The opinion of the court was delivered by

Mr. Justice MoIver.

The plaintiff brings this action, as administrator of Margaret W. Petrie, to recover damages in behalf of her children, for injury sustained by them by reason of her death, caused by the alleged negligence of the defendant company. The testimony on behalf of the plaintiff tended to show that the deceased was a widow lady about the age of seventy-nine years, living with her son-in-law very near the track of the railroad, and that she was killed by a passenger train while attempting to cross the track of the railroad at or near a point where it was intersected by a highway. At the time of her death she left several children, none of whom were minors, but they had all been settled off to themselves several years before the death of their mother. The old lady had a small income, sufficient for her own support, derived from the rent of her land, but at the time of her death she was living with her daughter, who had been in bad health for several years, and whose husband was also disabled, and was attending upon them. The testimony tended to show that the deceased was quite active and vigorous for a person of her years, and was in the habit of rendering valuable services to her children and grandchildren, especially in cases of sickness, as she claimed to have read and to have some knowledge of medicine. There was, however, no distinct evidence of the value, in *314dollars and cents, of her services, the testimony being in general terms, that her services were of value to her children, in saving them physicians’ bills, and in many ways being of material assistance to them, and there was also evidence that she was in the habit of assisting one of her sons, who had been disabled in the war, by giving him money and other things.

The evidence tended to show that the country was open at the place where the disaster occurred, and that an approaching train could be seen and heard fora considerable distance; though there was also evidence that, on the side of the track from which the deceased was probably returning at the time she met her death, the view at one point was obstructed by a depression in the ground and by a sort of embankment or mound, as the witnesses called it, upon which wood was piled for the train, and also that there were some trees or bushes near the track which, it was claimed, obstructed the view. The day on which the disaster occurred — March 15, 1884 — it was cold and windy, the wind blowing down the road in a direction opposite to that from which the train approached, and when the body of deceased was found, her head was tied up with a veil and shawl, and she had on a large bonnet. The testimony was, that when the train reached the whistle post, some distance below the highway crossing, but how far was not shown, there were three or four short blows of the whistle on the engine, but there was no ringing of the bell, and the whistle was not kept blowing until the engine had crossed the highway.

At the close of plaintiff’s testimony, counsel for defendant moved for a non-suit upon the grounds hereinafter more particularly stated, which motion was refused. The defence then went into their testimony, and first offered the testimony of Mrs. Neighbors taken before the coroner’s inquest, which, at a previous trial of this case, had been offered by the defence and received then without objection. Plaintiff’s counsel objected and ihe testimony was ruled out. Counsel for defendant then offered the testimony of B. P. Faker, the engineer of the train which caused the death of plaintiff’s intestate, which had been offered in evidence by the plaintiff on a former trial of this case and received then without objection. This testimony was objected to by coun*315sel for plaintiff and was likewise excluded. After other testimony had been offered in behalf of the defence for the purpose of showing that the death of deceased was not caused by any negligence on the part of the defendant company, but was due to her own gross negligence, the case was submitted to the jury, under the charge of the court, who rendered a verdict in favor of the plaintiff for eight hundred and fifty dollars.

Defendant’s counsel then submitted a motion for a new trial upon grounds which are mostly embraced in defendant’s ninth, tenth, and eleventh grounds of appeal. This motion was also refused, and judgment having been entered in favor of plaintiff, defendant appeals and moves for a reversal of said judgment for the following alleged errors therein:

I. In overruling defendant’s motion for a non-suit.

II. In not admitting in evidence the testimony of Mrs. Neighbors.

III. In not admitting in evidence the testimony of B. F. Faker.

IV. In charging, “Was Mrs. Petrie guilty of gross or wilful negligence * * when the killing occurred ? * * * Did she go upon that track wilfully ? Did she put herself wilfully there with that intention ? Wilful negligence, gentlemen, is where one wilfully places himself in a place of known danger, as was illustrated to you in the case of one going upon a track for the purpose of committing suicide.”

V. In charging, “It is not necessary that any witness should have testified to the value in dollars and cents of these services.”

VI. In charging, “In this action, if the defendant is liable, funeral expenses of deceased may properly be considered as among the elements of damage, if it is satisfactorily proven that the plaintiff has paid the same.”

VII. In charging, “The failure to blow the whistle or ring the bell as required by statute, if such failure existed, would be negligence in the defendant, whether that failure occurred by reason of the employment of one of its officers in arranging some other parts about the machinery or not.”

VIII. In charging, “If a person should voluntarily put himself or herself upon the track and the engineer sees that person, *316it is his duty to endeavor to stop the train. To make no such effort when he saw such person would be gross negligence.”

IX. In refusing to charge, “If the deceased saw and heard the train approach the crossing, and notwithstanding this undertook to cross the track of defendant in front of tins train, and, but for this act of hers, she would not have been killed, then the plaintiff cannot recover.”

X. In refusing to charge, “It is the duty of a person approaching a railroad crossing, in order to avoid danger, to stop and look and listen, and if the deceased failed to use her sense of sight and hearing and walked upon the track of an approaching train in plain sight and hearing, and but for this act of hers would not have been killed, then she was guilty of such negligence as will defeat the plaintiff’s right to recover.”

XI. In refusing to charge, “If Mrs. Petrie saw or heard the train approaching, or if she, by the exercise of reasonable care, could have seen or heard it, then the defendant is not liable, even though it failed to blow the whistle or ring the bell as required by the statute.”

XII. In refusing to charge, “Even if the jury are satisfied in this case that the engineer was guilty of great negligence and want of care, yet the plaintiff cannot recover if the deceased w7as also guilty of contributory negligence; that is to say, that she did not observe proper care under the circumstances.”

XIII. In refusing to charge, “If the deceased failed to observe proper care under the circumstances, the plaintiff cannot recover.”

XIY. In refusing to grant defendant’s motion for a new trial.

The second and third grounds of appeal, relating to the admissibility of testimony, will be considered together, as they are really governed by the same principle. There can be no doubt that the testimony of these two witnesses, taken before the coroner’s inquest, was originally incompetent evidence in this case. Even on the trial of the partj7 charged with the murder of the person over whose dead body the inquest was held, the testimony of a witness taken at such inquest, and w7ho has since died, has been held incompetent (State v. Campbell, 1 Rich., 124); and certainly such testimony is not admissible on a trial between per*317sons who were not parties to the inquest and had no legal connection therewith.

Indeed, as we understand it, this proposition is conceded, but it is contended that inasmuch as this confessedly incompetent testimony was received without objection on the former trial of this case, it has thereby been made competent to introduce it in this trial, upon the well settled principle that where incompetent testimony has been received without objection, at the time it is offered, it thereby becomes competent. Burris v. Whitner, 3 S. C., 510, and many other cases to the same effect. But whether that principle can be applied to this case is what we are now called upon to determine. To so apply it would, it seems to us, ignore the nature and effect of a new trial, which is a trial de novo, and is conducted just as if there had been no previous trial. Neither party can rely upon the testimony as taken at the previous trial, nor is he bound thereby. On the contrary, each party must offer his evidence anew just as if there had been no previous trial, and when it is so offered it necessarily becomes subject to any legal objection which may be taken to it. Hence, while the testimony in question became competent in the former trial, because it was not objected to when offered, yet having been objected to when offered at the last trial it was properly excluded as incompetent on such trial. See 1 Greenl. Evid., § 163, and cases cited in note 1.

The first ground of appeal imputes error to the Circuit Judge in refusing the motion for a non-suit. That motion was based upon the following grounds: “First. Because plaintiff has failed to show affirmatively any negligence on the part of defendant, causing the death of Mrs. Petrie. Second. Because plaintiff has failed to show that the failure to ring the bell or blow the whistle continuously caused or contributed to the death of Mrs. Petrie. Third. Because the facts show that the accident was caused by the gross negligence of the deceased. Fourth. That the plaintiff has failed to show any beneficial interest or pecuniary loss to her children.” It will be observed that the phraseology used in all these grounds is open to objection, when the question is as to a motion for a non-suit, for in such a case the inquiry never is whether the evidence shows the existence of *318a fact material to the plaintiff’s case, as the question whether such a fact has been shoivn is a question exclusively for the jury. The true inquiry is, whether there is any evidence tending to show the existence of such facts as are material to the case of the plaintiff; and this inquiry is not presented by any one of these grounds. But waiving this, and assuming that the questions were presented in proper form, we will proceed to consider them.

The first two grounds are doubtless based upon the theory that while the failure to ring the bell or blow the whistle continuously until the engine had crossed the highway might be- evidence of negligence on the part of the defendant, yet there was no testimony tending to show that such negligence caused the death of Mrs. Petrie, or in any way contributed thereto; for in the face of the express terms of the statute [Ger. Stat., § 1483), requiring that the bell should be rung or the whistle sounded at a distance of at least five hundred yards from the point where a railroad crosses a public highway, and kept ringing or sounding until the engine has crossed such highway, and in view of the undisputed testimony that this positive requirement of the statute was not complied with, it could scarcely be denied that there was evidence of negligence on the part of the defendant.

But it being true, as contended for by appellant, that it is not sufficient to make out plaintiff’s case, that there should be simply evidence of defendant’s negligence, but that there must also be some evidence that the injury complained of was the result of such negligence [Glenn v. C. & G. R. R. Co., 21 S. C., 466), we will proceed to inquire whether there was any evidence tending to show that the failure on the part of the defendant to give the signals required by' statute in any way contributed to the injury complained of. We think there was some evidence tending to show that fact, and whether it was sufficient or not, was not for the Circuit Judge to determine on a motion for non-suit, but was exclusively for the jury, to whom it was properly left. The testimony is all set out in the Case, and we cannot go over it with a view of vindicating our conclusion. It is sufficient to say that the circumstances indicated by the Circuit Judge in refusing the motion for a non-suit, afforded some evidence that if *319the requirements of the statute had been complied with, the disaster might not have occurred. The high wind blowing at the time from a direction opposite to that from which the train was approaching, together with the manner in which the old lady’s head was wrapped up, probably to protect her from the cold wind, may have been sufficient to prevent her from hearing the signal which was given, and may not have been sufficient to have prevented her from hearing the signal which ought to have been given. We cannot say, therefore, that there was absolutely no evidence tending to show that the injury complained was the result of the negligence in failing to give the signal as required by thé statute.

The third ground clearly cannot be sustained, for it has been frequently held that contributory negligence is a matter of defence which must be proved to the satisfaction of the jury, and cannot therefore constitute a ground for a non-suit. Carter v. Railroad Company, 19 S. C., 20; Darwin v. Railroad Company, 23 Id., 531, and many other cases.

We come next to the fourth ground of the motion for a non-suit, and construing it in the same liberal spirit, it presents the inquiry whether there was any evidence tending to show that the parties for whose benefit this action is brought — the adult children of the deceased — had any beneficial interest in her life or suffered any pecuniary loss by her death. It would be sufficient for the present inquiry to say that there was some evidence that the deceased was in the habit of rendering services to her children which were of value to them, and that would be enough to carry the caseto the jury. It is contended, however, that unless the children had some legal claim on the deceased for their support, no damages can be recovered for their benefit, and as the children of deceased were all adults, living to themselves, they could not possibly have any such claim. This view is based upon the idea that the “injury” spoken of in the statute means only the deprivation of a legal right. This, it seems to us, is a narrow view of the statute, and, on the contrary, its language repels any such view. There is not only no language in the statute which requires such a restricted signification to be placed upon the word *320“injury,” but some of its terms indicate that such was not the sense in which the word was used.

The language of section 2184 of the General Statutes is as follows : “Every such action shall be for the benefit of the wife, husband, parent, and children of the person whose death shall have been caused, * * * and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom, and for whose benefit, such action shall be brought, and the amount so recovered shall be divided among the before mentioned parties in such shares as they would have been entitled to if the deceased had. died intestate, and the amount recovered had been personal assets of his or her estate.” Now, it will be observed that the provision is that the damages recovered, in case there are only children left, shall be divided equally amongst all of the children, whether some of them be minors or not; and this negatives the idea that the claim for damages rests upon the theory that the beneficiaries have been deprived of some legal right, for in the case supposed, while minor children would have a legal claim on their father for support, the adults would have no such claim, and yet by the terms of the statute no distinction is made.

Again, it will be noticed that our statute, unlike many others of a similar character, does not speak of pecuniary loss or injury which might possibly tend to show the injury for which damages are allowed, was confined to the deprivation of some legal claim susceptible of measurement by a pecuniary standard, but its language is broader, and gives the jury the right to award “such damages as they may think proportioned to the injury resulting from such death;” and as it is quite certain that the beneficiaries of the action may sustain injury by the death of a relative, over and above the loss of any legal claim which they may have upon such relative, it follows that the view contended for cannot be sustained. The conclusion which we have reached is sustained by high authority. In the case of Railroad Company v. Barron (5 Wall., 90), the view contended for by the appellant was pressed by counsel in an elaborate argument, but the court held that it was not necessary that the beneficiaries should have had a legal claim on the deceased, if he had survived, for their sup*321port. Our view is also supported by many other authorities cited in respondent’s argument.1 Indeed, in the case we have cited from Wallace, supra, Nelson, J., in speaking of the view contended for by appellant, says: “This construction, we believe, has been rejected by every court before which the question has been presented.” It is quite clear, therefore, that there was no error in refusing the motion for a non-suit.

The language of the charge excepted to in the fourth ground of appeal is only partially quoted, and fhe purpose of it seems to be to convey the idea that the Circuit Judge intended the jury to understand, or left them to infer, that there could be no gross negligence on the part of the deceased, unless she went upon the track for the purpose of committing suicide. But when the entire paragraph, from which these extracts are taken, is read (and for the purpose of a full understanding of the several exceptions, the entire charge should be embraced in the report of the case], it is plain that no such inference was open to the jury. For the judge, after defining gross negligence in terms to which no exception has been taken, proceeded to submit the question of fact to the jury — whether Mrs. Petrie was guilty of gross negligence. What he said about suicide ivas only as an illustration, and was properly qualified by the following remark: “That would be an extreme case of wilfulness.”

That portion of the charge excepted to in the seventh ground of appeal, taken in the connection in which it was used, was clearly not erroneous. Where the statute requires a certain duty from a railroad company, the failure to perform such duty cannot be excused where the company has failed to provide a sufficient number of officers or agents to perform that and other necessary services in running the train. Hence the fact that the engineer was engaged in arranging the air-pump while approaching the *322crossing, and for this reason failed to give the signal required by statute, would be no excuse for such failure, unless it was shown, as the judge suggested, that the necessity for working on the pump arose from a sudden and unexpected emergency ; and there was not only no evidence of this, but, on the contrary, the testimony shows that this work might just as well have been done before approaching or after leaving the highway crossing.

That portion of the charge which forms the basis of the eighth ground had no application whatever to the case as made by the testimony and was purely speculative. Hence, conceding that there was error in telling the jury that a supposed state of facts would constitute gross negligence, it is quite certain that such error could not possibly have affected the result in this case, for there was not only no evidence whatever that the engineer saw the deceased on the track in front of his train, but, on the contrary, the uncontradicted evidence is that neither the engineer nor any other officer connected with the train knew' that she had been run over or knocked off the track.

The requests to charge in the ninth, tenth, and eleventh grounds of appeal, which also constitute the principal grounds for the motion for a new trial, were properly refused. The fundamental vice in all of these requests, is, that they called upon the judge to pass upon questions of fact. The rule, as we understand it, is that the province of the judge is to give the jury a definition of the term negligence, or gross negligence, and then it is the exclusive province of the jury to determine whether the facts pwoved in a given case constitute negligence or gross negligence. Bridger v. Railroad Company, 25 S. C., 30, 31. As is well said by the Chief Justice, in that case, in speaking of this matter of negligence: “All agree as to the general definition — the absence of ordinary care. But who is to say whether the facts alleged and proved show this absence — the judge or the jury? The judge is required to charge the law, and the jury to find the facts. The law, however, does not state what facts proved will show the absence of ordinary care. It could not do so as applicable to every case which arises. The cases involving this question are so different in their facts, so various, so complicated, and arising under so many different circumstances, that it would be *323utterly impossible to lay down any general principle of law by which every special case could be measured and tested as to the fact of negligence, and which would enable a judge to say to the jury, as matter of law, such and such facts show the absence or presence of ordinary care;” and then he lays down the rule substantially as we have stated it. Of course, the same rule applies where the question is as to gross negligence, as in cases of ordinary negligence. This being the rule, it follows that the Circuit Judge committed no error in refusing to charge that the existence of certain facts precluded the plaintiff’s right to recover; for that would, in effect, have been a charge that a given state of facts constituted gross negligence, whereas that was a question for the jury. It will be observed that the question is not whether the judge erred in simply refusing to instruct the jury that it was the duty of a. person approaching a railroad crossing to use his senses of sight and hearing in order to protect himself from the danger of a collision, but the question is, whether he erred'in refusing to go further and instruct the jury that such failure was gross negligence, and would, in this case, defeat the plaintiff’s right to recover.

The requests to charge wdiich constitute the basis of the twelfth and thirteenth grounds of appeal were not really refused. The statute (General Statutes, section 1529) provides that where a person is injured by a collision with a railroad train at a highway crossing, by reason of the negligence of the company to give the required signals, the company shall be liable for the damages thereby sustained, “unless it is shown that, in addition to a mere want of ordinary care, the person injured * * was, at the time of the collision, guilty of gross or wilful negligence, or was acting in violation of the law; and that such gross or wilful negligence or unlawful act contributed to the injury.” Nothing is said in the act about observing proper care, and hence the Circuit Judge, in dealing with these requests, declined to adopt the word “proper,” but following the language of the statute, instructed the jury, as he had done before, that if the deceased was guilty of gross negligence which contributed to the injury, then she could not recover, and that, taking the words, if she did not observe proper care, to mean that she was guilty of gross negligence, *324then the request was good law. In this there certainly was no error, for he simply translated the incorrect language of the request into the more accurate terms employed in the statute.

The fourteenth ground of appeal has already been considered, except in so far as the motion for a new trial was based upon the ground that the damages given were excessive. It is so well settled that the decision of the Circuit Judge upon this point is final, that it is only necessary to refer to some of the cases. Steele v. C., C. & A. R. R. Co., 11 S. C., 589, and the cases therein cited.

It only remains to consider the questions raised by the fifth ground of appeal, as to the mode of proving the amount of the damages, and by the sixth ground as to the elements which may enter into the estimate. As to the former question, it is yery obvious that in many cases, slander, &c., it is impossible to show by evidence the amount, in dollars and cents, of the damages sustained, and yet we have never heard it suggested even that the inability to do this precludes the jury, when the facts and circumstances are laid before them, from making their own estimate of the amount of the damages recoverable in such cases, and we see no reason why the same cannot be done in a case like this. Even if witnesses had undertaken to testify as to the amount of damages, in dollars and cents, which the beneficiaries in this action had sustained by the loss of their mother, such testimony could only have been the opinions or estimates of such witnesses, based upon the facts and circumstances of the case, and it seems to us that the jury was quite as competent to make such estimate as the witnesses would have been. See what is said upon this subject by Nelson, J., in Railroad Company, v. Barron, supra.

As to the other question — whether the funeral expenses could properly constitute an element in estimating the amount of the damages — it seems to us that the authorities cited by respondent’s counsel1 in his argument, fully sustain the ruling of the Circuit Judge.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.

Fait. Ry. Acc. L., $$ 405, 413; Deer. Neg., § 422; 3 Wood Rail. L., 1539, 1540; Lett v. Railway Co., 21 Am. & Eng. R. R. Cas., 189; Railroad Company v. Maryland, Ibid., 203; 3 Sulk. Dam., 282, 283; Cregin v. Railroad Company, 19 Hun, 341; Railroad Company v. Noell, 32 Gratt., 394; Tilley v. Railroad Company, 29 N. Y., 252; Railroad Company v. Barron, 5 Wall., 453; Railroad Company v. Brown, Ibid., 90; Pierce R. R., 388; Carey v. Railroad Company, 48 Am. Dec.

3 Wood Rail., 1539; Pierce Rail., 397; Patt. Acc. Rail. L., § 412; Murphy v. R. R. Co., 88 N. Y., 445; Deer. Negl., § 420.