as well as imprisonment, thereby adding something of material moment to the penalty prescribed by the statute. This was

error.

3. Nor can the words "at hard labor" be treated as mere surplusage. They have a distinct meaning, and qualify the judgment rendered. If they are stricken out, we have a different judgment from the one pronounced; and, if they stand as rendered, the judgment is unwarranted.

4. We cannot make the correction here, but we can remand the cause to the trial court for that purpose: State v. Marple, 15 Or. 205 (14 Pac. 521). The conviction being regular, the defendant is not entitled to a new trial, but he is entitled to a proper judgment upon the conviction had.

The judgment entered will therefore be reversed, and the cause remanded to the court below, with directions to pass such sentence as the law authorizes. REVERSED.

Decided 19 December, 1904.

MAYNARD v. OREGON RAILROAD CO.

78 Pac. 983, 68 L. R. A. 477.

CARRIERS-MENTAL SUFFERING AS AN ELEMENT OF DAMAGE.

1. In actions for damages resulting from injuries caused by negligence, mental suffering from the same cause that produced the injury is an element of damage; but mental distress caused by a realization of resulting physical inability to properly care for and educate those dependent on the person injured is not proper to be considered as an element of consequential damages.

CARRIERS EVIDENCE AS TO FAMILY OF INJURED PERSON.

2. In an action for personal injuries, evidence as to the number and ages of the members of plaintiff's family is not admissible.

PHOTOGRAPHS OF A RAILROAD WRECK AS EVIDENCE.*

3. In an action for injuries to a passenger, received in a collision of railroad trains, photographs of the scene of the wreck taken the next morning after the accident, and before the conditions have been materially changed, are admissible to show the force of the collision.

*NOTE. See the following annotated cases on the use of photographs as evidence: Dyson v. New York & N. Eng. R. Co. 14 Am. St. Rep. 82, 87; Kansas City, M. & B. R. Co. v. Smith, 24 Am. St. Rep. 753, 755; Beardslee v. Columbia Township, 68 Am. St. Rep. 883, 886; Baustian v. Young, 75 Am. St. Rep. 462, 468-479; Dederichs v. Salt Lake City R. Co. 35 L. R. A. 802-815; Livermore F. & Mach. Co. v. Union C. & Storage Co. 53 L. R. A. 482; Selleck v. City of Janesville, 47 L. R. A. 691, 76 Am. St. Rep. 892; State v. Miller, 43 Or. 326.

See, also, an article in 60 Cent. Law Jour. 406, Photographs as Evidence. REPORTER.

PLEADINGS AND PROOFS ALLEGING INJURIES.

4. In an action for personal injuries, plaintiff cannot recover for a mere aggravation of a previously received injury, without alleging such. aggravation in his complaint.

INSTRUCTION AS TO NEGLIGENCE NOT PLEADED.

5. Where the complaint in an action for injuries to a passenger alleged negligence in the operation and management by defendant of its passenger and freight trains, an instruction as to the duty of a carrier of passengers "in keeping its passenger trains and appliances in a safe condition" is

erroneous.

From Union: ROBERT EAKIN, Judge.

Statement by MR. JUSTICE WOLVERTON.

This is an action by H. Maynard for a personal injury alleged to have been caused by the negligence of the Oregon Railroad & Navigation Co., its agents and employees, in suffering and permitting a moving passenger train of cars, upon which plaintiff was being carried as a passenger, to come into collision with a freight train. Plaintiff secured a verdict and judgment in the circuit court, and defendant appeals. A judgment for plaintiff was reversed on a previous appeal. REVERSED.

For appellant there was a brief over the names of William W. Cotton, Thomas H. Crawford, and James G. Wilson, with an oral argument by Mr. Wilson.

For respondent there was a brief and an oral argument by Mr. Leroy Lomax.

MR. JUSTICE WOLVERTON delivered the opinion of the court. The first question which is brought to our notice arises from the admission of certain testimony, and the next from the refusal of the court to take from the jury certain other testimony on motion of the defendant. The plaintiff, a witness in his own behalf, testified, among other things, in substance, that, while riding on a passenger train of the defendant, in a small room in the front end of the first passenger coach back of the baggage car, and when getting on his feet, a collision occurred between said train and a freight train, whereby he was thrown against some hard substance and fell to the floor; that it seemed to him his whole body struck something; that in falling his leg was skinned, and his hip and back bruised; that the first thing he felt, that he could recall, was a sharp pain in the small of his back; that he felt numb and once in a while a little pain

in the back; that he has always suffered since that time, sometimes worse than others. Whereupon he was asked: "Now, tell the jury, Mr. Maynard, as near as you can, how you have suffered since that time-what, if any, pains have you had, and matters of that kind?" Which question he answered, over objection, as follows: "Well, I always had pains in my back and head, more or less, and my limbs have cramped and run down, weak— no strength any more." After this he told of his previous condition of health, his ability to work, and the services in which he had been employed, when he was asked: "Have you a family, Mr. Maynard?" Another objection was here interposed and overruled, and he answered: "I got a little girl, is all but what's growed up." The inquiry proceeded: "Q. How is that? A. My family is all growed up but one little girl. Q. How old is this little girl you speak of?" His answer was, over objection: "She is thirteen. Q. Is which? A. Thirteen years old. Q. Is she dependent upon you, Mr. Maynard, for her support?” Here the objection was sustained. Witness was then asked: "Mr. Maynard, what, if any, mental suffering or agony have you sustained or had since the injuries that you received down here?" And he was allowed, over objection, to continue: "Well, I suffered distress a good deal when I realize in my condition. I am not able to work, and it distresses me to think about my little girl, and how I am going to support her and educate her and raise her up. Those are the matters that distress me." Then followed a motion to strike out the whole of the answer last given, as immaterial, irrelevant, and not responsive to any issue in the case, and as calculated to unduly prejudice the minds of the jury against the defendant, which was denied. Based upon these premises, the defendant insists that the court erred (1) in permitting the plaintiff to testify that he had a little girl thirteen years old, because it is apparent that the only object plaintiff had in inquiring concerning her was to show that she was dependent upon him for support, which could not properly be considered as an element of damages in the case; and (2) in refusing to take the last answer of the witness from the consideration of the jury, because the distress or mental anguish plaintiff suf

fered on account of his own condition, in not being able to work and earn a livelihood, or on account of his little girl, in not being able to support and educate her, were also not proper elements of damages upon which to base a recovery against the defendant. We will discuss these alleged errors in their inverse order, as counsel have so discussed and presented them.

1. It is undoubtedly true that one suffering from injuries to his person, due to the negligence of another, may recover for mental distress and anguish resulting from the same cause: Cooper v. Mullins, 30 Ga. 146 (76 Am. Dec. 638); Hannibal & St. Jo. R. Co. v. Martin, 111 Ill. 219, 232; City of Chicago v. McLean, 35 Ill. App. 273; Ferguson v. Davis County, 57 Iowa, 601, 609 (10 N. W. 906); Kendall v. City of Albia, 73 Iowa, 241, 245 (34 N. W. 833); Kennon v. Gilmer, 131 U. S. 22, 26 (9 Sup. Ct. 696). Such mental distress or anguish, however, as is not the natural result of the accident, but is produced by the operation of the mind in the contemplation of the physical condition to which the injured party is reduced, or in contemplation of any extraneous suffering or inconvenience that such condition might entail, whether it respects the person himself, or others dependent upon him, is not regarded as matter proper to form the basis of consequential damages. The doctrine is enunciated in Indianapolis & St. L. R. Co. v. Stables, 62 Ill. 313, 320, in the following language: "It is the mind that either feels or takes cognizance of physical pain, and hence there is mental anguish or suffering inseparable from bodily injury, unless the mind is overpowered and consciousness is destroyed. The mental anguish which would not be proper to be considered is where it is not connected with the bodily injury, but was caused by some mental conception not arising from the physical injury." So, anguish of the mind, wholly sentimental, arising from the contemplation of a disfigurement of the person, cannot be considered for the purpose of swelling the damage. The reason for the rule is forcibly stated in Chicago, B. & Q. R. Co. v. Hines, 45 Ill. App. 299, as follows: "The law regards supposed injuries to sentimental feelings of this character as too remote and speculative to allow it as an element of damages in cases where no

malice exists." Of like character is Augusta & S. R. Co. v. Randall, 85 Ga. 297 (11 S. E. 706); Giffen v. City of Lewiston, 6 Idaho, 231 (55 Pac. 545); and Chicago, R. I. & P. R. Co. v. Caulfield, 63 Fed. 396 (11 C. C. A. 552).

The same principle was controlling in Planters' Oil Co. v. Mansell (Tex. Civ. App.), 43 S. W. 913, where the injured party was permitted by the trial court to show, over objection, that he was greatly annoyed and suffered mental anguish from the fact that the month's rent of six dollars on his house would soon be due, and that he had just that amount with which to pay it; the appellate court saying: "The mental anguish which the appellee experienced on account of the fact that his house rent would soon be due, which he would be unable to meet, and which (such is the implication) would result to the inconvenience or suffering of his family, does not naturally result from the injury." So it was also said in Linn v. Duquesne Borough, 204 Pa. 551 (54 Atl. 341, 93 Am. St. Rep. 800): "Mental suffering has not generally been recognized as an element of damages for which compensation can be allowed, unless it is directly connected with a physical injury, or is the direct and natural result of a wanton and intentional wrong. Where a claim is for mental suffering that grows out of or is connected with a physical injury, however slight, there is some basis for determining its genuineness and the extent to which it affects the claimant. But as the basis of an independent action, mental suffering presents no features by which a court or jury can determine either its existence or its extent, and claims founded on it have generally been regarded as too uncertain and speculative for consideration." In this case the instruction on the measure of damages permitted the jury to consider, in addition to the physical and mental suffering caused by the injury, and the permanent disability arising from it, the humiliation and regret that plaintiff might thereafter feel because of her inability to attend to her household duties, and to perform the services for her husband that she had been wont to perform, and there was a reversal on account of it. Again, in Atchison, T. & S. F. Co. v. Chance, 57 Kan. 40 (45 Pac. 61, 62), it was said, which lan