See Lehigh Iron Co. v. Rupp, 100 Pa. 95, 7 Am. & Eng. R. R. Cas. 25; Litchfield Coal Co. v. Taylor, 81 Ill. 590; St. Louis, I. M. & S. R. Co. v. Yocum, 34 Ark. 493; Acts 1875, p. 133. A suit by the father for such wrongful or negligent act bars all other actions, whether instituted by an administrator or other legal rep-by the trains of a railway, the recovery would resentative.

|

general provision (Id. 5223) regulating the sur- | upon the father for the loss of services prior to vival of actionable wrongs to the administrator the minor child's death, nor was it intended to or executor of the injured person? We are not deprive him of any right. Its object was to enwithout authority upon the question. The Eng- able him, through the personal representative, lish rule which is commonly followed by the to recover the value of the services of which he eourts of the States whose statutes embody the is deprived, just as he recovers for any other provisions of Lord Campbell's Act is that the pecuniary loss which he sustains by the death. right of action given by the latter Statute to But where the injury resulted in death, the the personal representative of one whose death father's right of recovery by the common law has been caused by the default of another is was limited to the interim between the disabcreated by the Statute, and is not a continua- ling injury to the child and its death. His tion of the right of action which the deceased right of recovery was restricted to the value of had in his lifetime, although the new right, it the minor's services and the cost of medical athas been ruled, arises only by preserving the tendance and nursing to the time of death. cause of action which was in the deceased. If The right fell with the life of the minor. This the deceased never had a cause of action none was upon the theory that no civil action would accrues to his representative or next of kin. lie for a right springing from the death of a The right which accrued to the deceased re- human being. The application of the rule to vives to his administrator by virtue of the for- a case like this has been ably contested and demer Statute (Mansf. Dig. § 5223); the newly nied (see opinion by Judge Dillon in Sullivan created right results from an accrual on the v. Union Pac. R. Co. 3 Dill. 334), but the quesdeath of the injured party. Both actions are tion is not an open one upon authority. Little prosecuted in the name of the personal repre- Rock & Ft. S. R. Co. v. Barker, 33 Ark 350; sentative where there is one, and may proceed Little Rock & Ft. S. R. Co. v. Townsend, pari passu without a recovery in the one hav- supra; Mobile L. Ins. Co. v. Brame, 95 U. S. ing the effect of barring a recovery in the other, 754 [24 L. ed. 580]; The Harrisburg, 119 U. S. because the suits are prosecuted in different 199 [30 L. ed. 358]; Cooley, Torts, § 262. rights and the damages are given upon different principles to compensate different injuries. One is for the loss sustained by the estate and for the suffering from the personal injury in the lifetime of the decedent, the recovery in which goes to the benefit of the decedent's creditors, if there are any; the other takes no account of the wrongs done to the decedent, but is for the pecuniary loss to the next of kin, occasioned by the death alone. The death is the end of the period of recovery in one case and the beginning in the other. In one case the administrator sues as legal representative of the estate, for what belonged to the deceased; in the other he acts as trustee for those upon whom the Act confers the right of recovery for the pecuniary loss inflicted upon them. Blake ▼. Midland R. Co. 18 Q. B. 93; Pym v. Great Northern R. Co. 2 Best & S. 759; Barnett v. Lucas, 6 Ir. Rep. C. L. 247; Needham v. Grand Trunk R. Co. 38 Vt. 294; Ansonia B. & C. Co. V. Babbitt, 74 N. Y. 395; Littlewood v. New York, 89 N. Y. 24; Vicksburg & M. R. Co. v. Phillips, 64 Miss. 693; Hulbert v. Topeka, 34 Fed. Rep. 510; Fordyce v. McCants, supra.

The statutes under which the two actions are brought do not therefore cover the same ground; there is no repugnancy between them, and the latter does not impair the right conferred by the former. Needham v. Grand Trunk R. Co. supra; Com. v. Metropolitan R. Co. 107 Mass. 236.

We are aware that the cases are not barmonious to this effect. The conflicting arrays are marshaled in an elaborate article on the subject in 37 Am. Law Reg. pp. 385, 513. But the position assumed above is, as we conceive, sustained by principle and the weight of authority. The same reasons which prevent the right given by the Statute to the next of kin from being exclusive of that which accrued to the decedent and survived to his administrator preserve the right of the father to maintain his common-law action against the railway for the deprivation of his minor child's services.

The Statute confers no right of recovery

It follows from these views that the court erred in dismissing the action prosecuted by the administrator for the benefit of the estate; and also in permitting the plaintiff in his suit as parent to recover the value of his minor son's services after the latter's death. Damages accruing from that cause could be recovered only in the suit by the administrator, prosecuted for the benefit of the father as next of kin. In that suit the verdict was for the railway company and we are asked to reverse it upon the ground that the court's charge to the jury is erroneous.

While the plaintiff's intestate, who was a youth eighteen years old and of limited experience in railway matters, was in the discharge of his duty in uncoupling the cars of one of the defendant's trains in its yard at Knoble where he was employed, his foot caught in a space between the guard and main rails of the track, and he was injured by the moving train. The testimony was conflicting upon the question whether a block in the space where the boy's foot was caught could be used so as to lessen the hazard of the employé without enhancing the danger of derailing the trains.

The question for the jury's consideration was not whether the railway company was guilty of negligence in failing to block the space between the main and guard rails, because even if the failure to do that could upon the evidence adduced be found to constitute negligence (as to which see Chicago, R. 1. & P. R. Co. v. Lonergan, 118 Ill. 45, 6 West. Rep. 59; Rush v. Missouri Pac. R. Co. 36 Kan. 129, 28 Am. & Eng. R. R. Cas. 488 and note; Mayes v. Chicago R. I. & P. R. Co. 63 Iowa, 562; Huhn v. Missouri Pac. R. Co. 10 West. Rep. 405, 92 Mo. 440, 31 Am. & Eng. R. R. Cas. 221), the proof shows that the deceased continued in the service after he knew, or, what is the same thing, had full opportunity to know, that the rails were unblocked. Little Rock, M. R. & T. R. Co. v. Leverett, 48 Ark. 333.

But service about the unblocked rails was attended with danger, and the knowledge of the

fact that the rails were unblocked did not necessarily imply knowledge of the attendant danger. Knowledge of the danger was itself a question of fact, and if the jury believed that the deceased, by reason of his youth and inexperience, did not know of or appreciate the danger incident to service about the unblocked rails, and that the Company had exposed him to the danger without warning him of it, they should have found that the risk was not one he had assumed by entering the service. Little Rock, M. R. & T. R. Co. v. Leverett, 48 Ark. 333; Fones v. Phillips, 39 Ark. 17; Bauer v. St. Louis, I. M. & S. R. Co. 46 Ark. 396; Jones v. Florence Min. Co. 66 Wis. 268.

and do not in that event tend to lighten the labors of the jury; and when they are accurately and fairly framed on both sides and involve no contradictions, the issues are presented in disconnected propositions of law which the jury will find more difficult to comprehend than in a charge presenting all the issues on a single phase of the case together in close contrast, and presenting the whole law of the case as emanating from the court without apparent instigation from either side. What can be a greater paradox in the administration of justice or more confounding to a jury than for a court to say to them, as is sometimes done, "For the plaintiff, the court declares the law to be thus; for the defendant, so, and on its own motion as follows," as though there were three sides to a single legal proposition between which the jury are at liberty to choose?

It is the duty of counsel to present their prayers for instructions in order to aid the court and to show their position in the case on appeal, but the better rule for the court would be to treat the request only as counsel's sugges tions of what they desire the court to call the jury's attention to, and to embody no more than the substance of them in the charge.

It is useless to follow the charge on these points. The duty of the master to instruct the young and inexperienced servant so as to enable him to appreciate the danger attending the employment was submitted to the jury in an instruction given on behalf of the plaintiff, while the charge given at the instance of the defendant submitted the case as though there were no question of inexperience in the servant presented by the evidence. That was at least misleading and its tendency was to confuse the jury. But there was positive error in the charge in saying to the jury, in effect, that the intestate's knowledge of the fact that the rails were unblocked was knowledge of the attendant danger. Whether he had knowledge of or appreciated the danger or ought to have done so, was a question for the jury to determine upon the facts and circumstances shedding light upon the question. The charge is made up wholly of requests for instructions from the parties, and the two theories of the case presented by them are not so consistent and harmonious as to render it an easy task for the jury to determine where their duty lay. The fault is inherent in the practice of giving in charge to the jury the requests for instructions prepared by counsel. They are not uncommonly framed with a view to giving the great-ther proceedings. est advantage to the side which presents them,

The records of this court bear abundant testimony of the success of this practice at the hands of the learned and usually careful and painstaking judge who tried this cause. The practice of making up the charge from the requests for instructions prepared by counsel leads to the constantly recurring argument in this court that the charge to the jury is inconsistent and misleading and has resulted in the remanding of many causes, and perhaps in the miscarriage of justice in many others by the indulgence of the presumption that the jury was able to reconcile the apparent inconsistencies or penetrate the obscurities of the charge. For the errors indicated each of the judgments will be reversed, and the causes remanded for fur

CONNECTICUT SUPREME COURT OF ERRORS.
Dwight PIERCE

v.

Frank H. WHITTLESEY, Appl.

(58 Conn. 104.)

1. An agreement between an employer and employe that either shall forfeit two weeks' wages by terminating the employment without two weeks' notice thereof, is not unreasonable, and is not affected by Gen. Stat.,

§ 1748, imposing a penalty upon an employer who

withholds any part of the wages of any person because of any agreement requiring notice before leaving the employment. Two weeks' wages of the employé quitting without notice being forfeited are not due him, and therefore a refusal to pay them is not a withholding of any part of his wages.

NOTE.

Substantial breach of contract resulting in more than nominal damages to the other party must

2. Where one employed under a valid contract, providing that in case he leaves the service without giving two weeks' notice he shall forfeit two weeks' wages, leaves without giving the required notice and sues to recover the wages forfeited, such forfeiture may be relied on as a defense, although no special damage is alleged or shown.

(December 16, 1889.)

APPEAL by defendant from a judgment of County in favor of plaintiff, upon appeal from a justice of the peace, in an action brought to recover the amount alleged to be due for the rendition of certain personal services. Reversed.

the Court of Common Pleas for Hartford

The facts sufficiently appear in the opinion.
Mr. J. W. Johnson for appellant.
Mr. M. M. O'Sullivan for appellee.

exist before liability attaches to pay liquidated damages. Hathaway v. Lynn (Wis.) 6 L. R. A. 551.

Carpenter, J., delivered the opinion of the | decided in 1842, turned on that distinction.

But it was not alone, or principally, for cases This is an action by an assignee of a claim in court that the Act was passed. A refusal to for personal services. The answer is that pay for the reason given by the Statute, either Thomas Nolan, the assignor of the claim, en- with or without a suit, is an offense. If this tered the employment of the defendant in June, case was defended solely on the ground of a 1888, under an agreement that if he should at broken agreement to give notice, it would be any time desire to leave the employment of the difficult to deliver it from the operation of the defendant, he should give him two weeks' no- Statute. But the agreement is more extensive. tice thereof; and that in case he should leave It is coupled with a like agreement by the dehis employment without giving two weeks' no- fendant. Each party makes precisely the same tice of his intention to do so, he should forfeit agreement. Each party agrees to give the two weeks' wages to the defendant; and it was same notice, and in case of failure to submit to also agreed that the defendant should give No- the same forfeiture-Nolan to lose two weeks' lan two weeks' notice if he desired to dismiss wages, and the defendant to pay two weeks' him from his employment, and in case he failed wages in addition to payment for services actuto give such notice he should forfeit to him two ally rendered. In this there was nothing opweeks' wages; that he entered into the employ-pressive, one-sided, unfair or unreasonable. ment of the defendant and there remained until Presumptively it was mutually advantageous. October 16, 1888, when he left without giving two weeks' notice and without just cause; and that the two weeks' wages claimed by the plaintiff are the same two weeks' wages forfeited by him, etc.

party to such damages only as he could show that he actually sustained; whereas the parties in effect agreed that a sum equal to two weeks' wages should be regarded as liquidated damages.

wages were due, and therefore there were none | there-that a breach should entitle the other to pay, strictly speaking none to withhold. The case is not within the letter, and it certainly is not within the spirit, of the Statute. The ground on which the court placed its judgment is equally untenable, and partly for reasons already suggested. It virtually puts into the contract what the parties did not place

There is error and the judgment is reversed.
In this opinion the other Judges concurred.

IDAHO SUPREME COURT.

undertakes to prevent the performance of an impossibility; hence, in effect, is void. Conceding, however, that it may be construed to prohibit the exportation of fish, as the Legisla ture undoubtedly designed it, is it in violation of the section referred to of the supreme law of the land? This question was involved in the court below, in the demurrer to the indictment, on the exceptions to the instructions, and in the motion for arrest of judgment, and is saved by appellant's exception to the ruling of the court in those matters.

The provision of 8, art. 1, of the Constitution of the United States, that "Congress shall

APPEAL by defendant from a judgment of have power... to regulate commerce with the District Court for Bingham County foreign nations and among the several States," convicting him of a violation of the Statute having been so frequently and fully considered against shipping fish from the Territory. Re-by the ablest, including the highest, courts in

versed.

The facts sufficiently appear in the opinion.
Messrs. Hawley & Reeves for appellant.
Mr. R. Z. Wood, Atty-Gen., for respond-

ent.

Beatty, Ch. J., delivered the opinion of

the court:

To each

the nation, it will not be expected we shall, to any length, now attempt its discussion. It is clearly settled and conceded by all, that the above provision of the Constitution confers upon Congress the exclusive power to regulate commerce between the States, and any statute which attempts to prohibit the shipment into or out of a State of any lawful commodities or articles of commerce or trade is in conflict therewith, and necessarily void. State is reserved the power of regulating coming across its boundary lines. The State may merce within its borders, but not that extendalso, under its police power, enact such laws as are necessary to the protection of the lives, the health and comfort of its citizens, and for the promotion of good order within its limits. But whenever, under the pretence of an exerThe apcise of its police power, the State enacts any

The appellant, Thomas Evans, was indicted with George Rae for a violation of section 7193 of the Revised Statutes of Idaho, as same is amended by Act of the Fifteenth Legislative Assembly, which, as amended, reads: "It is unlawful for any person in this Territory to make any dam, or use any nets, seines, fishtraps or any similar device or measures for catching fish, or to ship the same out of this Territory for speculative purposes.'

pellant, Evans, alone, was tried upon this charge, and from the judgment rendered against him upon his conviction thereof he has appealed to this court. While the record contains various specifications of alleged error, the appellant has in his argument of the cause referred to but two, viz.: That the Statute does not prohibit the exportation of fish, and, if it does, it is in violation of 8, art. 1, of the Constitution of the United States.

statute which operates to prevent the free exchange between the States of lawful articles of trade, it is void because in conflict with that trated in a number of recent and interesting constitutional provision. This is clearly illus

cases.

Hannibal & St. J. R. Co. v. Husen, 95 U. S. 468 [24 L. ed. 529], is a case in which the State of Missouri, under the claim of exercising its It is true the Statute does not read as it un- of contagious cattle disease in the State, enacted police prerogative, and to prevent the spread doubtedly was intended it should, and it is surprising that it passed unchallenged the ora Statute forbidding the unloading of Texas deal of six readings in the presence of careful catle within the State, but allowing their paslegislators. Construed as it reads, it prohibits sage through it on board of cars or vessels. the exportation from this Territory only of The court held that cattle were subjects of dams, and the use of nets, fish-traps, and other lawful commerce, and could not be excluded, devices for catching fish, and not the nets, fish-except when diseased; that the Statute practitraps, etc., themselves. As dams cannot be shipped, and the use of a thing is an incorporeal right, this Statute, if construed by its words,

*Head note by BEATTY, Ch. J. 7 L R. A.

cally operated, not in the exclusion of diseased void. The business of butchering cattle, and cattle alone, but of all Texas cattle, and was shipping the dressed fresh meat into the surrounding States from the place of slaughter,