause of action which survived the decedent, in their favor and by reason of his physical suffering at $1,000.

As to the amount which should be allowed for the mental suffering inflicted on plaintiffs by reason of the untimely death of the brother, though Mr. Justice LAND and the writer are of opinion that something more substantial might reasonably be allowed, the Chief Justice thinks that the damages should be nominal, and, as there are but three members of the court to concur in the decree, we have concluded to fix the amount to be allowed on this count at $50, making a total of $1,050. It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by reducing the principal amount for which the defendant is condemned from $5,000 to $1,050, and, as thus amended, affirmed.

It is further decreed that plaintiffs pay the costs of the appeal.

SOMMBRVILLE, J., takes no part herein. See dissenting opinion of PROVOSTX, J., 55 South. 653.