The third, it is said, ignores the question of plaintiff's knowledge of the defect in the road which occasioned his injury. There was no evidence that he was aware of it. He testified that he was not, and no one testified to having ever seen him in a position to observe it before the accident. It was a hidden defect, not observable from the sidewalk, which was as near as plaintiff was shown to have been to that place in the road before he was hurt. The sixth is a full and fair statement of the facts, which, if found, entitled plaintiff to a verdict. The ninth of defendant's refused instructions related to the defects in the road, which were not the proximate cause of the injury. The tenth was properly refused because there was no evidence to support it, as to the specific defect which occasioned the injury, and with regard to the other obstructions and defects, they were not the proximate cause of the injury. eleventh asserted that if plaintiff was informed by the person who employed him to work on defendant's yard, that it was very dangerous, and plaintiff was injured on one of the tracks in the yard, he could not recover. The warning did not call plaintiff's attention to any specific danger, and amounted to no more than a general warning of what every one at all acquainted with the business knows. The substance of the twelfth was embraced in the 3rd, 4th, 5th, 6th, and 7th given for defendant. The The seventh for plaintiff authorized the jury to assess such damages as they should believe from the evidence plaintiff had sustained, taking into consideration the pain and anguish, mental and physical, the loss of his leg and other injuries sustained, not to exceed $20,000. He was nineteen years old when the accident occurred. He first sued by his next friend, but on attaining his majority, filed an amended petition in his own name, and the counsel for defendant contends that under this instruction the jury was authorized to compensate him for the loss of two years' time, for which his father, if any one, had the right to recover. There was no evidence as to the value of his services for those two years. It is stated in the brief that there was proof that he received $45 per month, but we find no such, nor any evidence on that question in the abstract, nor any evidence whatever upon which the jury could have allowed any compensation for the loss of that time. Defendant contends that the instruction is so vague as to have authorized the jury to assess the damages as their caprice, prejudice or passion might have prompted. It would be difficult, if not impossible, to frame an instruction in such a case which would determine exactly the amount of damages the plaintiff should recover. For instance, what language would inform the jury exactly how to estimate, in money, the plaintiff's pain and anguish? And this they had a right to consider in making their verdict. It is contended by the counsel for defendant that "mental pain and anguish are not proper elements of the damages," no wanton ATTORNEY AT LAW PORTER V. HANNIBAL & ST. JOSEPH R. R. ness or malice being charged, citing GreenHAVEN FLOO tone. Smith, 2 Car. & Payne, 292; Blake v. Midhne in! Cor 10 E. L. & Eq., 437. Professor Greenleaf so states the law and refers to the above cases, and that of Cumming v. Inhabitants of Williamsburg, 1 Cush., 451. These cases do not sustain the learned author. Flemington v. Smith was an action by a father for an injury to his son, and the court held that the damages should be such a sum as would compensate plaintiff for his loss in being deprived of the assistance of his son, and the expenses he was put to by his being out of his place, also some small compensation for his mother going to visit him, as she did, but not for injury to parental feelings. This does not sustain the doctrine, that in a suit by the party directly injured (the son), he shall not recover for his mental suffering. Blake v. Midland Ry. Co., 10 Eng. L. & Eq., 437, was an action by a widow under chapter 93 of 9 and 10 Vic. for the death of her husband, which was caused by the negligence of defendant. Coleridge. J., held that no damages should be allowed for the mental suffering of the plaintiff, observing that "the Legislature would not have thrown upon the jury such great difficulty in calculating the solatium to the different members of the family without some rule for their guidance. When an action is brought by an individual for a personal wrong, the jury in assessing the damages can, with little difficulty, award him a solatium for his mental suffering along with an indemnity for his pecuniary loss." We have italized that portion of the above quotation which shows that the learned judge clearly distinguished between such an action, under special statutes, and one by the party himself, who is directly injured. His whole opinion, as will be seen by a careful perusal, is based upon the difficulty indicated in the first paragraph of the above quotation. By a statute of Massachusetts it was provided that, if any person should receive any injury in his person, by reason of any defect or want of repair in a road, he might recover of the party obliged by law to repair the road, the amount of damages sustained by such injury. Cumming v. Inhabitants of Williamsburg, 1 Cush., 451, was an action by plaintiff under that statute, and the court, Metcalf, J,, distinctly held that, "though that bodily injury may have been very small, yet if it was a ground of action within the statute, and caused mental suffering to the plaintiff, that suffering was a part of the injury for which he was entitled to damages." Fay v. Parker, 53 N. H., 359, cited by defendant's counsel, has not a word on the subject, but is in regard to exemplary or vindictive damages. In actions under statutes giving a right of action to husband, or wife, or parents, brothers and sisters, for the death of a husband, or wife, or parent, or son, or brother, or sister, it seems well settled that the damages provided for and recoverable under them are only such as are pecuniary and actual, or fixed in amount by the statutes, and not exemplary and not on account of the mental suffering of the deceased or for the sorrow, grief or suffering of the surviving relatives who may be entitled to recover. Field on Damages, 498. Instructions substantially the same as the one under consideration have been expressly approved by this court. Whalen v. St. L., K. C. & N. Ry. Co., 60 Mo., 323. The authorities cited by Professor Greenleaf do not support him, but clearly recognize the law as heretofore declared by this court, and, therefore, with the highest regard for the distinguished author, whose opinion on any legal question is an authority of great weight, we cannot, in this instance, adopt the rule to which he has given the sanction of his name. In fact, we are inclined to believe from the utter contradiction it meets in the authority relied upon by him that the statement of the law, as it appears in his work, is the result of a typographical error. The Circuit Court, if the verdict is manifestly prompted by passion and prejudice, or the damages are palpably excessive, may and should set aside the verdict. There have been three trials of this cause, and three verdicts for plaintiff, the first for $10,000, the second $12,000, and the third for $10,000, and we could, with no propriety say, under these circumstances, that the damages are excessive. The judgment is affirmed. Where the company fails to discover a defect for want of proper inspection, it is liable for injuries to its employees. Toledo, etc., R. R. Co. v. Conroy, 68 Ill., 560; O'Donnell v. Allegheny Valley R. R. Co., 59 Pa. St., 239; Snow v. Housatonic R. R. Co., 8 Allen, 441. An employee has the right to rely upon the presumption that the company has constructed and maintained its railroad in an ordinarily safe manner. Snow v. H. R. R. Co., 8 Allen, 441; Seaver v. Boston & M. R. R. Co., 14 Gray, 466; Gibson v. Pacific R. R. Co., 46 Mo., 163; Brothers v. Cartter, 52 Mo., 372; Devitt v. Pacific R. R. Co., 50 Mo., 302; Porter v. H. & St. J. R. R. Co., 60 Mo., 160; Dale v. The St. L., K. C. & N. R. Co., 63 Mo., 459. It is the company's duty to provide a safe and properly constructed railroad, and to use all reasonable care and diligence to keep it in a safe condition. Cayzer v. Taylor, 10 Gray, 274; Castle v. Duryea, 32 Baldwin, 480; Morgan v. Cox, 22 Mo., 373; Ryan v. Fowler, 24 N. Y., 420; McDermott v. the P. R. R. Co., 30 Mo., 115; Gorman v. the P. R. R. Co., 26 Mo., 441; Gibson v. the P. R. R. Co., 46 Mo., 163; Kennedy v. N. M. R. R. Co., 36 Mo., 360; Porter v. H. & St. J. R. R. Co., 60 Mo., 160; Lewis, admr. v. St. L. & I. M. R. R. Co., 59 Mo., 504; Keegan v. Kavanaugh, &c., 62 Mo., 232; Whalen v. Centenary Church, 62 Mo., 328; Dale v. the St. L., K. C. & N. Ry. Co., 63 Mo., 459. If the agents of the company, whose duty it is to keep its track in repair know of its defects, the knowledge of such agents is the knowledge of the company. Harper v. St. L. R. R. Co., 47 Mo., 567; Brothers v. Cartter, 52 Mo., 372; Lewis v. St. L. & I. M. R. R. Co., 59 Mo., 507; Stoddard v. St. Louis, etc. R. R. Co., 65 Mo., 514; Kansas Pacific R. R. Co. v. Little, 19 Kan., 267; Walker v. Bolling, 22 Ala., 294; Chapman v. Erie R. R. Co., 55 N. Y., 579; Malone v. Hathaway, 64 N. Y., 5; Lydon v. Manion, 3 Mo., app., 601. See Walker v. Boston, etc., R. R. Co., 1 Am. & Eng., R. Cas., 141; Holden v. Fitchburg R. R. Co., infra.; Lanning v. N. Y., etc., R. R. Co., 49 N. Y., 536; Huddleston v. Lowell Machine Shop, 106 Mass.. 286; Dale v. St. Louis, etc., R. R. Co., 63 Mo., 455; Conroy v. Vulcan Iron Works, 62 Mo., 35; Gibson v. Pacific R. R. Co., 46 Mo., 163; Porter 7. H. & St. J. R. R. Co., 60 Mo., 160; Dale v. St. Louis, etc., R. R. Co., 63 Mo., 459; Wyatt v. Citizens Railway Co., 55 Mo., 485; Whalen v. St. Louis, etc., R. R. Co., 60 Mo., 326; Smith v. Union R. R. Co., 61 Mo., 588; Conroy 7. Vulcan Iron Works, 62 Mo., 35; Dale v. St. Louis, etc., R. R. Co., 63 Mo., 455. WILLIAM CONE, Respondent, V. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD (81 New York Reports, 207.) Where a master furnishes defective machinery for use in the prosecution of his business, he is not excused by the negligence of a servant in using the machinery from liability to a co-servant for an injury which could not have happened had the machinery been suitable for the use to which it was applied. Where, therefore, the employee of a railroad corporation was injured by the sudden starting of a locomotive, caused by its being defective and out of repair, of which defects the corporation had notice, held, that it was no defence that the engineer could have so managed the engine as to have prevented the accident. (Submitted April 19, 1880; decided June 1, 1880.) Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of the plaintiff entered upon a verdict and affirming an order denying a motion for a new trial. (Reported below, 15 Hun., 172.) This action was brought to recover damages for injuries alleged to have been occasioned by defendant's negligence. The plaintiff was in the employment of the defendant as a car repairer. While engaged in examining a car, with a view to repairing it, which was standing on a side track of the defendant's at Richfield Springs, another car, which was also standing on the same track, a few feet distant from the car which the plaintiff was examining, and which was attached to an engine, took motion from the engine, and ran against him in such a manner that he was caught between the two cars and seriously injured. The evidence tended to show that the engine took motion in consequence of steam escaping into the cylinder through a leaky valve, and that the defect in the valve, also the fact that the engine was much out of repair, had been known for some time by the defendant's superintendent and master mechanic, but was not known by the plaintiff. There was also evidence tending to show that the defendant's engineer, who was in charge of the engine, left it standing on the track while the plaintiff was examining the car, that he was aware of the defect in the valve, and omitted to open the cylinder cocks upon the engine, which if it had been done would have prevented the engine from taking motion in consequence of the leakage of steam. Further facts appear in the opinion. Isaac S. Newton for appellant: As between master and servant defendant, in providing machinery, was obliged to use only reasonable care and diligence. (Laning v. R. R. Co., 40 N. Y., 521, 533; Gibson v. R. R. Co., 63 id., 449; Wharton on Negligence, § 213; Planck v. R. R. Co., 60 N. Y., 607; Hoffnagle v. R. R. Co., 55 id., 610; King v. R. R. Co., 9 Cush., 112; see, also, Pierce on American Railroad Law, 296; Redfield on the Law of Railways, 131, subd. 10; Wright v. R. R. Co., 25 N. Y., 562; Wood's Master and Servant, § 421; Piper v. R. R. Co., 56 N. Y., 630; R. R. Co., v. Webb, 12 Ohio St., 475; R. R. Co. v. Keary, 3 id., 202; Priestley v. Fowler, 3 Mees. & W., 1; 12 Ohio St., 475.) The negligence of defendant's engineer having been the primary, immediate and promoting cause of the injury, it was not liable. (Booth v. B. & A. R. R. Co., 73 N. Y., 38; Samson v. N. Y. & Harlem R. R. Co., 62 id., 251; Hayes v. Western Railroad Co., 57 Mass., 270, 272; Wright v. R. R. Co., 25 N. Y., 567, 570, 573; Hoffnagle v. N. Y. C. & H. R. R. R. Co., 55 id., 608, 612; Wood on Master and Servant, § 426; 15 Hun, 174.) Scott Lord, Jr., for respondent: The defendant was obliged, by law, to furnish for the use of its servants proper, suitable, safe and sufficient machinery, means and appliances, and keep them in a safe and suitable condition, or use due care to that end. (Corcoran v. Holbrook, 59 N. Y., 519; Laning v. N. Y. C. R. R., 49 id., 532; Ackerson v. Dennison, 117 Mass., 407; Ford v. Fitch. R. R., 110 id., 260.) This duty, to furnish a suitable and proper engine for the safety of the plaintiff and its other servants, was an imperative and an affirmative one, which the law imposed upon the defendant itself. (Ford v. Fitch. R. R., supra; Corcoran v. Holbrook, id.; Flike v. B. & A. R. R. Co., 53 N. Y., 533; Malone v. Hathaway, 64 id., 5; Siegel v. Shantz, 2 N. Y. Sup. Ct. [T. & C.], 353; Booth v. B. & A. R. R., 73 N. Y., 38.) If defendant's engineer was negligent, his negligence only contributed to produce the accident in conjunction with the negligence of the defendant, and the defendant was not exonerated. Booth v. B. & A. R. R., supra; Cayzer v. Taylor, 10 Gray, 274; Shearman & Redf. on Neg., $$ 9, 10.) DANFORTH, J.-As between the plaintiff and the defendant, it was the duty of the latter to furnish its employees for use in the prosecution of its business good and suitable machinery, and keep it in repair. (Wright v. N. Y. C. R. R. Co., 25 N. Y., 562; Laning v. N. Y. C. R. R. Co., 49 id., 521; Flike v. B. & A. R. R. Co., 53 id., 549; Corcoran v. Holbrook, 59 id., 519.) It was also |