Railroad Co., 50 Conn. 379; Granger v. Railroad Co., 146 Mass. 276, 15 N. E. Rep. 619; Duvall v. Railroad Co., 105 Mich. 386, 63 N. W. Rep. 437; and Railroad Co. v. Colvin, 118 Pa. St. 230, 12 Atl. Rep. 337. In Sheehan v. Railroad Co., supra, the court said, in substance, that if a person goes upon a railway track regardless of the warning to him by the presence of the gates across the approach, and is injured by placing himself in the pathway of an approaching train, without wanton negligence on the part of the railway company's servants, he cannot recover whatever he may say about looking and listening. Though the court treated the failure to observe the approaching train as a distinct act of negligence, precluding a recovery, the act being on the right of way at all, under the circumstances, was also deemed fatal, Cleary v. Railroad Co., supra, being cited as controlling, and the effect of the opinion and decision given as stated. In Granger v. Railroad Co., supra, the circumstances were that it was dark and misty, so that the lights had already been set for the night; that there were four tracks, and crossing gates let down so as to bar the approach thereto for the entire width of the street, including the sidewalks; that a train had entered upon the crossing on the first track and another was approaching on the third track and only a short distance away. The person injured, disregarding the warning by the gates being down, passed under or around them and successfully avoided the first train, but was struck by the second about seventeen feet further on and killed. The court below sent the case to the jury with the result that there was a verdict and judgment for plaintiff. On appeal the judgment was reversed, the court saying that the presence of the gates sufficiently warned the intestate that it was dangerous to cross the tracks, not that the gates were down for the first train only, which was in plain view, but for any train that might be about to pass the crossing; that the scope of the warning was that the defendant required for the present the exclusive use of the entire crossing for its business, and it was negligent for the deceased to pass the gates and go upon the crossing at all under the circumstances. Perhaps a still stronger case than any before cited is Debbins v. Railroad Co., 154 Mass. 402, 28 N. E. Rep. 274. There a person went upon the railway tracks regardless of the crossing gates being down, in order to board a train that was standing on one of the tracks. There was another train approaching and in dangerous proximity, but obscured from view by the first train mentioned. It was dark and there was no headlight or other means of warning of the approach of the moving train, other than the position of the gates and the noise. Plaintiff was struck by the latter train and severely injured. The court held VOL. V-8

that he was guilty of gross negligence; that if he had been a mere traveler and undertaken to cross the tracks while the gates were down, knowing that fact, he would have taken the risk and could. not have recovered for any injury received from a passing train; that if the fact that he desired to board the train excused him from passing the gates at all under the circumstances, he was yet bound, as he proceeded, to use all the caution which the nature of the case would permit, and that such precaution required more than to glance in the direction of the approaching train (1).

The reasoning of the cases to which special attention has been called, and of others cited, applies to the facts of this case, and meets with unqualified approval. They are in accordance with well settled principles in the law of negligence and must control here in favor of an affirmance of the judgment appealed from.

Judgment affirmed.

1. As to other actions for damages for injuries sustained at RAILROAD AND STREET CROSSINGS, see the cases reported in this volume on pages 1, 92 and 110, and note of recent cases thereon, pp. 1-3, ante, and the current numbers of Vol. 5 Aм. NEG. REP.

For actions on the same topics, decided in 1897 and 1898, see Vols. 1-4,

AM. NEG. REP. The citations of the cases can be readily found by a reference to the TABLE OF CASES CLASSIFIED which precedes the INDEX in each of the volumes of the series of AMERICAN NEGLIGENCE REPORTS where the same are classified under the heading of CROSSINGS.

CLARE v. SACRAMENTO ELECTRIC POWER AND LIGHT COMPANY.

Supreme Court, California, December, 1898.

VERDICT - SUBSTANTIAL DAMAGES AWARDED THOUGH NO PECUNIARY LOSS SHOWN. — The grant of substantial damages is warranted when the evidence shows that plaintiff's hearing in one ear had been per. manently destroyed, that the sight of one eye had been seriously impaired and that his nervous system had received a shock from which he might never recover and which was such at the time of the trial as to impair his facility for transacting his former business, though his wages were not cut off or diminished by the injury and he had not been subjected to any pecuniary outlay or loss.

DEPARTMENT I. Appeal from judgment of Superior Court, Sacramento County, in favor of plaintiff.

L. T. HATFIELD, for appellant.

A. L. HART, for respondent.

HARRISON, J. — The plaintiff brought this action to recover damages for an injury alleged to have been sustained by him by reason of coming in contact with a wire used by the defendant to sustain one of the poles by which its trolley wire is supported, and which had been so negligently placed that, when the plaintiff came in contact with the wire, he received a current of electricity with which it had become charged, and was thereby permanently injured. The cause was tried by a jury, and a verdict rendered in favor of the plaintiff for the sum of $2,000.

The fact, as well as the extent of the plaintiff's injury, and whether it was caused by reason of the electric current, as well as whether the wire became charged with the electricity through the negligence of the defendant, were the issues which were submitted to the jury, and upon which evidence was introduced by each party. The evidence on the part of the plaintiff tended to support his allega tions upon these issues, with which the evidence on the part of the defendant merely created a conflict, and the verdict of the jury thereon must be accepted as conclusive.

The jury were instructed that the plaintiff was not entitled to exemplary damages, but only such as would reasonably compensate him for the injuries which he had received; and it is urged by the plaintiff that, inasmuch as there was no evidence before the jury tending to show the amount of pecuniary injury which he had sustained, the amount of the verdict is not sustained by the evidence;

that as he did not show that his earning capacity had been diminished by reason of the injury, or that he had been subjected to any pecuniary outlay or detriment, the jury should have given a verdict for only nominal damages. The evidence before the jury was such as to authorize them to find that the hearing in his left ear had been permanently destroyed; that the sight of his left eye had been seriously impaired; and that his nervous system had received a shock from which he might never recover, and which was such at the time of the trial as to impair his facility for transacting the business in which he had been engaged prior to the injury. In view of this evidence, it cannot be said that the jury disregarded the instructions of the court, or that the verdict is not sustained by the evidence. There is no standard by which the value of an eye or of an ear or of a limb can be computed, or which will determine the amount of money which will compensate a person for the loss or impairment of one of his senses. The right to compensation for a personal injury is not dependent upon the fact that the wages of the injured person were cut off or diminished by reason of the injury, nor is the amount of compensation for such injury to be measured by the amount of his income or wages. In cases of this character there can be no direct evidence of the amount of damage sustained, or the amount of money which will be a compensation for the injury; but it is sufficient to show to the jury the extent of the injury, and the amount of their verdict thereon is to be determined in the exercise of an intelligent discretion; and, unless the amount of the verdict is such. as to indicate that it was given under passion or prejudice, it will be sustained. In view of the evidence in support of the injury to the plaintiff, the verdict in the present case cannot be regarded as excessive. Treadwell v. Whittier, 80 Cal. 574, 22 Pac. Rep. 266; Morgan v. Railway Co., 95 Cal. 501, 30 Pac. Rep. 601; Sloane v. Railroad Co., 111 Cal. 668, 44 Pac. Rep. 320.

Various exceptions were taken by the defendant to the rulings of the court upon the admission of evidence, and we have carefully examined the record and the exceptions so taken, but find therein nothing deserving of extended consideration, or which would justify a reversal of the judgment.

The record also contains certain instructions given to the jury by the court, but does not show that any exception was taken thereto, except to those given at the request of plaintiff, and in these we find no error.

The appellant has filed certain affidavits to the effect that other instructions of the court were excepted to on its behalf, and has asked that the statement on motion for a new trial be amended so

as to show that fact. It is sufficient to say that the action of the trial court is to be reviewed here upon a transcript of the records of that court, and that we have no power to amend those records.

The judgment and order are affirmed.

GAROUTTE and VAN FLEET, JJ., concurred.

McCURRIE v. SOUTHERN PACIFIC COMPANY. Supreme Court, California, December, 1898.

CAR DOOR SLAMMING UPON FINGERS OF PASSENGER. - Where a passenger while standing in the doorway of a car of a train which had stopped at a station was thrown off his balance by a sudden backward and forward jerk of the car, and to save himself from falling caught hold of the casing of the door, which slammed upon his fingers, the question of the company's negligence was for the jury. PASSENGER NOT INTENDING TO ALIGHT, LEAVING SEAT. — Whether a passenger who went upon the platform of a car of a train that had stopped at a station, to see another person and not for the purpose of alighting, was thereby guilty of negligence was for the jury.

APPEAL from judgment of Superior Court, City and County of San Francisco, in favor of defendant.

F. J. CASTELHUN, for appellant.
W. H. L. BARNES, for respondent.

HARRISON, J.-Action to recover damages for personal injury alleged to have been sustained by reason of the negligence of the defendant. The appeal is from a judgment in favor of the defendant and from an order denying a new trial. The plaintiff testified that he purchased from the defendant a ticket to go from San Francisco to Tennant's station, in Santa Clara county, and that he boarded the train at Third and Townsend streets in San Francisco. He further testified: "When we arrived at Twenty-fifth and Valencia streets, the brakeman or conductor opened and fastened the front door of the car in which we were sitting in the usual way. I waited until I saw the door was fastened and the train stopped, and then got up to look for my son, who was waiting to see us. I went to the front to beckon to him, because the train does not stop long there. As I got to the platform, the train suddenly backed with a very great jerk, so violently that it threw me off my balance, and to save myself I caught hold of the casing of the door. Just then the door swung to and struck my hand, cutting three fingers very severely;" and on cross-examination he testified: "I left my seat after the train