The judgment of the Supreme Conrt was entered, January 6th 1879,
Per Curiam.
This is rather an uncommon case. The agreement of the defendants was to give the plaintiff a pass over their railroad for himself and his family for his lifetime, as the consideration of his release of the right of way over his land. The pass was given for awhile, and then refused, and this action was to recover damages for their breach of contract.
The contract was not simply for a right to ride free upon the rail*246road. Possibly if in those terms the plaintiff might recover damages for each refusal, or combine his claims for damages for each refusal in a single action to cover any period, as a quarter or a year. But the contract being for a pass, or in other words a free ticket, this document was the principal feature in the bargain. It is obvious that a mere contract to ride free of charge would subject both parties to inconveniences. The company of necessity must operate its road by agents, viz., conductors of trains, and would be liable to suits through the mistakes or ignorance of their servants. So, too, the plaintiff without the evidence of his right would be liable to be refused often when his business might be most urgent. But a pass or free ticket would relieve both parties from difficulty. The pass being the principal feature of the contract was therefore made its chief subject, for it was the document to be furnished as the evidence of the plaintiff’s right. Hence we see no other rule to be applied to the case but damages for the refusal of the pass, as the only cause of action, and this being single, to be-compensated by such damages, as a pass for life for himself and family would be worth. It is true it is difficult to estimate its value because of two uncertainties — one the length of life, and the other, the number of passages he and his family would probably demand. Still this uncertainty, like many others, must be made to approximate certainty as closely as the nature of the case will admit of. The burthen of proof lay on the plaintiff, who knew the number of his family, and the customary number of trips made by himself and them.
Upon the whole, we see no manifest error in the record.
Judgment affirmed.