P.M. of said day, and to treat said plaintiffs in a respectful manner, and carry them to the proper and usual landing place at Mauston, to wit, the depot of said defendant at said place. That the said defendant wholly disregarded its said duty in the premises, and its contract and obligations to and with said plaintiffs, and, when about three miles east of the depot of the defendant at the said village of Mauston, informed said plaintiffs, by its proper agents and servants, that they had arrived at Mauston, aforesaid, and stopped the train for them to get off. That said plaintiffs, supposing and believing they had arrived at Mauston, as they were informed they had by the defendant's servants, as aforesaid, alighted from the defendant's train, and the said train passed on. That after said train had left them they perceived that they were not at the Mauston depot, and did not know where they were. That it was quite dark. That they supposed and believed that they were near the Mauston depot, and proceeded up the track in the direction of Mauston, as they supposed, expecting in a few moments to arrive at the Mauston depot. That, instead of being near the Mauston depot, they found afterwards they were not, but, on the contrary, had been carelessly and negligently put off the defendant's train by its servants about three miles east of said depot, apparently in the country; and the plaintiffs knew not otherwise, but supposed and believed that they had got to walk west on the track of the defendant until they came to some station. After walking on the track of the defendant about three miles they came to the said village of Mauston; the said plaintiff Mary A. Brown being, by reason of said long walk, very tired and exhausted, sick and prostrated, passing the balance of the night in a very restless, uneasy, and feverish condition. That previous to the said second day of October, 1879, and leaving Kilbourn City, as aforesaid, the said plaintiff Mary A. Brown had been a healthy, well, and robust person, and at the time of taking said walk was pregnant with child. That in consequence of being carelessly and negligently put off the cars of the defendant, as aforesaid, and her said walk, she became sick, ailing, and very much enfeebled, and continued getting worse, although using the best of care and medical attendance, until about December 20, 1879, when she lost her child. That for a long time the said plaintiff Mary A. Brown was seriously and dangerously ill, so much so that her life was greatly endangered and despaired of, and she suffered, had suffered, continued to suffer, great pain in body and mind; and the said plaintiff Orange Brown, her husband, suffered personally great anxiety of mind, and was put to great expense and trouble in care, nursing, help, and medical attendance and medicines."

The defendant's answer was a general denial only. In the court below the plaintiffs recovered, among other things, for the alleged injury to Mrs. Brown.

Upon this appeal the learned counsel for the railway company

insist that the damages claimed for the sickness of the wife, and for her medical attendance and care, are too remote to constitute a cause of action, and that it was error on the part of the court below not to take that part of the case from the jury.

The first position taken by the learned counsel for the appellant is that the cause of action set out in the plaintiffs' complaint is for a breach of contract, and not an action in tort. Upon this point we cannot agree with the appellant. We think the gravamen of the action is the negligence and carelessness of the appellant's agents and employees in directing the plaintiffs to leave the train before they had arrived at the end of their journey. They did not leave at a place short of their destination knowing that fact, but through the neglect of the appellant's employees they were induced to leave the train short of their journey's end, supposing that they had reached it. It is true, the plaintiffs in their complaint state that they paid their fare and went on board the train as passengers, to be carried from one point to another upon the appellant's road, and that by reason of such payment and entry upon that train it became the duty of the appellant to carry them from the point of starting to their destination. These facts are, perhaps, sufficient to constitute a contract on the part of the appellant to safely carry them to their destination. Still, it is necessary in all actions against a carrier of passengers to state facts which show the right of the party to be carried before he can complain of any breach of duty on the part of the carrier in not conveying them safely, or in not carrying them to their destination. The complaint in this case is not so much that the plaintiffs were not carried to their destination, but that on the way the appellant's employees carelessly and negligently induced them to quit the train before they arrived at their destination, and that in consequence of such wrong on the part of the appellants they suffered damage. It is the negligence in putting the plaintiffs off the train before the journey was completed which is complained of, and not a breach of the contract for not carrying them to the end of their journey.

We seen no reason for distinguishing this case from the class of cases which hold a railway company liable in tort for an injury done to a passenger, while travelling on a train, caused by collision, the breaking down of a bridge, or from any defect in the road or cars. All these matters are a breach of the contract to carry the passenger safely, yet the carrier is held liable, in an action of tort, for any injury sustained, based upon the allegation that it was incurred through the carelessness and negligence of the company. All the cases hold that the person injured through the negligence or carelessness of the carrier may proceed either upon contract, alleging the careless or negligent acts of the defendant as a breach of the contract, or he may proceed in tort, making the carelessness and negligence of the company the ground of his right of recovery;

and if he proceed for the tort it becomes necessary on the part of the plaintiff to show that he stands in the relation of a passenger of the carrier, in order to show his right to recover damages for the negligence of the carrier in not discharging his duty in carrying him safely. Where the relation of passenger and carrier exists, the law fixes the duty of the carrier towards the passenger, and any violation of that duty is a wrong; and if injury occurs to the passenger from such wrong, the carrier is responsible and must make good the damage resulting therefrom. Wood v. Ry. Co., 32 Wis. 398; Walsh v. Ry. Co., 42 Wis. 23; Crocker v. Ry. Co., 36 Wis. 657-675, and cases cited. In this case we deem it material to determine whether the action is an action for a tort, or an action for a breach of the contract to carry the plaintifls to their destination, because we think the rules of damages in the two actions are essentially different. We hold that the action in this case is based upon the tort of the defendant in negligently and carelessly directing the plaintiffs to leave the cars before they reached their destination. The plaintiffs claim, and the evidence shows, that they and their child, about seven years old, were directed to leave the cars, by the brakeman, at a place some three miles east of Mauston, being told at the time that it was Mauston, their place of destination. When they left the cars it was night; it was cloudy, and had rained the day before; that there was a freight train standing on a side track where they were put off the train; no platform, and no lights visible except those on the freight train; that plaintiffs soon ascertained that they were not at Mauston, and did not know where they were. They did not see the station-house, although there was one, but it was hid from their view by the freight train standing on the side track. They supposed they were at a place two miles east, where the train sometimes stopped, but where there was no stationhouse. They started west on the track towards Mauston, expecting to find a house where they might stop, but did not find one until they came to the bridge, about a mile east of Mauston, and then they thought it easier to go on to Mauston than seek shelter at the house, which was a considerable distance from the track. They went on to Mauston and arrived there late at night, Mrs. Brown quite exhausted from the walk. She was pregnant at the time. She had severe pains during the night, and the pains continued from time to time, and after a few days she commenced flowing. The pains and flowing continued until some time in December, when a miscarriage took place, after which inflammation set in, and for some time she was so sick that she was in imminent danger of dying. The plaintiffs claim that the miscarriage and subsequent sickness were all caused by the walk Mrs. Brown was compelled to take to get from the place where they were left by the train to Mauston.

The important question in the case is whether the appellant is liable for the injury to Mrs. Brown, admitting that it was caused

by her walk to Mauston. Whether the sickness of Mrs. Brown was caused by the walk to Mauston was an issue in the case, and the jury have found upon the evidence that it was caused by the walk. There is certainly some evidence to sustain this finding of the jury, and their finding is, therefore, conclusive upon this point. Admitting that the walk caused the miscarriage and sickness of the plaintiff Mrs. Brown, it is insisted by the learned counsel for the appellant that the appellant is not liable for such injury; that it is too remote to be the subject of an action; that the negligence and carelessness of the defendant's employees in putting the plaintiffs off the cars at the place they did was not the proximate cause of the miscarriage and sickness, and for that reason the appellant company is not liable therefor.

To sustain this position of the learned counsel for the appellant reliance is placed upon the case of Walsh v. Ry. Co., 42 Wis. 23, and it is insisted that there can be no real distinction made between that case and this. Upon a careful examination of that case it will be seen, we think, the court did distinguish between an action which was purely an action for a breach of contract and one in tort. In that case the learned circuit judge charged the jury as follows: "If you find that the failure to return to Madison on the day in question, at the time agreed upon in the contract, was caused directly by orders from the headquarters and principal manager of the railway company, made with the full knowledge that the plaintiff and the other excursionists were ready and waiting to be carried home according to the arrangement made therefor, and made in wilful disregard of the rights of the plaintiff and the other excursionists, subordinating their rights to the convenience of the company, when they had the means at hand readily to have fulfilled their duty; in short, that the conduct of the company was wilful and oppressive,then you may give full compensatory, though not punitive, damages, embracing such loss of time, such injury to health, such annoyance and vexation of mind, and such mental distress and sense of wrong as you find was the immediate result of the misconduct, and must necessarily and reasonably have been expected to arise therefrom to the plaintiffs as one of the excursionists." This instruction was excepted to, and this court held the instruction erroneous, and reversed the judgment for that cause.

The present chief justice, who wrote the opinion in the case, takes special pains to show that the action was based solely upon a breach of contract, and was in no sense an action of tort, and he expressly declares that the rule of damages is not the same where the action is for a breach of contract as far for a tort. Upon this point he uses the following language: "It will be seen that the circuit court was requested to charge that the plaintiff was only entitled to recover such damages as naturally and fairly resulted from the breach of contract, but could not recover damages for the disappointment

of mind, sense of wrong, or injury to his feelings by reason of such breach. This rule the learned circuit judge disaffirmed, holding that if the conduct of the company was wilful and oppressive, then such injury to health, annoyance, and vexation of mind, mental distress, and sense of wrong as were the immediate result of the misconduct, and must reasonably have been expected to arise therefrom to the plaintiff, were proper matters to be considered in giving compensatory damages. This was confounding the important distinction, so far as the rule of damages is concerned, between an action in tort and one upon contract. It was, in fact, applying to this case the rule which was laid down in Crocker v. Ry. Co., 36 Wis. 657, in an action for a tort committed by an agent of the company. In the case of wrongs the jury are permitted to consider injury to feelings and many other matters which have no place in questions of damages for breach of contract."

The chief justice then quotes at large from the case of Hobbs v. Ry. Co., 10 Law Rep. (Q. B.) 111, with approval. In that case the English court of appeals held that when the railway company had neglected or refused to carry the plaintiffs to their destination, and they were compelled to get out at a station about five miles from it, late at night, and being unable to get a conveyance or accommodation at an inn they walked home a distance of five miles in the rain, and the wife caught cold and was sick as a consequence of the walk and exposure, they could not recover for the injury to the wife. It would seem, from the opinions given by the learned judges in the Hobb Case, that they treated the action as an action upon contract and not an action for a tort. All the judges speak of it as an action to recover for the breach of contract to carry the plaintiffs to their destination.

The rule as to what damages may be recovered in actions for breach of contract is laid down by this court in the case of Candee v. W. U. Tel. Co., 34 Wis. 479, cited from Hadley v. Baxendale, 9 Exch. 341, and approved. It is as follows: "Where two parties have made a contract, which one of them has broken, the damages which the other ought to receive in respect of such breach of contract should be either such as may fairly and substantially be considered as arising naturally-that is, according to the usual course of things-from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it."

The latter part of this rule, as above quoted, would seem to cover all cases of breach of contract; for it must be presumed that the parties would reasonably be supposed to have contemplated that the party injured by the breach of the contract would sustain such damages as would fairly and substantially, in the usual course of things, result from such breach. And so it is often said that, in

3 A. & E. R. Cas.-29