The questions, which the record of this case presents, arise upon the ruling denying appellant’s motion for a new trial.
William A. Lowery, the appellee’s intestate, lost his life hy drowning in the Wabash and Erie canal, at a point within, or near, the corporate limits of the city of Delphi. There ■was evidence tending to prove that the intestate’s death was •attributable to the negligence of the appellant in failing to place barricades about the dangerous place, or to guard it by .signals or warnings of danger. There was also evidence •tending to show that it was the duty of the city to properly protect passengers from danger, inasmuch as one of the public streets of the city either ran up to and across the danger.gerous place or terminated in very close and direct proximity to that point.
The appellee was permitted to prove, over the objection of the appellant, that the intestate left his family in a destitute condition. This evidence was incompetent. Chicago, etc., R. W. Co. v. Bayfield, 37 Mich. 205; Pittsburg, etc., R. W. Co. v. Powers, 74 Ill. 341; The City of Chicago v. O'Brennan, 65 Ill. 160; Sherlock v. Alling, 44 Ind. 184; Pennsylvania R. R. Co. v. Books, 57 Pa. St. 339; Illinois, etc., R. R. Co. v. Baches, 55 Ill. 379; Shea v. Potrero, etc., R. R. Co., 44 Cal. 414. The appellee, however, insists that the objection to the admission of this evidence was not properly made, and that there is no question saved. The position of the appellee is, that, as the appellant stated no specific objections to the evidence, his exception was fruitless. The bill of exceptions contains.this statement: “At the proper time, the said defendant, before the trial began, moved the court to
The appellee was permitted to prove that no barricades or warnings of danger were placed about the point where the' public street of the city intersected or approached the canal. We think there was no error in this. There was some evidence tending to show that the place where the deceased: was drowned was within the corporate limits, and that the-street ran to the canal at the point where he attempted to-cross. Conceding, however, that this was not so, it certainly was shown that the street of the city, as usually travelled, approached very near the canal, and that the appearances were such as would have indicated to a man of ordinary prudence, that it was the usual crossing place. If theieis a dangerous place in or near the usually travelled part of the highway, the municipal authorities must use ordinary care to protect persons who make lawful use of the street,.
Evidence was given by the appellee, that other persons had! received injuries at the place where the deceased was drowned,, at times anterior to his death. This the appellant contends, with vigor and ability, was erroneous. There is some conflict in the authorities. In Collins v. The Inhabitants of Dorchester, 6 Cush. 396, such evidence was declared incompetent. It was said to be “Testimony concerning collateral facts, which furnished no legal presumption as to the principal facts in dispute, and which the defendants were not bound to be prepared to meet.” In support of the conclusion of the court, the following authorities were cited Standish v. Washburn, 21 Pick. 237; 2 Stark. Ev. 381; 1 Greenl. Ev., secs. 52, 448. The cases of Aldrich v. Pelham, 1 Gray, 510; Kidder v. Dunstable, 11 Gray, 342; Blair v. Pelham, 118 Mass. 420, assert substantially the same doctrine as Collins v. Dorchester, supra.
In Darling v. Westmoreland, 52 N. H. 401, the doctrine of Collins v. Dorchester is vigorously assailed in an unusually able and elaborate opinion, and the opposite doctrine declared to be correct, both upon reason and authority. In the recent case of Moore v. The City of Burlington, 49 Iowa, 136, the court adopted in effect, although not expressly, the rule declared in the New Hampshire case. The
This court has adopted and enforced this doctrine In the case of The Pittsburgh, etc., R. W. Co. v. Ruby, 38 Ind. 294, this question was exhaustively discussed, and the point expressly ruled. It was there held that evidence of specific facts was competent for the purpose of charging the corporation with notice. We are unable to perceive any difference in principle between the case in hand and the class of cases of which those last cited are types. If specific acts are proper for the purpose of showing notice to the owners of machinery or the employers of servants, it must be competent for the purpose of showing notice to a municipal corporation, that there is a dangerous place within or very near the limits of the highway. The cases directly ruling the point here under immediate mention outweigh the cases in Massachusetts, for the latter are all built upon a single and not very carefully considered case. The doctrine of the cases in that court can not be reconciled with the doctrine of the class of cases represented by The Pittsburgh, etc., R. W. Co. v. Ruby. This last doctrine has been recognized as sound by the Supreme Court of Massachusetts, and that court, able and distinguished as it confessedly is, has, it seems to us, thus sanctioned a doctrine inconsistent with that of Collins v. Dorchester. Gahagan v. Boston, etc., R. R. Co., 1 Allen, 187; Ross v. Boston, etc., R. R. Co., 6 Allen, 87. It also seems to us that the doctrine of Collins v. Dorchester can not be harmonized with Crosby v. Boston, 118 Mass. 71,
There was no error in permitting the appellee to read in evidence the record of the common council showing the report of a committee appointed by that body, and the action taken thereon.
Wo are aware that this point has been differently ruled by the Supreme Court of Massachusetts in Dudley v. The Inhabitants, etc., 1 Metcalf, 477, and Collins v. Dorchester, supra. The municipal corporation is represented by the common council, and the acts of that body done in regular session, and within the scope of the powers conferred by the charter, are binding upon the corporation. Corporations can act only by agents, aud certainly the authorized acts of the highest class of corporate agents in the discharge of the duties of their agency are competent against the principal. We are at a loss to imagine a higher degree of evidence than that supplied by the official acts of the common councilmen, performed in regular session of the municipal legislature. The Massachusetts rule is unsound upon principle, and is opposed by the very decided weight of authority. Requa v. The City of Rochester, 45 N. Y. 129, on p. 137; The City of Chicago v. Powers, supra; Thornton v. Campton, 18 N. H. 20; Monaghan v. The School District, etc., 38 Wis. 101; Erd v. City of St. Paul, 22 Minn. 443.
In criticising instructions given by the court, counsel say that many of them are erroneous for the reason that they assume the existence of disputed facts, and the particular pails of the instructions complained of are specifically pointed out. We have examined the instructions, and are unable to agree with appellant’s counsel upon this point. 'The discussion of the rulings upon the evidence disposes for the most part of all the questions arising upon the instructions except the questions presented by the instructions upon the subject of damages to be awarded in case of re
Where, as here, facts are allowed to go in evidence, which ■furnish an incorrect basis for the assessment of damages, .an instruction which directs the jury to determine from “all the facts” the amount of recovery is erroneous. The jury are° not to determine the amount of recovery from all the facts, but only from such facts as form proper elements for consideration in computing damages. Where there are facts •given in evidence, which would, if considered by th'e jury in determining the amount of damages, necessarily lead to ¡an incorrect assessment, it is wrong to instruct the jury that it is their duty to consider “all the facts.” In the present •case, evidence was allowed to go to the jury of the destitute ■condition of the family of appellee’s intestate, and the ■instruction directed the jury to consider “all the facts,” ¡■and, of course, the direction embraced this among other facts. The evidence of this fact was unquestionably empha.sized by its going to the jury over the objection of the appellant. In directing the jury to consider “all the facts,” they were required to consider the fact that the appellee’s intestate left his family in poverty and want, and this was an element which ought not to have entered into the consideration of the jury. If the intestate had died the richest of men, it could not have decreased the damages, and, if he had -died the poorest, it could not have enhanced them. There are not two measures, one for the kinsmen of the poor, and one for the kinsmen of the rich ; there is one standard only, .and that is for all, the rich and the poor alike.
The jury have, to be sure, a very broad discretion upon the subject of damages. The City of Indianapolis v. Scott, 72 Ind. 196; The Indianapolis, etc., R. R. Co. v. Stout, 53 Ind. 143. Broad as this discretion is, it is to be exercised upon proper facts. Improper elements, influencing not the judgment, but the passions or prejudices, should not- form any part of the elements, out of which the judgment of the jurors - is to be constructed. When the facts proper, for considera
For the error committed in giving this instruction, the judgment is reversed at the costs of appellee .
Petition for a rehearing overruled.